The Court has consistently found that classifications based on race, national origin, and alienage require strict scrutiny review. Most constitutional law scholars recognize the added complexity in the parallel area of equal protection. Infringements on fundamental rights can only survive if they satisfy strict scrutiny—that is, if they are narrowly tailored to serve compelling government interests. 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. 0000018236 00000 n These propositions could not possibly be true if Casey simply demoted abortion to the sort of mere "liberty interest" that may be infringed so long as the restriction is rationally related to a legitimate government interest.
The only real question in this case is the one that Charles Black saw at issue in Brown v. Board of Education: whether "the Court, as a Court, can permissibly learn what is obvious to everybody else and to the Justices as individuals.". As applied in Korematsu v. United States, which upheld the race-based exclusion order and internment during World War II of Japanese Americans who had resided on the West Coast of the United States, strict scrutiny was limited to instances of de jure discrimination, where a racial classification is written into the language of a statute. Several Justices of the Supreme Court undoubtedly would like to overrule Roe and Casey. Definition from Nolo’s Plain-English Law Dictionary. Start studying BUL3310 Unit 3 Quiz Questions. Throughout constitutional law, purpose tests can be criticized for asking courts to discern something unknowable: legislative purpose. [2] See also the cases cited below, however; several appear to permit the exemption from laws based upon religious liberty. trailer
<> Make No Mistake: Abortion Is a Fundamental Right | Opinion. Notably, the Casey joint opinion did not find fault with the Roe framework's treatment of ostensible health measures. Beyond the proliferation of levels of scrutiny in both equal protection and substantive due process cases, the more recent precedents sometimes display changes in phrasing. Instead, the state argues that the hospital admitting-privileges requirement and the ambulatory surgical-center requirement aim to protect the health of women seeking abortions. The Casey dissenters thought that abortion regulations should be subject only to rational-basis scrutiny. Casey did not disturb what the joint opinion called the central holding of Roe: Government may not ban abortion prior to fetal viability, and—even after viability—government must allow abortions needed to preserve the health or life of the pregnant woman. 0000004039 00000 n The class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics," be a minority or "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society. In American constitutional law, strict scrutiny is the highest and most stringent standard of judicial review, and results in a judge striking down a law unless the government can demonstrate in court that a law or regulation: . 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. If abortion remains a fundamental right, why does the relatively permissive undue-burden test apply to abortion regulations? Whatever Casey had done, strict scrutiny was not it. <>stream Student Resources: A majority of the Court rejected that view. <<43A0BD16E5ADB2110A0020A08170FE7F>]/Prev 525678>> But deference does not govern review of medical exemptions. After all, a law satisfies traditional rational-basis scrutiny if it is possible to imagine a set of facts in which it would advance legitimate goals—and it is possible to imagine that virtually any law promoted on health grounds promotes health. By acknowledging the possibility of an unnecessary health regulation, the Casey joint opinion unmistakably signaled that courts should look behind asserted health justifications to investigate how abortion restrictions actually function. in his dissent (part III) in Hellerstedt).[1]. This article was first published on the Supreme Court of the United States site.
What standard of judicial scrutiny applies to such laws? U.S. courts apply the strict scrutiny standard in two contexts: when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification", such as race or national origin. That conclusion is wrong. As Linda Greenhouse and Reva Siegel explain in a forthcoming article in the Yale Law Journal, the undue-burden test allows a certain kind of abortion regulation that post- Roe cases disallowed—what the Casey joint opinion called "persuasive measures" such as waiting periods—so long as they do not unduly burden the abortion right.
0000004515 00000 n The very idea of a law that constitutes an "unnecessary" health regulation with the "purpose" of imposing obstacles to abortion rules out rational-basis scrutiny of the sort applied by the Fifth Circuit. However, any fair-minded attempt to apply those decisions must subject the challenged provisions of Texas law to heightened judicial scrutiny as pretextually defended infringements on the fundamental right to abortion.
The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest. The lesser standards are rational basis review and exacting or intermediate scrutiny. That reticence led to some disagreement in the lower courts about such matters as whether laws restricting adults' access to sex toys trigger heightened scrutiny. 0000000016 00000 n is necessary to a "compelling state interest"; is "narrowly tailored" to achieving this compelling purpose; and.
(The latest version of Fisher v. University of Texas at Austin may reveal whether that last standard remains distinctive.). The mechanism is heightened scrutiny, which, as O'Connor explained in the equal protection context, serves to "smoke out" an illicit purpose by testing whether the challenged law is in fact tailored to a permissible one. Tellingly, Doe invalidated a hospitalization requirement that bears more than a passing resemblance to the laws challenged in this case. These standards are used to test statutes and government action at all levels of government within the United States. Luckily, we have at the ready a serviceable mechanism for discerning objective legislative purpose, one that does not require judges to pore over contested legislative history. He blogs at dorfonlaw.org. 0000005640 00000 n hެW{PSW>7�7 $$4��D@����4�1�.
0000008317 00000 n startxref However, the Casey joint opinion favorably cited Doe v. Bolton as an example of a case in which the Court properly applied the portion of Roe that Casey left undisturbed. 0000004276 00000 n Tribe pointed to this language from the Lawrence opinion: "Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person" (emphasis added). In other words, abortion is a fundamental right. It is also important to note that, unlike the rational basis test, the burden of proof falls on the state in cases that require strict scrutiny or intermediate scrutiny. The first and most notable case in which the Supreme Court applied the strict scrutiny standard and found the government's actions constitutional was Korematsu v. United States (1944), in which the Court upheld the forced relocation of Japanese Americans in internment camps during World War II. Constitutional law hornbooks and bar exam review materials present students with a straightforward formula.
Most infringements on substantive liberty are subject only to the permissive rational-basis test, but a small set of rights—whether expressly enumerated by the Bill of Rights or recognized pursuant to the doctrine of substantive due process—are fundamental.
In the field of reproductive rights, having the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a fetus that is not yet viable. 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. Wade required strict judicial scrutiny of all abortion regulations. Harvard law professor Richard Fallon, Jr. has written that, rather than being neatly applied, strict scrutiny’s “interpretation is more varied than is often recognized[3]”, a view that has been acknowledged by at least one U.S. Supreme Court Justice, Clarence Thomas (e.g.
The undue burden standard is a constitutional test fashioned by the Supreme Court of the United States.The test, first developed in the late 19th century, is widely used in American constitutional law. Notably, that statement appeared in a case decided four years after Casey in a majority opinion written by one of the authors of the Casey joint opinion.
Nonetheless, Laurence Tribe is almost certainly correct in reading Lawrence as protecting a fundamental right under a slightly different name. The Court must use strict scrutiny if one of these tests, among others, is met: Village of Arlington Heights v. Metropolitan Housing Development Corp. Gonzales v. O Centro Espírita Beneficente União do Vegetal, Roe v. Wade, 410 U.S. 113, 155 (1973) (Blackmun, J.).
much more rigorous undue-burden test embraced by the U.S. Supreme Court in 2016 in the abortionregulation case of - Whole Woman’s Health v. Hellerstedt. The use of "unnecessary" and "purpose" in a single central sentence in Casey thus invites close judicial scrutiny of how ostensible health measures actually function. The Court has not yet had occasion to apply the purpose prong of Casey, but this case presents the issue squarely. The Supreme Court has established standards for determining whether a statute or policy's classification requires the use of strict scrutiny.