Fundamental , Session V, November 5

The court- which protects individual rights as against the majority (which has the right to pass laws) - has been instrumental in creating the America of today.

One of the most dramatic and controversial of these rights has been rights, with some Senators charging judicial nominees with the assertion that to uphold Roe v. Wade (1973) would be legislating in the area of abortion, as the Constitution was silent on the topic and the court’s recognition of abortion rights “created” unconstitutional rights. The legal rationale was that a woman had a fundamental right to control her body, under the 14th Amendment, and government could not deny her that right.

The Roe v. Wade decision (1973) had now been the rule of law for 47 years- two generations of women at least have lived under expectation that an abortion was a choice for them; it would be a shock to the legal, as well as political, system to overturn the decision (the opinion was by an all male court).

That this is a continuing tussle is seen a challenge to Roe v. Wade by litigation involving a Louisiana law, June Medical Services v. Russo (2020). This Louisiana law was almost identical to a Texas law which the court invalidated as placing an “undue burden” on right to obtain an abortion, Whole Woman’s Health v. Hellers (2016) (both cases involved requirements, as doctors who performed must have admitting rights at a nearby hospital, resulting in closure of clinics).

The judiciary asserts it is ruled by law and not by men. As the court invalidated the Louisiana law, it chided the challenge to abortions based on the almost identical Texas law. The court talked about the value of stare decisis, that is, to stand settled precedent so essential to case law which builds in incremental form to establish a rule of law. This issue is not to be relitigated in such a similar case to the law the court found unconstitutional, leaving open an assertion that the court does not apply law and legal precedent but is merely a vote count, here looking to the recent appointment of a Trump appointee.

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Such a bold reversal would forever stamp the court as political (as compared to the court’s invalidation of Korematsu v. US (1944) which internment action by the federal government has been acknowledged- even by Congress which authorized reparations in Civil Act of 1988 - as “overbroad” restriction, overturned in Trump v. Hawaii (2018) concerning national security travel bans for people from certain countries.

Modification of Roe v. Wade Abortion law has been modified, however, by medical advancements, now reflected in legal responses. In 1973, babies were not usually viable before 6 months. That reality led to the tripartite division of the pregnancy in regard to the governmental interests and abortion interests. In the 1st trimester, there was little governmental interest in preventing an abortion (it was safer for woman’s health to have an abortion than remain pregnant); she could make this decision with her doctor (usually male- the court looked to this male authority to support the rationality of its unprecedented decision). In the 2nd trimester, governmental concern was health and safety of mother- reasonable medical regulations were allowed. In the 3rd trimester, the government interest shifted to the unborn child, which embryo could now sustain life if born; in this 3rd trimester, abortions were limited to those necessary to save life of the mother (or of the child, not then being an abortion but a lifesaving procedure).

This legal structure, based on scientific medical facts, was upended with advance in medical technology, resulting in individual sustained life outside the womb, after several months in the womb. State interest in preserving the life of the child increased, along with a strong political push. In Planned Parenthood v. Casey (1992), the court permitted regulation of the procedure, with a compromise that such limitations are permissible only if they do not create an “undue burden” on the mother. Numerous cases concern such limits- notice of pregnancy to a spouse or, if a female minor, to a parent; subjection to medical information (as notice of fetal injury caused by the procedure or listening to the fetus), waiting periods, or limitation on the types of medical clinics and personnel which could be used. (Abortion cases can be found by following p on Planned Parenthood v. Casey or Roe v. Wade.) (there are fewer abortions now, harder to obtain).

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The rights of individuals to create their own lives, to their own liking- free from societal concepts and norms- is seen in other cases as to other human activities and other life experiences- with the emphasis on stability of relationships:

After the right of a married couple to use contraceptives was upheld in Griswold v. Connecticut, importantly also based on substantive due process, the right was extended to unmarried people- Eisenstadt v. Baird (1972) (this was a case based on both the fundamental right to birth control and the lack of equal protection in denying birth control to unmarrieds). Was the state trying to penalize unmarried women for having sex and was it, by so doing, increasing likelihood of pregnancy outside of marriage and perhaps increased state welfare costs or was it trying to penalize and force marriages? Denial of birth control was deemed arbitrary and capricious. The upshot was that the government had no business in the bedroom.

Another dual substantive due process and equal protection case sought to allow the right to interracial marriage and invalidate the statute against miscegenation- Loving v. Virginia (1967) (held there was a fundamental right to marry whom one wished and an equal protection right not to be discriminated against). If you allow some to be married, what is the legitimate basis for denying the right to others to marry? The court discussed these rights with language about the importance, benefits, and characteristics of freedom in one’s personal relationships: the autonomy, dignity, self-definition by constructing a life of one’s choice in essential relationships. This was a aspect.

Another case went to extended family living- City of East Cleveland, Ohio v. Moore (1977) (the city disallowed this extended family of a mother, her son, and grandson (of another of her children) from living together, citing this was not a family unit (their law limited residency to a nuclear family: of a couple, their parents and their children and prohibited unmarried adult children or children from a prior marriage from residing in the same household). The court noted, who are we to limit definition of family, limiting the sanctity of the family? There is a right to family integrity; this ordinance intrudes on family, unfortunate when family is deeply rooted in the nation’s tradition. This too involved substantive rights deemed fundamental and unfair distinction from other types of families.

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This right was extended to same sex couples. The old prohibition of same sex relationships and its criminalization, upheld in Bowers v. Hardwick (1986), was overturned- and same sex relationships and marriage were upheld- US v. Windsor (2013) and Obergefell v. Hodges (2015) (relating to treatment of same sex couples before the law and recognizing their relationships and marriages). Court rationale includes: serious relationships define how one spends one’s life; these choices are up to the individual; it is good for stability of society to encourage such relationships as marriage (and good for any children involved); and this will enhance the institution of marriage. Government clerks cannot refuse to perform ceremonies permitted by law, whether by state law or court decision. This is both substantive due process and equal protection.

The court in Obergefell v. Hodges said: “No union is more profound than marriage, for it embraces the highest ideals of love, fidelity, emotion, sacrifice, than family”. Clearly, the pattern is to expand the notion of grouping of people to encourage stable, long term relationships and limit governmentally- endorsed tradition of same sex, same race marriages. The combination of fundamental rights and equal protection, under 14th Amendment substantive due process and equal protection clauses, has created a groundswell of cultural change.

A case brought up the intersection of 1st Amendment freedom, right not to be enslaved, and right to engage in a profession without directives against the government mandate not to discriminate in the running of a business. The baker argued it violated his 1st Amendment religion and speech rights to have to make a cake (with wording) for a same sex wedding; the state argued his failure to do so violated its antidiscrimination policy. But, the enforcing agency was discriminatory in its consideration of the case, being derogatory about the cakemaker’s beliefs; thus the court did not hold he violated the state mandate but remanded for further consideration- Masterpiece Cakeshop v. Col. Civil Rts. Comm. (2018).

The rights of individuals are squared off in a duty to be nondiscriminatory and the ability of people to enjoy commerce; the religious and liberty interests of one are contrary to the rights of others to equal treatment and state enforcement. This conflict is part of a societal change in attitude toward same sex activity.

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Note: cultural/societal change also came with challenge to concepts of childbirth. A teacher was wrongly fired when reaching a certain stage in her pregnancy (when pregnancy became visible)- Cleveland Bd. of Education v. LaFleur (1974) (mandating a specific time of pregnancy leave, unrelated to medical condition, violates substantive due process-pregnancy leave should be a matter of personal freedom). Challenge was made to pregnancy leave (guaranteeing same or similar job to a pregnant woman after pregnancy leave- a new concept in the US, Calif. Fed. Savings and Loan v. Guerra (198-). (Government cannot support laws which deny people fundamental : Cal Fed was argued primarily on equal protection, pregnant women cannot be treated differently from other temporarily disabled workers; yet, pregnancy is a human condition to be provided for.)

The basis of the legal concept of substantive rights arose in a footnote, alluding to rights of people, including rights of minorities- US v.Carolene Products (1938) (fn 4). These rights go to what a person is entitled to expect in government behavior. There are human rights which are entitled to a serious review, exemption from government control. What are other fundamental rights of humans? Health care? (What about quarantine issues and the right of care facility patients to see family as one is dying; what about self-determination in the ?) Education? (Education was granted to all children without consideration of legal presence in the country- Plyer v. Doe (1982; in Wisconsin v. Yoder, the issue was not stopping education- yet it underscored the right of parents to choose how to raise their children.) Economic sustainability? (Our free enterprise-based economy does not guarantee an economic standard of living; economic regulation is subject to a rational review test (as social security is regarded as an entitlement and a hearing is required before terminating welfare benefits- Goldberg v. Kelly (1970) ; some in the 2020 campaign have suggested a minimum annual payment to people).

Regular due process analysis goes to norms of governmental procedure: was there a fair hearing before an impartial decision maker with written holding which is subject to review? This has a lesser standard of review, whether governmental action is arbitrary or capricious, compared to higher standards of review for government interference- needing a compelling or substantial reason to limit individual rights.

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