Professional Documents
Culture Documents
Key: Concentrate on getting to the burden because, unless it’s gender or illegitimate
children (IS), it’s likely decided once you get there.
Burdens:
Rational Basis: legitimate objective, rationally related
Strict Scrutiny: compelling objective, narrowly tailored (necessary)
Intermediate Scrutiny: important objective, substantially related
Applied to:
Suspect Classifications-SS
Fundamental Rights-SS
Quasi-suspect Classifications-IS
All else-RB
I. Introduction
Big picture themes:
• Rights of individuals against the government
• Division of power between the nation and the states
• Division of power among the three branches
Mechanisms:
• Executive branch
• Direct taxation by federal government
• Increase in central government
• Regulation of commerce
• Federal judicial branch (so side-by-side state and federal courts)
• Limits of federal government
• Individual liberty (even prior to Bill of Rights) via separation of power in branches &
between state and federal governments
History
• 1787 in Philadelphia against the backdrop of a failed Articles of Confederation & pre-
existing state constitutions
Parts to remember:
• Article I-§8 (Enumerated Congressional powers including Commerce Clause,
Spending Power; Necessary & Proper Clause)
• Article IV-Full Faith and Credit (states obligations to other states)
• Article V-re. amendments to Constitution & “no state without its consent shall be
deprived of its equal Suffrage in the Senate” (huge compromise with direct
democracy b/c malaportioned)
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• Article VI-Constitution is the law of the land (Supremacy Clause)
o 1) States may not interfere with the Federal government (McCulloch)
o 2) Constitutional Federal action trumps inconsistent State action (Gibbons)
• Amendments (I-X=Bill of Rights; XIII-XV=Civil War Amendments)
o First-freedom of religion, press, expression
o Fifth-Due Process, takings
o Ninth-Rights reserved to the people
o Tenth-Powers reserved to States
o Thirteenth-Slavery abolished
o Fourteenth-applying other amendments to states; P&Is, DP, EP
o Nineteenth-Women’s suffrage (not that we studied it…)
*Most of amendments have been about procedural matters & most have resulted in
progressive democratization
Federalist Papers
• Stability & energy in government
• Constitutional Democratic Republic-some notion of popular will filtered through
representative government
• Constraints/vagueness: good, because room for compromise
Judicial Review
The power of the court to review a law or official act of government for constitutionality
• Court asserts power over the national government from the President on down…
• Source of power:
o Written Constitution requires enforcement body
Courts b/c they are more independent of political pressure
o Job definition of judges
o Article III
o Supremacy Clause of Article VI
State judges shall be bound by the Constitution; need to make sure
that State law does not conflict with the federal Constitution
But, no mention made of conflict b/w Federal law and the Constitution
(like Marbury)
o Oath
• Counter-majoritarian quality
o But Constitution can be amended
o Constraints:
Judges have to decide cases that are in front of them
Court can only rule on cases that come before it
Rulings come from the Constitution itself which is the result of a
super-majority
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original jurisdiction by virtue of Judiciary Act of 1789 (which gave SC original jurisdiction
over writs of mandamus).
Held (Marshall):
• Article III §2 defines the Supreme Court’s jurisdiction
o Marbury’s case doesn’t fit into area in which SC had original jurisdiction
o Congress does not have power to modify the Constitution (area over which
SC had jurisdiction)
• Constitution Article III & Judiciary Act of 1789 (act of congress) conflictJudicial
Review by which courts are bound to follow the Constitution
o No point in having written Constitution if courts can just ignore it
o Court’s duty to decide which law applies
o Judge’s oath requires that they uphold the Constitution
o Supremacy Clause-Constitution over the laws of the US
Key: Supremacy of the Constitution & Judicial Review
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1) Congress has the power to incorporate a bank
• Article I, §8 doesn’t say you can; Article I, §9 doesn’t say you can’tso you can
• Implicit in the structure of the Constitution
o Enumeration of powers (Article I, §8) implies the existence of those needed to
carry them out (Doctrine of Implied Powers)
• Confirmed by text of the Constitution
o Congress authorized to make “all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers…”
Means of execution
“Necessary” construed broadly
2) The State tax on operation of a national bank is unconstitutional.
• State can’t tax federal government because you can’t have part taxing whole
• Can’t single out the federal bank
Key:
• Broad Implied Powers win the day for the Federal government
• States may not interfere with the Federal government
• Responsibility of Congress to represent people as a whole (don’t’ risk part
determining whole problem)
1. Early years:
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Held (Marshall): NY law was unconstitutional because Federal government has authority
over interstate commerce (Commerce Clause) and the State law was in conflict with
federal (Supremacy Clause).
• Commerce Power
o “Commerce”-defined broadly (certainly includes navigation/transportation)
o “Among the States”-even if purely within one State, if it has an affect on
interstate commerce, it is w/in Congress’ authority
o “Regulate”-subject only to political constraints
• Congress’ Commerce Power is exclusive? Concurrent?
Held: No violation of Commerce Clause because Congress had passed no act coming
into conflict with State lawDormant Commerce Clause is not using the power you have
2. Middle Years:
Court’s approaches:
• Subject-matter distinctions like commerce/manufacture
• What states can’t deal with on their own
• Local v. national
• Direct v. indirect affect on Interstate Commerce
• Affect when taken in the aggregate
Case: Hammer v. Dagenhart (1918): Court strikes down prohibition on the interstate
transportation of goods manufactured in violation of child labor laws.
1936-Butler decided
Case: U.S. v. Darby (1942): Overrules Hammer. Court upholds prohibition on the
shipment of goods for interstate commerce that have been produced by employees
whose wages were less than minimum/hours more than maximum; also prohibits such
employment for shipment of goods in interstate commerce.
Case: Wickard v. Filburn (1942): Extends Darby to production not even intended for
interstate commerce on grounds that it still exerts a substantial economic effect on
commerce (especially when taken in the aggregate).
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Held (Clark): Racial discrimination on the part of restaurants whose food travels
interstate, DOES impose burdens on interstate commerce.
Result: Congress has lots of power to regulate virtually all economic activities, no
matter how local.
3. Contemporary
*Interruptions of expansion of Commerce Clause; limits on what Congress can do
Key: Lopez & Morrison bring back line between economic & non-economic activity (not
subject to Commerce Clause regulation)
What if Heart of Atlanta Motel were decided AFTER Morrison? Wouldn’t it come out
differently? Or is there really a distinction based on economic v. non-economic activity?
Note: if Congress were to regulate more broadly, it might fall within its Commerce
Clause authority. Then, more specific laws could be enacted, pending political
constraints.
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Key: Remains to be seen whether economic/non-economic line will last (Congress has
pretty sweeping authority under the Commerce Clause so maybe Lopez & Morrison
were just blips)
State Sovereignty:
• Prior cases (dealing with Commerce Clause) were about regulations of individuals
o State law says individuals can do one thing vs. Federal law says individuals
can do another thing. Federal law wins if the law is valid (validity is what we
were addressing).
o Remember: Federal government can regulate individuals directly, not just
through the States.
• These cases are about regulations of states, as states
o States not just acting as regulator of individuals, but as a business (employer,
supplier, buyer, etc.)
For example: Congress passes law regulating minimum wages to be paid employees.
The law is made applicable to States and well as private employers. Clearly, Congress
has power to pass the law under the Commerce Clause because of sufficient economic
effect on interstate commerce. But, are the States entitled some exemption, as states?
Here we go…up and down the hill…
Big picture: Why does Court try so hard to impose limits on Congress? Because
Federalism is essential and States have already been stripped of regulatory authority in
Federal government’s direct regulation of individuals.
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• States’ sovereign interest is protected by structure of the Federal system (States
role in Federal government via Senators, Representatives)
o $ going to States from Federal government, States get exemptions
o But see counter-arguments:
Piles of Federal regulations
Powerful lobbies
Connection to State interests is lessened when State legislators
become part of the Federal government
Issues:
• Monetary incentives vs. Coercion
Sabri v. United States (2004): Court upheld law which criminalized bribery of State or
local officials of entities that receive $10,000+ of Federal funds. This was within
Congress’ Spending Clause powers (general welfare) & Necessary and Proper Clause.
Distinction b/w Garcia (Congress can compel-State acting as business) & New York
(Congress can’t compel-State acting as regulator):
• Garcia-adequate political check b/c it involved private sector & States objecting
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• New York-no adequate political check b/c just the States being regulated; possible
accountability problem
So…
Congress cannot coerce State legislatures to enforce Federal law
Congress cannot command State executive officials to enforce Federal law
But-Congress MAY order State judges to enforce Federal law
Why? Supremacy Clause of Constitution, courts don’t face same accountability problem
Analysis-ask:
1) Does Congress have the authority to control this activity (i.e. as per Commerce
power)?
2) Can State be required to do this?
III. The Constitutional Rights of Individuals Against Federal, State and Local
Government Behavior
A. Introduction – The Early Landscape
Always ask:
• Who possesses the right?
• Against what level of government?
• What is the source of the right?
• What is the content of the right (definition & scope)?
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XIII-(slavery) broadest limitation
XIV-(P&Is, Due Process, Equal Protection) limits States
XV- (vote) limits States and the United States
*See also: “natural justice” possibility argued about in Calder v. Bull (1798) that may limit
government’s authority to affect its citizens
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Result: P&I clause of 14th Amendment relatively meaningless; courts now rely on Due
Process (expansion of “liberty”) and Equal Protection (more than just race
discrimination) to apply Bill of Rights against the states.
B. Substantive Due Process and Economic Liberty
*The rise and fall of substantive Due Process as applied to economic regulatory
legislation…
• Due Process is a restraint on executive, legislative & judicial action.
• Due Process is not only a limitation on procedures that each branch must follow, but
also involves a substantive review of the outcome of their product.
Note: Corporations are now “persons” within the meaning of the 14th Amendment.
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**Is this “liberty” (here, freedom of K) an absolute right? No; test (standard) to be applied
to determine if such a statute is valid is:
• There must be a direct and substantial relation between the law and the purpose.
o Just needs to pass one of the purposes.
o But then, look to see the relationship.
o This is strict Due Process scrutiny
Result: Court, at this point, has come very far in applying substantive Due Process to
economic regulation.
1905-1930s further up the hill of substantive Due Process for economic regulations
(striking down economic regulations)…
Result: Court seems to be requiring MORE than direct and substantial relationship
between the law and the purpose. Thus, the court has limited States’ ability to
experiment (one of the issues of primary importance).
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o Presumption of Constitutionality-why?
Legitimacy of elected representatives in a democracy
Encouraging governing/experimentation
Legislators have more competence/resources with respect to fact-
finding
o Much less use of substantive Due Process to invalidate economic
regulation…
Result: Complete abandonment of strict Due Process scrutiny for economic legislation.
Result: Court is not even requiring legislature to show actual purpose; the relationship
between the law and the legitimate, hypothesized purpose an be SO remote, as long as
it is positive.
Result: majority doesn’t even use a test; doesn’t even bother to look for a purpose.
Nevertheless, courts still (to this day) need to review and apply the rational
relation test to see if economic regulation satisfies Due Process.
Why?
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• Sends signal to legislatures that there needs to be legitimate public purpose behind
the law
• Court might enforce line between what is “public purpose” (ok) and “private purpose”
(not okay).
What is the difference between Due Process (liberty) and Equal Protection (equality) and
why do they seem to overlap so much?
Returning to substantive Due Process with respect to personal liberties, later…
Note: the Court has held that the Due Process Clause of the 5th Amendment forbids the
federal government from denying EP.
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• Ordinary social and economic legislation-low standard of review; some relationship
b/w classification and state purpose
Remember:
• In Due Process analysis-look at the relationship between the law and the purpose
• In Equal Protection analysis-look at the relationship between the legislative
classification (who is favored vs. disfavored) and the purpose.
Result: Court upheld this classification, despite the fact that it was “underinclusive.”
Result: any reasonable, conceivable state of facts will suffice for the rational basis for the
law.
Result: Still applying low level rational basis despite particularly vulnerable population at
issue here.
Ideas behind the Court’s finding a “purpose” behind the law for EP analysis:
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• Articulated actual purpose-no; just asks too much of the legislature
• Actual purpose-might be good to do it as a check on the legislature, but it’s probably
not essential
• Identifiable purpose-might be good
• Reasonable presumption of purpose-getting closer
• Imagination-what the Court actually does for this level of review
Bottom line: Court has not invalidated legislative classifications involving solely
economic regulation…rational basis review is really ANY rational basis when it comes to
this kind of legislation. Gonna be a different story when it comes to applying “rational
basis” to other kinds of legislation…
Important principles:
• What Court is “thinking”: Equal Protection prevents legislation that implies inferiority
of some arbitrarily defined group.
• What Court is “saying”: Separation by race has a detrimental effect on minority
children and their education because it generates feelings of inferiority.
• Court can’t “say” what it “thinks” because the Court doesn’t want to make the
legislature, who has to carry out the remedy, look bad OR piss off the south. Thus,
make it about the kids…
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Result: Separate is inherently unequal.
Why are racial classifications subject to strict scrutiny (no deference to legislatures)?
Because it is more likely than not that a law will reflect racial prejudice.
Result: application of strict scrutiny. Official state action that creates a racial
classification that implies inferiority is a denial of EP whether or not it has permissible
purpose. Official action that reflects private prejudice is not okay because it
incorporates the prejudice into law.
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Hirabayashi v. United States (1943) & Korematsu v. United States (1944):
Court upheld convictions of American citizens of Japanese descent who violated the
curfew/exclusion order. Based its decision on “adequate showing that person of
Japanese descent presented special danger in the context of war.”
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Facts: TX statute denies non-citizens right to become a notary public.
Held (Marshall): Invalid; statute violates EP. Does not fall into political function exception
so strict scrutiny applies.
Result: Court is really applying something more than rational basis since it is inquiring
into the purposes, none of which are illegitimate, and invalidating the law.
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• Discrete characteristic-visible
Issues:
• Ask who is bringing the claim (man or woman)?
• Might the statute actually benefit women?
Result: despite using the works of rational basis review, the Court actually applied
heightened scrutiny in requiring the state to conduct hearings to ascertain the
qualifications of women and men on an individualized basisstart of intermediate
scrutiny.
Result: more than rational basis applied (this would have been ok under rational basis)
Weak congruence b/w sex and alleged purpose (Craig, MUW, JEB) and stronger
(Michael M., Rostker)
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• Intermediate: To withstand challenge, statute has to serve important governmental
objectives and be substantially related to those objectives.
o Court will insist on plausible purpose (won’t hypothesize one like in rational
basis review)
o Burden in on government to show empirical evidence to support its
generalization…and then may not even rely on empirical evidence if it may
enforce a stereotype.
o Can’t rely on impermissible stereotypes.
Result: Court may be applying something closer to rational basis; reluctant to strike
down because statutory rape laws are used when it might be hard to prove actual rape
Result: Rational basis + (not intermediate)? Court claimed it was showing deference to
the military despite the fact that generals were in favor of a gender-neutral draft; more
like deference to Congress regarding military affairs.
• Connection between Michael M. and Rostker: Court might have thought women
would in some way be benefited by virtue of the law’s being upheld; Court may have
thought that the laws reflected real gender differences (rather than just stereotype).
Result: this is a bit over the top—probably should have been upheld.
Note: Court used the words “exceedingly persuasive” and “at least substantial relation to
an important governmental objective.” This suggests that the standard for sex
classifications has been left open (intermediate scrutiny +).
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Case: United States v. Virginia (1996)
Facts: VMI is only single-sex public school in VA (prior to force opening of Virginia
Women’s Institute for Leadership); military institute that produces citizen soldiers through
use of the “adversative method”
Held (Ginsburg): Invalid; violation of EPC; State’s justification for classification: 1)
diverse educational opportunities, 2) adversative approach would have to be modified
with women. Court: “deal with it.” And by the way, “separate is still not equal.”
Result: Court may actually be applying an even higher standard of review here (women
bringing the claim)
Result: Court does not seem to be applying “at least” intermediate scrutiny (as it
consistently did for 20 years) since they are hypothesizing purposes. Hard to justify the
purpose of having a parent-child relationship when that can be shown by DNA tests.
This seems to be based on stereotype of women as caregivers.
Bottom line: Articulation of standard remains consistent, but results are drastically
different…
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grandfathers were able to vote). Unconstitutional; ancestry was a
proxy for race.
Result: Law is not unconstitutional solely because it has disproportionate impact. Impact
may be relevant to finding discriminatory intent/purpose (especially when it is hard to
explain on non-racial grounds) but is not conclusive.
Result: if a P can show that discrimination was even a motivating factor, then D will be
required to show that it was otherwise. Here, however, no showing that it was even a
motivating factor.
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Facts: Schools remained segregated after Brown in 1954.
Held: Invalid (intent); violation of EPC. Past discriminatory purpose + present uneven
impact = present discriminatory purpose
Result: even one discriminatory purpose will suffice for invalidating law (even if there
were non-discriminatory purposes also).
Note: need to look at the purpose when the statute was enacted.
Bottom line: must be discriminatory intent (not just disproportionate impact), but there is
a line drawing problem when it comes to finding intent.
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Idea: Person “A” is discriminated against. Program benefits person “B” who shares same
trait with person “A.”
• Court says that it uses the same standard of review for classifications that
disadvantage or advantage women and minorities, but reality is that more
classifications that advantage (affirmative action) are upheld (so, really more like
rational basis?).
• Remember: ask if “benefited” party has been discriminated against in the sphere to
which the statute applies (aka close relationship b/w those injured and those
benefited). i.e. if you were discriminated against in employment and we give
employment benefit, it’s easier. It you were discriminated against in economics and
we give a property tax benefit, it’s harder.
• When the loss (cost of benefit) is distributable over a large population, the Court is
more willing to uphold the distinction.
Note: this was not really an affirmative action program for women (in 1885)
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(6) Race-Conscious Affirmative Action
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Case: City of Richmond v. J.A. Croson Company (1989)
Facts: Minority Business Utilization Plan of Richmond required contractors awarded city
contracts to set aside 30% of $ to MBE subcontractors. “Minority” included black,
Spanish-speaking, Indians, etc. Could grant waivers.
Held (O’Connor): Invalid; violation of EPC on grounds that law was not narrowly tailored
to compelling governmental interest (strict scrutiny applied). + States are limited in their
authority to introduce remedial measures. Would need to show evidence of specific past
discrimination (that for which they are responsible).
Bottom line: don’t want it to look like a caste system (rigid, permanent, etc.), don’t want
to look at people as members of a group but as individuals
Result: ALL racial classifications will be subject to strict scrutiny without regard to who
adopts the plan (Congress, State, university, locality, etc.) at least in theory)
Reasons to treat affirmative action programs adopted by Congress less stringently than
those adopted by States:
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• 14th Amendment is a grant of power to Congress
• Congress represents ALL
• Racial oppression is more likely at the local level
• Congressional competence with respect to fact finding
• Congress is co-equal branch with Court
But they are supposedly treated the same…why? If we are going to hold firm to this
moral principle, we better not differentiate or we will lose traction re the public.
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• Not politically powerless
• Rational basis may help allow for legislation that advantages the mentally retarded
But…is it really rational basis + (“second order rational basis review”)? Not really…
which brings us to the issue of Justice Marshall’s saying we should have a sliding scale
based on how invidious the classification is. Nope…we don’t want to sacrifice
predictability. We’ll just fudge it in the name of justicerigid standards applied less
rigidly.
Remember: even if the standard has to be rational basis, there is always rational basis +
which means the legislation can be invalidated. Like legislation against same-sex
marriage?
• Note how the Court is so much more willing to impose its will on the legislatures in
these areas…
• This is the Court finding “fundamental rights” so that SS will be applied (usually).
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Facts: CT statute made it illegal for anyone (including married people) to use
contraception OR assist (aiding and abetting) someone to use contraception. Stated
purpose is to protect marital fidelity. Background: Planned Parenthood clinics were
being opened.
Held (Douglas): Invalid; not relying on substantive Due Process (because we don’t “do
Lochner)….but, this is a violation of the “right to privacy”.
Source of the right of marital/familial/child bearing/sexual privacy
Emanates from each of the following amendments to create a zone of privacy
(penumbra) when, taken in the aggregate, creates an overall right to privacy
• 1st Amendment-right of association (later construed as privacy of thoughts)
• 3rd Amendment-right against quartering of soldiersprivacy of the home
• 4th Amendment-right against searches & seizuresprivacy of the home
• 5th Amendment-right against self-incriminationprivacy of thoughts
Concurrence: 9th Amendment says that the enumeration should not be construed to
deny rights retained by the people (i.e. personal, unenumerated rights, natural rights?
that judges should define)
Result: Expansion of substantive Due Process rights beyond marriage and childbearing
decisions. “Families” relate to childbearing, which the State has an interest in promoting.
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Facts: WI statute required court permission to marry for those who had a minor child not
in his custody, but for whom he was required to pay child support (need to prove
compliance w/support order & show child not likely to become “ward” of the state).
Held (Marshall): Invalid; violation of DP & EP applying heightened standard of review on
grounds that right to marry is fundamental (history & tradition).
Note: this is subject to higher standard of review because right to marry is “fundamental”
whereas freedom to contract is not; but not all regulations involving marriage will
necessarily be subjected to rigorous scrutiny.
Result: Court relies on “history and tradition” as the source of unenumerated rights, but
does it in the most specific way possible (to curtail judicial overreaching)-whether a
natural father’s relationship with a child whose mother is married to another man has
enjoyed such protection…rather than whether “parenthood” has enjoyed such protection.
Personal Autonomy
• Right to privacy is one of the liberties that is protected by the Due Process clause
and is broad enough to encompass women’s right to choose to terminate a
pregnancy.
o Right to privacy: procreative autonomy (right to use contraceptives), bodily
autonomy, autonomy over medical decisions.
Relying on tradition, if question had been, “have our laws historically protected the right
of a woman to terminate her pregnancy,” the answer would have been “no”
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Since a restriction on a fundamental right triggers strict scrutiny, the regulation must
serve a compelling governmental interest that is least restrictive (narrowly tailored) of
that fundamental right.
Interests:
• Maternal health
• Potential life of a fetusif the compelling point were from the beginning, then all the
laws would be fine Court chooses viability for when the State interest becomes
“compelling”
Result:
Reaffirmed-
• Before viability, State may not interfere (at least unduly) with woman’s right to
terminate
• Post-viability, State may restrict/ban except it’s trumped by the health of the mother
o Reaffirmed in Stenberg (partial-birth abortion case) in which Court insists on
exception for health of the mother
Departure-
• Undue burden replaces trimester framework (if State tries to impose an undue
burden, it will be subject to strict scrutiny)
• Coercive (impermissible) vs. persuasive (permissible) to try to prevent a woman from
having an abortion
• Courts must decide based on each regulation
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