Constitutional Law: Protection of Individual Rights: Substantive Due Process: Fundamental Rights: Right to Privacy

Right to Privacy: (CAMPERS)

• Contraception: right to use and purchase contraceptives for any married or unmarried person.

• Abortion: Prior to viability, states may not prohibit abortion, but may regulate so long as there’s no undue burden.{undue burden test used} Right of woman to have abortion without interference from state before viability. However, normal strict scrutiny is not used. Interests may be in conflict: (1) protecting woman’s health vs. (2) protecting fetus.

• Government may not place an undue burden on woman’s right to abortion.
• Requirement for 24-hour waiting period before an abortion is not an undue burden.
• Requirement that abortions be performed by licensed physicians is not an undue burden.
• Prohibition of partial-birth abortions is not an undue burden.
• Requiring informed consent of woman seeking abortions is not an undue burden.
• Detailed record keeping at abortion facility is not an undue burden.
• Consent of 1 parent before unemancipated woman under 18 obtains an abortion is not an undue burden.

• Under Roe, government action to abort fetus was broken down to trimesters.

• 1^st – government may not prohibit abortion
• 2^nd – government may not prohibit abortion by may regulate only where necessary to protect fetus health.
• 3^rd – (After viability) government may prohibit abortion unless abortion is necessary to protect the life and health of the mother.

• Abortion funding. There is no right to abortion funding for indigents; no duty to provide abortions in public hospitals.
  

• Consent. Spousal consent is not required. Consent of both parents is not required. Parental consent of 1 parent may be required before unemancipated minor acquires abortion, but state must afford judicial bypass based on minor’s best interest or sufficient maturity.

• Marriage: right to marry and any limits on that right are fundamental. There may be no bans on interracial marriage.

• Procreation: Right to be free from excessive government intrusion dealing with procreation.

• Private Education: Parents have right to privately educate their children

• Family Relations: right for nuclear family to remain together. Does not apply to unrelated people living together.

• Government may interfere with parenting decisions only if it meets strict scrutiny.

• It’s a violation of due process for a court to order grandparent visitation after parent protest.

• Right to custody of one’s children.

• State may create the irrebuttable presumption that a married woman’s husband is the father of her child.

• Sexual orientation: right of people to engage in private consensual homosexual activity.

-- Also note the fundamental right to refuse medical treatment: competent adults have the right to refuse medical treatment, even life-saving medical treatment. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended. State may prevent family members from terminating treatment for another.