CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 39: Fundamental Rights Continued
(Medical Treatment, Death, Sexual Activity, Travel)
1. Central Theme: substantive limits on government provided by the
Due Process Clause in V and XIV Amendments with respect to right
of marital privacy/personal autonomy
2. Basic Due Process Model in Claims Alleging Violations of
Fundamental Liberty Interests
i. Is the protected liberty deemed to be fundamental?
ii. Does the challenged law interfere with the
fundamental liberty in a serious enough way to
impinge on or unduly burden that liberty, thereby
triggering strict scrutiny? [test for law to survive: –
does the law substantially further a compelling
governmental interest and has the government chosen
the least burdensome means of achieving its
compelling interest?]
iii. If the answer to questions 1-3 is no, then court will
apply rational basis scrutiny.
3. Other aspects of the fundamental liberty protected by the right of
personal autonomy

i. The right to choose medical treatment
 In Roe and other cases, the Court has implicitly
recognized a fundamental liberty to choose
medical procedures that are necessary to protect
a person’s health, though outside the abortion
context this right does not generally extend to use
of drugs or procedures the government has
banned.
 Does the liberty interest in medical treatment
include the right to refuse lifesaving water and
food ? Does it include the right to die? Cruzan v.
Director, Missouri Department of Health (1990) [C
p. 906] What assumption did the Court make?
How did the Cruzan Court modify the strict
scrutiny test set out in the basic due process model
above?
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 Is there a constitutional right to physician
assisted suicide? See Washington v. Glucksberg
(1997) [C p. 913] and Vacco v. Quill (1997) [C p.
918]
 Oregon has legislated to permit physician
assisted suicide (Death with Dignity Act of 2003).
In Gonzalez v. Oregon 546 U.S. 243 (2006), the
Court held that the Attorney General did not
have constitutional authority under the federal
Controlled Substances Act to overrule state law
concerning the appropriate use of regulated
medicines. 6-3 decisions. Scalia, Thomas, and
Roberts dissented. Note case did not directly
consider whether there is a fundamental liberty
interest to assisted suicide.
ii. The right of consenting adults to engage in intimate
sexual behavior
 Lawrence v. Texas (2003) (overruling Bowers v.
Hardwick (1986)) [C p. 920]
 Compare how the Lawrence Court framed the
asserted fundamental right with how the
Bowers Court framed it.
 Did the Lawrence Court specifically decide
whether the liberty interest was fundamental for
due process purposes? Which level of scrutiny
did the Lawrence Court apply?
 Note Justice Kennedy’s use of comparative
constitutional law. This is controversial.
 Did Lawrence specifically address the state’s
interest in limiting marriage to same sex couples?
iii. Information privacy rights: Whalen v. Roe (1977) [C
p. 933]
iv. Fundamental right to travel
 Saenz v. Roe (1999) [C p. 937]
 Saenz reviews other major case on the
fundamental right to travel under the Equal
Protection Clause
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 To violate equal protection there must be a
substantial impingement on the right; that is not
required under the Privileges and Immunities
Clause, see e.g. Shapiro v. Thompson (1969) [C p.
940] (striking down a durational residency
requirement)
 Example of a case upholding a durational
residency requirement: Sosna v. Iowa (1975) [C
p. 941]
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