Con Law II Always ask Whats the right? Why? How important is it? Whats the standard?

Due Process, equal protection, freedom of speech, freedom of association, freedom of religion Substantive Due Process Lochner: Labor laws New rule for economic regulation: rational basis test, reasonable relation to some legitimate objective Fundamental rights Term strict scrutiny comes from Skinner v. Oklahoma, a case about forced sterilization. Emanations from penumbras, Griswold v. Connecticut. Right to privacy. Dissent: I like my privacy as well as the next one, but I am nevertheless compelled to admit that the government has a right to invade it unless prohibited by some specific constitutional provision. J. Black. Right to privacy: Contraception, Abortion, Marriage, Procreation, (private) Education, family Relations Right to purchase and use contraceptives for both married and unmarried couples Griswold v. Connecticut Abortioncompeting important and legitimate purposes, health of mother, life of fetus (at some point this becomes compelling) Planned Parenthood v. Casey rule: States may not prohibit abortion, but may regulate so long as they do not create an undue burden. Undue burden test: purpose or effect is to place a substantial obstacle. Purpose if it is calculated to hinder, effect if it actually prevents or prohibits (incidental effect not enough, more expensive not enough) NO UNDUE BURDEN: informed consent, detailed record-keeping by abortion facility, parental consent for minors Roe v. Wade trimester framework: state cant regulate in first, can regulate for reasons reasonably related to maternal health in second, and can protect interest in life of fetus by regulating and even proscribing in third.

Abortion funding: no right to abortion funding for indigents Spousal consent not OK No abortion counseling by programs receiving federal family planning funds State employees cant perform abortions, abortions cant be performed in public facilities, regardless of who pays If regulation does not pose an undue burden, then the test is rational relation to legitimate goal of protecting unborn fetus or the health of women. Undue burden is substantial obstacle. Huge health exception from Casey. Abortion is protected liberty interest under privacy, not fundamental right. Marriage and family relationships Marriage is a fundamental right, part of Griswold line of privacy rights. Loving v. Virginia. OK: Interracial marriage, marriage when a man has outstanding child support, prison inmates marrying. Household arrangements: Related people have right to live together, unrelated do not Parental rights: parents have fundamental right to raise children without state intervention, states cant infringe without narrowly tailored act related to compelling interest Tradition or philosophy or social consensus? What makes a fundamental right? Problem is ignored until late in book. Michael H. v. Gerald D. Traditionally, strong respect for relationships within family unit, so even a 98 percent chance child was fruit of affair doesnt give probable biological father visitation rights Bowers v. Hardwick: overruled case upholding law banning sodomy. Laws based on essentially moral arguments are permissible. Lawrence v. Texas (2003): Case not about right to sodomy, but right to privacy. Moral arguments now seem less permissible. OConnor concurs on Equal Protection grounds. Constitutionally protected interest in creating a personal relationship in which sexuality finds overt expression in intimate conduct with another person. Right to die/ euthanasia Cruzan: states interest in protecting and preserving human life is strong Right to refuse lifesaving care, no right to die

CAMPER Equal Protection Must treat like cases alike, but may treat unlike cases accordingly Race-strict scrutiny Education Brown v. Board of Education. Separate but equal is inherently unequal.

Free speech limits on defamation: Public official cant recover damages for defamatory falsehood unless he proves with convincing clarity that statement was made with actual malice or reckless disregard. NYT v. Sullivan Unprotected speech: incitement, fighting words, defamation,

Freedom of Expression Freedom of Association Freedom of Religion