Law in American SocietySubstantive Due Process & Reproductive

Rights

Reproductive RightsAre reproductive rights protected under procedural due process or substantive due process? Explain.

Substantive because violations of this kind lead to the complaint “mind your business.”

Are reproductive rights considered to be fundamental or non-fundamental rights according the courts?

Fundamental Rights (As defined by the Supreme Court)

Which test should we apply in cases that involve fundamental rights?

Strict Scrutiny Test: Is there a compelling government interest that requires the government to interfere?

Reproductive RightsWhat is included in “the right to reproduce”?

The right to NOT reproduce.

This means the right to use contraception and the right to have an abortion.

Is it the government’s role to decide who can buy contraceptives and set requirements for this?

What could their “interest” possibly be?

Let’s look at some cases to see how courts have interpreted this right...

Griswold v. Connecticut (1965)

Facts: Connecticut law bans married people from using any drug or article to prevent contraception. Griswold, the executive director of Planned Parenthood, is convicted under the law for prescribing contraceptives to a married couple.

What is the issue? Is this substantive or procedural?

At issue is whether Connecticut violated Griswold’s substantive due process rights when they passed a law prohibiting prescribing contraceptives to married couples

Is there a fundamental right at stake? If so, what?

Right of privacy in the marital bedroom

Apply the appropriate test, what do you think the courts decided…

Strict Scrutiny Test

Griswold v. Connecticut (1965)

Right to use contraception

“We deal with a right of privacy older than the Bill of

Rights -- older than our political parties, older than our

school system. Marriage is a coming together for better or

for worse, hopefully enduring, and intimate to the degree of

being sacred. It is an association that promotes a way of

life, not causes; a harmony in living, not political faiths; a

bilateral loyalty, not commercial or social projects. Yet it is

an association for as noble a purpose as any involved in our

prior decisions.”

Reproductive Rights

Griswold: protects right of married people to use contraceptives

What about all the single people? What rights do they have? What rights should they have?

Eisenstadt v. Baird (1972)

Facts: Massachusetts law bans the distribution of contraceptives to unmarried men and woman. A doctor gives contraceptives to a single woman and is prosecuted under the law.

What is the issue?

Is there a fundamental right involved?

Apply the appropriate test… what should courts decide.

Eisenstadt v. Baird (1972)

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The Right to an Abortion

Is it the government’s role to decide whether someone can have an abortion?

How is this situation different from the right to use contraception?

What could their “interest” possibly be?

Let’s look at some cases to see how courts have interpreted this right...

Roe v. Wade (1973)

Facts: Texas law criminalizes all abortions except those necessary to save the life of the mother. Jane Roe wants an abortion, although her life is not in danger.

What is the issue? Substantive or procedural? What is the right at stake? Is it a fundamental right?

Roe v. Wade (1973)

Fundamental right: decision whether or not to terminate one’s pregnancy

Which test therefore applies?

Roe v. Wade (1973)

History of abortion show purpose is protecting pre-natal life.

Because “prenatal life” was not within the legal definition of “persons,” Texas was basing their law on a cultural view of prenatal life shared by some, rather than on established legal definitions, and this did not provide a “compelling” reason.

They established a trimester framework which allowed for restriction on abortion in the 2nd/3rd trimesters based on maternal health and fetus viability. In the first trimester, government interests regulating abortions are never sufficiently compelling.

Planned Parenthood v. Casey (1992)

affirms much of the holding of Roe v. Wade (14th DPC)

BUT strict scrutiny no longer used in abortion cases

instead: “undue burden” test - ask: “does the legal restriction have purpose/effect of placing a substantial obstacle in the path of the woman seeking abortion of a nonviable fetus?”

Abortions and “Undue Burdens”

What do you think? Would these pose an undue burden?

a. A requirement for the male’s consent?

b. No public funding?

c. No abortions by physician’s assistants?

d. Mandatory 24-waiting period?

e. Consent from both of a minor’s parents?

f. Consent from one parent or a judge?

g. Requiring the doctors work at an emergency hospital?

Undue Burden?

a. male consent? (Yes - Planned Parenthood v. Danforth)

b. no public funding? (No)

c. no abortions by physician’s assistants? (No - Akron)

d. 24-waiting period? (No - Planned Parenthood v. Casey)

e. consent from both parents? (Yes - need alternate procedures Belotti v. Baird)

f. consent from one parent or a judge? (No - PP v. Ashcroft)

g. doctor admitting privileges (TBD - PP v. Abbott)