Fundamental Rights and the Equal Protection Clause

In addition to laws that use racial or national origin classifications, laws that deny fundamental rights to some groups and not to others are also subject to strict scrutiny review. We must take care not to confuse these with laws that deny fundamental rights to all groups and are therefore subject to substantive Due Process analysis (see Chapter 3). Generally, however, the list of fundamental rights for Equal Protection Clause purposes is the same as for Due Process Clause purposes. Furthermore, in Equal Protection cases involving fundamental rights, it is important not to get distracted by focusing on the group whose rights are affected. Even if the group classification is neither suspect nor quasi-suspect, if their fundamental rights are being burdened while the same rights are not being similarly burdened for other groups, we have an Equal Protection issue.

The right to have an abortion is not a fundamental right following the Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which held that states may restrict the availability of abortions so long as they do not place an “undue burden” on the woman’s right to choose. There are two, conflicting state interests here: protecting the mother and protecting the fetus. Both interests are compelling, and this has led to the “no undue burdens” standard for restricting abortions before the fetus is viable (i.e., has a realistic chance of surviving outside the womb). Once the fetus is viable, however, states may prohibit abortion except when required for the woman’s health or safety.

EXAMPLE: State X passes a law which limits the right to pre-viability abortions by requiring they be performed by a doctor. This is not an undue burden.

EXAMPLE: State Y enacts a regulation requiring spousal notification prior to an abortion. This is an undue burden.

EXAMPLE: State Z has a law that requires doctors to give women enough information to make informed consent and then makes women wait for 24 hours prior to having an abortion. This is not an undue burden.

Also mentioned in Chapter 3 as a fundamental right is the right to travel freely among the states. It is important to realize that international travel is not a fundamental right. The right to travel among the states, however, is more than simply the right to physically move freely. In fact, frequently at issue are state laws that classify state citizens based on the length of their residence. For example, a state cannot deny welfare to citizens who have lived in the state for less than a year if they are otherwise qualified and if the state grants such assistance to citizens who have resided in the state for more than a year. See Shapiro v. Thompson, 394 U.S. 618 (1969).

Generally, the Fourteenth Amendment's Equal Protection Clause prevents states from limiting the rights of newly arrived citizens. While there is some overlap with the subject matter of the Privileges and Immunities Clause, the Equal Protection Clause, in the context of travel, is meant to protect new citizens of a state against discrimination by their new home state, while the Privileges and Immunities Clause is meant to ensure that citizens of a one state do not have their rights limited by another state. Note that here, as in other fundamental rights Equal Protection cases, it is not the classification which concerns us. Classifying citizens based on how long they have been in a state is neither a suspect classification nor a quasi-suspect classification. Strict scrutiny is applied here only because the classification is being used to burden their right to travel among the states. If the classification were used to determine who could wear red shirts and who could wear blue shirts, mere rational basis review would apply.

EXAMPLE (1): Fred and Ethel move to New York when the company that they both work for relocates there. They quickly realize that they cannot afford decent housing. When they apply for state housing aid they are told that according to state law they must be citizens for at least 6 months before applying for aid. The law will be subjected to strict scrutiny and it will probably be struck down as unconstitutional.

EXAMPLE (2): Northernstate is known for having particularly good welfare benefits. In recent years, unemployed citizens of other states have moved to Northernstate in order to avail themselves of these benefits. In an effort to stem the inflow of citizens who come to receive benefits but have never paid state taxes, the legislature passes a law which limits new citizens’ welfare benefits to the level they would have received in their original home state for the first year of their residency in Northernstate. Because the right to travel includes the right to be treated equally to other residents in one’s new state, the law is an unconstitutional violation of the Equal Protection Clause. See Saenz v. Roe, 526 U.S. 489 (1999). (Personal Responsibility and Work Opportunity Reconciliation Act of 1996's durational residency requirements were held to unconstitutionally burden citizens classified based on length of residency.)

Also frequently litigated under the Equal Protection clause are laws involving the fundamental right to vote. In late June, 2003, the Supreme Court handed down its decision in Georgia v. Ashcroft, 593 U.S. 461 (2003). At the heart of that case was the question of whether certain redistricting

“’would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise’ [and] whether Georgia's State Senate redistricting plan is retrogressive as compared to its previous, benchmark districting plan.”

Ashcroft at 466. Or, to translate the above into English, we would ask whether the redistricting which began following the 1990 census had the effect of “diluting” the votes of certain minority groups.

In order to avoid vote dilution, all election districts must be about equal in population. For obvious reasons, this requirement cannot be set aside by voter approval, lest minority groups be effectively silenced at the polls. When drawing district lines, in addition to population number, populations of specific races may be considered. But, if race is used as a factor, the process must meet strict scrutiny. For state and local elections, no matter how the lines are drawn the number of people in each district must not vary by more than just a few percentage points.

EXAMPLE: It has come to the attention of the Westernstate legislature that its districts are no longer of equal size as a result of uneven population growth and population redistribution over the years. Each district elects a single senator, but the districts now range in size from just over 15,000 for the smallest district to just under 635,000 for the largest. In order to address the problem the legislature proposes a redistricting which would almost double the number of state senators but which would create districts ranging in size from just under 11,000 to just under 635,000. The current and proposed schemes for the state house of representatives are equally dramatic in the population-to-representative disparity for different groups. Neither the current nor the proposed scheme hold true to the concept of “one man, one vote” and neither will survive Equal Protection review. See Reynolds v. Sims, 377 U.S. 533, 559 (1964).

While education might seem fundamental to you and me, the right to some measure of equality regarding public school facilities and education is not considered a fundamental right for Equal Protection Clause purposes. In many states school expenditures are largely determined by the amount of property tax collected in the school district. Where wealth is involved, the Equal Protection Clause does not require equality. Thus, strict scrutiny is not the appropriate standard to apply in such cases. See San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).

EXAMPLE: Westernstate public schools are funded entirely by property taxes collected in the district in which the school resides. These property taxes are also the sole source of financing available to pay for public water supply and sewage facilities. Last year, in a district with a particularly low tax base, it became evident that the district could not afford to both maintain its schools and to properly treat the sewage produced by its residents. Making a decision based on public health and safety, the district was forced to close its schools and keep the sewage plant open. While Rodriguez certainly stands for the proposition that equality in public schools is not a fundamental right, completely depriving residents of a district of publicly funded schools may well be an impairment of a fundamental right to education regarding some basic minimal skills. Thus, a court may force the state to provide the district with funding for the school in that district. See Rodriguez at 37.