From Vanity Fair: Republicans Proudly Declare They’re Against Making Contraception a Federal Right

As we discuss in class, aside from the small number of rights specifically stated in the First Amendment everything else is subject for debate. Since Dobbs v Jackson, this could also mean birth control.

- Click here for the article.

On Wednesday, Senate Republicans rejected the Right to Contraception Act, a Democratic bill that would stop the federal government and states from passing laws limiting access to birth control. Speaking to The Washington Post, Senator Joni Ernst called the bill “fear-mongering,” and introduced one that does not protect access to the morning-after pill. Senator John Cornyn claimed Democrats are holding a “phony vote because contraception to my knowledge is not illegal. It’s not unavailable. To suggest that it’s somehow in jeopardy should be embarrassing, but it’s hard to embarrass some people around here.”

Of course, what people like Cornyn don’t note is that that’s the exact argument Republicans used to make about abortion, before the federal right to the medical procedure was summarily scrapped. Referring to Supreme Court Justice Clarence Thomas’s 2022 declaration that the court “should reconsider” some of its past decisions, including the one protecting access to contraception, Senator Mazie Hirono told ABC News: “Whenever a Supreme Court justice, especially in the MAGA far right, says he wants to revisit a case, you can bet that he’s looking to overturn.” In a speech on the Senate floor on Wednesday, Minority Leader Chuck Schumer warned: “A few years ago it was Roe. A few years from now it could be something else. We are kidding ourselves if we think the hard right is done with their attacks on reproductive rights.”

Last month, Donald Trump was asked in an interview, “Do you support any restrictions on a person’s right to contraception?” And rather than saying a simple “no,” he responded: “We’re looking at that, and I’m gonna have a policy on that very shortly, and I think it’s something that you’ll find interesting. And it’s another issue that’s very interesting, but you will find it, I think, very smart; I think it’s a smart decision. But we’ll be releasing it very soon.”

From the NYT: Are Detroit’s Most Terrible Schools Unconstitutional?

The author thinks that the Supreme Court might have the chance to overturn it's 1973 decision in San Antonio Independent School District v. Rodriguez that education is not a fundamental right, and that the equal protection clause was not violated by unequal funding.

- Click here for the article.

At one Detroit school, just 4 percent of third graders scored proficient on Michigan’s English assessment test. At another, 9.5 percent did. Those students are among the plaintiffs in a lawsuit filed last month that asserts that children have a federal constitutional right to the opportunity to learn to read and write.

Illiteracy is the norm at those “slumlike” schools and others in Michigan’s biggest city, according to the plaintiffs. The facilities are decrepit and unsafe. The first thing some teachers do each morning is clean up rodent feces before their students arrive. In some cases, teachers buy the books and school supplies, even the toilet paper.

Lawyers for the students are arguing, in effect, that Michigan is denying their clients the right to a minimally adequate education, an issue that has been raised over the years in courts in other states under their state constitutions.

In Connecticut, a state judge last month ordered sweeping changes to reshape the state’s public schools after concluding that “Connecticut is defaulting on its constitutional duty” to provide all students with an adequate education. The judge concluded that the state’s funding system had “left rich school districts to flourish and poor school districts to flounder.”

Now the litigation in Detroit is raising this issue under the United States Constitution. The Supreme Court has never addressed whether disparities among schools would be constitutionally permissible if, as the court put it in 1973, a state failed “to provide each child with an opportunity to acquire the basic minimal skills necessary” for success in life.

In that bitterly divided 5-4 decision, San Antonio Independent School District v. Rodriguez, the court upheld a Texas law that produced unequal levels of education to students living in different school districts based on the property tax revenues of each district.

The majority maintained that the law was constitutional because it served a rational policy of permitting each school district to decide for itself how much money to spend on education. Whether the level of education was at least minimally adequate in the state’s poorest schools was not at issue in the case.

In what is likely to be the opening chapter in a long legal saga, a federal district judge in Michigan must determine if a state can constitutionally provide a vast majority of its students with an excellent or at least adequate education while a minority of students receive an education that denies them the chance to acquire the minimum skills the court spoke of 43 years ago in Rodriguez.

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 fundamental right to travel?

If so - as with marriage, but not education - strict scrutiny rules apply and a compelling public purpose must be served in order to restrict it. The law must also be narrowly tailored to achieve that purpose and must be the least restrictive means to achieve it.

A recent post in the Federal Law Blog point to a 1958 case that argued that it is.

- Click here for the post: Freedom to Travel and the IRS.
-  Oyez: Kent v. Dulles.

“The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. […] Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, maybe necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”