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state or local government law that interferes with someone's fundamental rights or liberty interests
what is the liberty interest involved?
Marriage, Procreation, custody, living together, child rearing, adoption, voting, travel
is it a fundamental right or not?
is it explicitly stated in the constitution or fall under a penumbra?
what are the fundamental rights for substantive due process
the ones that are explicitly stated in the bill of rights and
right to marry, right to abortion, right to procreation, right to contraception, right to travel, right to live with extended family, right to raise your children, right to private intimate sexual conduct, right to vote, right to the courts, right to refuse medical treatment (sorta)
test for abortion
the state may not impose an undue burden or place a substantial obstacle in the way of a woman who is trying to get an abortion.
can get an abortion before viability of the fetus and not after viability unless the baby would jeopardize the life of the mother.
State may impose regulations on the abortion process as long as they don't place an undue burden or a substantial obstacle in the way of the woman.
can have a 24 hour waiting period.
must have informed consent (told her options, told about operation, saw pictures)
no spousal consent
Minors can be required to have parental consent as long as there is judicial bypass
Test for non-fundamental rights
look at history and tradition of that right. has it been protected?
analogize it to other cases use right to privacy and "personal autonomy"
if fundamental right what test do you use
the state must prove the strict scrutiny test
the state must show that they have a compelling government interest that is necessary to achieve their goal.
The means must have a tight fit to the ends.
ex: homosexuals can't get married. the challenger is going to say evaluate under SS. The state has the burden to show:
1) what is the state's compelling governmental interest? that they are protecting the public from AIDS.
2) that prohibiting same sex marriage is necessary to achieve protection of the public's health.
this is most likely going to fail, and therefore the law will be unconstitutional
If it is a non-fundamental right
the state is going to say that it should be evaluated under a RB test.
the state must have a legitimate governmental interest that is rationally related to the objective.
ex: same sex marriage
the challenger has the burden to prove that the state does not have a legitimate governmental interest that is rationally related to the states objective.
the legitimate governmental interest is the protection of the public from AIDS. the challenger is going to say that prohibiting same sex marriage is too attenuated from protecting people from AIDS. but this is most likely going to fail because any governmental interest will be sufficient. therefore the law will be constitutional.
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