Tag Archives: undue burden

Love, marriage, and divorce

These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage.  At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws.  This week the “Healthy Marriage Act” was introduced in the North Carolina Senate.  Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together.  Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together.  If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”[1]

 

If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract?  After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage.  The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract.   Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry.  As Justice White noted in Griswold v. Connecticut:

‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.

If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.

 

If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden.  While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce.  Perhaps the waiting period is too onerous?  The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.

 

Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections.  To receive the dissolution of the marriage, you must take two to three courses.  Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it?  Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant.  But there is no other option to obtaining a divorce short of moving to another state and establishing residency.  Otherwise, a couple is forced to remain in a marriage.

 

Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week.  Divorce jurisprudence could pave the way for marriage jurisprudence.


[1] North Carolina Senate Bill 518 Section 1.a.3

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Filed under Discrimination, Freedom of Speech, Assembly, and Association, The Right to Privacy

Is it Federalism or an Undue Burden?

As several states, most notably Arizona pass more restrictive abortion laws there is a lot of ire from the pro-choice side about reduction of access and impediments placed in front of women seeking to end a pregnancy.  And certainly several of the last major challenges to abortion laws were all about which restrictions violated the Roe test and then the undue burden standard.  For example, according to the Guttmacher Institute, 39 states require a physician perform the procedure; 21 require a hospital stay; 17 mandate counseling; and 26 require waiting periods between counseling and the procedure. Interest groups expend significant amounts of money challenging and protecting these restrictions in court, in the state and federal legislatures, and in public opinion.  Judges then apply the undue burden test as outlined in Planned Parenthood of SE PA v. Casey505 US 833 (1992).

What I find interesting is the similarities between the restrictions enacted in these new laws and Oregon’s Death with Dignity Act.  Under this law[1] you cannot make use of it unless you have reached majority (18) and you are a resident of Oregon; you must have a diagnosis from two different physicians and they must agree that you have six months or less left of life.  Doctors must discuss all other options with the patient and request notification of the family of the request. The patient must make two oral requests for the medication and these requests must be at least 15 days apart.  Afterwards, the patient must make a written request with two witnesses.  These witnesses cannot be family, beneficiaries, or medical personnel that treat the patient.  The doctors must agree that the patient is capable of making appropriate medical decisions.  The patient must wait 48 hours (2 days) after the written request to receive the prescription.  The doctor must mail or personally deliver the prescription to the pharmacy.  Finally, the doctor must contact the state health and human services department.  In other words, the Death with Dignity Act creates similar if not more significant hurdles for those wishing to undergo the procedure than the new abortion laws coming out of some states.

In Gonzales v. Oregon, 546 U.S. 243 (2006), the Supreme Court ruled that the use of the Controlled Substances Act to prosecute doctors prescribing the lethal doses under the Death With Dignity Act is beyond the Attorney General’s powers.  In essence, it was a question of federalism and state’s rights won the day.  The states retain their police power over the health (and delivery of health care) within their borders.  Therefore, the Death with Dignity Act withstood the challenge and remains good law.

Again, the constitutional question in Gonzalez focused on federal versus state powers, but the substance of the act dealt with the right to die.  Often when we consider issues under the rubric of the ‘right to die’, the case is connected to the right to privacy (i.e. Cruzan v. Director, MO DOH 497 US 26 (1990) or WA v. Glucksberg 521 US 702 (1997)).  A question that remains is does the Death with Dignity Act pass the undue burden test?  If physician’s assisted suicide is covered under the umbrella of the right to privacy can the states (OR and WA) place these significant obstacles in front of the terminal patient?[2]


[2] Granted, if the Death with Dignity Act was deemed unconstitutional under this hypothetical it would suggest that there can be physician’s assisted suicide on demand.   But the application of the undue burden test to the strictures of the Death with Dignity Act seems like a good test of student understanding of the privacy material.

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Filed under Federalism, The Right to Privacy