Civil Liberties and Individual Rights CHAPTER 20:1

Chapter 20:1: Due Process of Law

o We will examine substantive

and procedural due process

laws.

o We will examine Due Process

in the context of abortion.

Pro_21:3 To do justice and judgment is

more acceptable to the LORD than

sacrifice.

Introduction:

o Due Process clause found in both the Fifth and Fourteenth Amendments.

o Due Process: Government must act fairly, using fair procedures.

o It requires that both the ways in which government acts and the laws under which it acts must be fair.

o Thus, the court added the idea of substantive due process to the original notion of procedure due process.

EXAMPLES: PROCEDURAL DUE PROCESS:

o Cops acting in a tip storm a suspect, see capsules on top of a lamp stand, the suspect swallows drug capsules and cops take him to hospital to have his stomach pumped and found capsule was morphine.

o “This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach contents—this course of proceedings offend…”

EXAMPLES: SUBSTANTIVE DUE PROCESS:

o Case forcing all kids to attend public

schools in a town in Oregon.

o The Supreme Court ruled that this

violated the 14th Amendment.

o Court found that the law itself at

fault, not that the law was enforced

unfairly.

DUE PROCESS AND THE POLICE POWER:

o In the federal system, the reserved powers of the States include the broad and important police power, the power of each state to act to protect and promote the public health, safety, morals, and general welfare.

o What a state and its local government cannot do in the exercise of their police power is decided by the courts.

o They must strike a balance between the needs of society and the rights of individuals to due process.

DUE PROCESS AND THE POLICE POWER:

o Drunk Driving tests: Courts held that the right of society to protect itself against drunk drivers and rejected the individual rights’ argument.

o The Court found no objection to a situation in which a police officer had directed a doctor to draw blood from a drunk-driving suspect.

o The court stressed these points: the blood sample was drawn in accord with accepted medical practice.

DUE PROCESS AND THE POLICE POWER:

o The officer had reasonable grounds

to believe that the suspect was

drunk.

o Further, had the officer taken time

to secure a search warrant, a court

order authorizing a search—the

evidence could have disappeared

from the suspect’s system.

DUE PROCESS AND THE POLICE POWER:

o To promote health: states can limit the

sale of alcoholic beverages and

tobacco, make laws to combat

pollution, and require vaccination of

school children.

o To promote safety: states can forbid

concealed weapons, require the use of

seatbelts, and punish drunk drivers.

DUE PROCESS AND THE POLICE POWER:

o To promote morals: states can outlaw gambling, the sale of obscene materials, and the practice of prostitution.

o To promote the general welfare: states can enact compulsory education laws, provide help to the medically needy, and limit profits of public utilities.

DUE PROCESS AND THE POLICE POWER:

o Police officers may not use unnecessary force

as they enforce the criminal law.

o No state may prohibit the operation of private

schools.

o And a city may not ban a street demonstration

simply because the mayor opposes the

demonstrator’s cause.

RIGHT OF PRIVACY:

o The right to privacy is “the right to

be free, except in very limited

circumstances, from unwanted

governmental intrusions into

one’s privacy.

Abortion:

o Roe v. Wade: It held that the 14th amendment’s right to privacy “encompasses a woman’s decision whether or not to terminate her pregnancy.”

o More specifically, the Court ruled that:

o (1) During the first trimester of pregnancy (about three months) a State must recognize a woman’s right to choose an abortion and cannot interfere with medical judgments in that matter.

Abortion:

o (2) During the second trimester a state, acting in the interest of women who undergo abortions, can make reasonable regulations about how, when, and where abortions can be performed, but cannot prohibit the proceedings, and

o (3) During the final trimester a state, acting to protect the unborn child, can choose to prohibit all abortions except those necessary to preserve the life or health of the mother.

Abortion:

o In 1989, Webster v. Reproductive Health

Services, those provisions prohibit abortions, except those to preserve the mother’s life or health

o (1) in any public hospital or clinic in that State and

o (2) when the mother is 20 or more weeks pregnant and tests show that fetus is viable, capable of life, outside the mother’s body.

Abortion:

o In 1990, the Courts held: that a minor

o (1) to inform at least one parent before she can obtain an abortion,

o (2) or to tell both parents of her plans, except in case where a judge gives permission for an abortion without parental knowledge.

o Court’s new rule:

o A state may place reasonable limits on a woman’s right to choose an abortion, but those restrictions cannot impose an “undue burden” on her choice of that procedure.

Abortion:

o Court upheld a Pennsylvania law

where it states:

o 1) A woman who seeks an abortion

must be given professional

counseling intended to persuade her

to change her mind.

o 2) A woman must delay an abortion

for at least 24 hours after that

counseling.

Abortion:

o 3) An unmarried female under 18 must

have the consent of a parent, or the permission of a judge, before an abortion; and

o 4) Doctors and clinics must keep detailed records of all abortions they perform.

o States now have greater power to restrict and regulate abortion although Roe has not been overturned.

All things were made by him; and without

him was not any thing made that was

made. In him was life; and the life was

the light of men. John 1:3-4

(Psa 127:3) Lo, children are an heritage

of the LORD: and the fruit of the womb is

his reward.

• Discussion Questions:

• Do you think abortion should be banned

completely or are there exceptions where it

is necessary?

• What do you think is the Bible position on

abortion?