From ScotusBlog: Symposium: Abortion is still a fundamental right?

More on Whole Woman’s Health v. Hellerstedt.

How does the court make those decisions anyway, and how might the level of protection some rights have rise and fall?

- Click here for the article.

Dissenting in Planned Parenthood v. Casey, Chief Justice William Rehnquist claimed that the controlling joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter rejected two key features of Roe v. Wade: abortion was no longer a “fundamental right,” and abortion restrictions were no longer subject to strict scrutiny, the late Chief Justice said. Following his lead, some scholars and lower court judges reason that the Casey joint opinion’s undue burden standard – which was subsequently employed by a majority of the Supreme Court – effectively demotes abortion from the status of fundamental right to something less.

Just how much less is illustrated by the opinion of the U.S. Court of Appeals for the Fifth Circuit now under review by the Supreme Court in Whole Woman’s Health v. Cole. In the view of the Fifth Circuit, when the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart, it equated the undue-burden test with rational-basis scrutiny, the most permissive standard of review known to constitutional law.

That conclusion is wrong. The Casey dissenters thought that abortion regulations should be subject only to rational-basis scrutiny. A majority of the Court rejected that view. Although Casey and other post-Casey cases contain some confusing language, taken as a whole, these cases are best read as preserving the status of abortion as a fundamental right.

Seeing how Casey leaves heightened scrutiny intact for many abortion restrictions in turn sheds light on an otherwise mysterious aspect of that ruling’s articulation of the undue-burden test – the notion that a law can be an undue burden if it has “thepurpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” (emphasis added). The Court has not yet had occasion to apply the purpose prong of Casey, but this case presents the issue squarely.

The rise and fall of the language of fundamental rights

Is there a right to die?

The previous post touched on that question, and since 2305 and 2306 students should be looking at the respective Bills of Rights in the U.S. and Texas Constitutions, it's worth linking to a few items focused on whether such a right exists. It's certainly not listed in the Bill of Rights, but neither is the right to privacy, contract, and work among many other things people believe they have a right to do.

The U.S. Supreme Court has dealt with this issue before though largely because medical science has developed ways to keep people alive seemingly indefinitely in vegetative states. The question is whether people can let it be known that they do not wish to be kept alive artificially - or to not be resuscitated.

Here's a look at some of these cases (text is from Oyez):

- Cruzan v. Director, Missouri Department of Health.

Question: Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf?

Decision: In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.

- Vacco v. Quill.

Question: Did New York's ban on physician-assisted suicide violate the Fourteenth Amendment's Equal Protection Clause by allowing competent terminally ill adults to withdraw their own lifesaving treatment, but denying the same right to patients who could not withdraw their own treatment and could only hope that a physician would do so for them?

Decision: Employing a rationality test to examine the guarantees of the Equal Protection Clause, the Court held that New York's ban [on physician assisted suicide] was rationally related to the state's legitimate interest in protecting medical ethics, preventing euthanasia, shielding the disabled and terminally ill from prejudice which might encourage them to end their lives, and, above all, the preservation of human life. Moreover, while acknowledging the difficulty of its task, the Court distinguished between the refusal of lifesaving treatment and assisted suicide, by noting that the latter involves the criminal elements of causation and intent. No matter how noble a physician's motives may be, he may not deliberately cause, hasten, or aid a patient's death.

- Gonzales v. Oregon.

Question: Did the Controlled Substances Act authorize the attorney general to ban the use of controlled substances for physician-assisted suicide in Oregon?

Decision: No. In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that Congress intended the CSA to prevent doctors only from engaging in illicit drug dealing, not to define general standards of state medical practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to declare a medical practice authorized under state law to be illegitimate.

So it seems that the principle of federalism plays the key role here. It's up to each state to determine whether their citizens have a right to die. The national government has no authority to limit that right. The court has never ruled on whether the national government can force states to recognize such a right largely because no federal court has tried to do so. It might be a interesting exercise to determine whether such an argument could be sustained.

Federal judge rules that bans on same sex marriage do not address a legitimate state interest

Just in time - well a slight bit late - for 2305's review of civil rights comes a decision by a federal judge in Michigan against the states ban on same sex marriage.

- Click here for the decision.

Starting on page 16, the judge offers a review of the various standards that can be used to strike differences between groups (strict scrutiny etc...) and concludes that the law has no rational purpose. This means a higher standard must be used to strike differences between same and heterosexual couples for purposes of marriage.

Its a great take on a subject I may or may not have covered clearly in class - but students should read though it so they can see how the topic is applied currently to deal with this ongoing issue.

Here's an important part of the decision from page 20 - here the judge denies that the reasons offered fro banning same sex marriage met a legitimate state interest - which is the low bar a law has to clear in order to meet the requirements of rational basis review - the same requirements age restrictions on drinking have to clear:

Largely in keeping with the justifications offered in their summary judgment motion, at trial, the state defendants asserted that the MMA serves the following legitimate state interests: (1) providing an optimal environment for child rearing; (2) proceeding with caution before altering the traditional definition of marriage; and (3) upholding tradition and morality. Additionally, the state defendants consistently asserted that defining marriage is within the exclusive purview of the state’s police power. None of these proffered reasons provides a rational basis for adopting the amendment.

Continue with the decision to unpack his reasoning.