12. Con Law: Fundamental Rights

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Anonymous
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145360
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12. Con Law: Fundamental Rights
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2012-04-02 21:16:37
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fundamental rights con law rubidoux
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fundamental rights
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  1. FUNDAMENTAL RIGHTS:
    GENERAL PRINCIPLES
    If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not to others, it is an equal protection problem. The applicable standard is always strict scrutiny. Thus, to be valid the gov'tal action must be necessary to protect a compelling interest.
  2. RIGHT OF PRIVACY:
    MARRIAGE
    Although not all cases examining marriage regs clearly use the compelling interest standard, a law prohibiting a class of adults from marrying is likely to be invalidated unless the gov't can demonstrate that the law is narrowly tailored to promote a compelling or overriding interest.

    The Court has recognized a marital zone of privacy, so it will likely grant broader protection to private sexual relations between married persons than it does concerning non-married persons.

    A statute or regulation that restricts the constitutional rights of prison inmates will be upheld as long as the statute is reasonably related to legitimate penological interests. Even so, a prison reg that prohibited marriage of an adult prisonerunless the prison superintendent approved was held invalid because the regulation was not reasonably related to any asserted penological interest.
  3. RIGHT TO PRIVACY:
    USE OF CONTRACEPTIVES
    A state cannot prohibit distribution of nonmedical contraceptives to adults except through licensed pharmacists, nor prohibit sales of such contraceptives to persons under 16 who do not have approval of a licensed physician.
  4. RIGHT TO PRIVACY:
    ABORTION
    The right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state. However, the court has also held that the state has a compelling interest in protecting the woman and fetus, which may be in conflict.

    • PRE-VIABILITY RULE: A state may adopt regs protecting the mother's health and the life of the fetus only if the reg does not impose an undue burden or substantial obstacle on the woman's right to have an abortion. A statute will not impose a substantial obstacle or an undue burden simply because it has the incidental effect of making it more difficult or more expensive to obtain an abortion.
    • -- Informed consent -- no undue burden;
    • -- Waiting period -- no undue burden;
    • -- Parental consent -- no undue burden;
    • -- Spousal consent -- UNDUE burden;
    • -- Physician only requirement -- no undue burden;
    • -- Partial-birth abortion ban -- no undue burden.

    POST-VIABILITY RULE: The state's interests in the fetus's life can override the woman's right to choose an abortion, but it does not override the state's interest in the woman's health. Thus, after viability the state can prohibit a woman from obtaining an abortion unless the abortion is necessary to protect her life or health.

    Neither federal nor local gov'ts are required to grant medical benefit payments for abortions to indigent women, even if they grant benefits to indigent women for childbirth services. A state may prohibit public abortion funding by prohibiting the use of public facilities for abortions and prohibiting any public employee acting with in the scope of her employment from performing or assisting in the performance of abortions.
  5. RIGHT TO PRIVACY:
    OBSENE READING MATERIAL

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