Framework for DPC Analysis

  1. Determine if the situation involves a fundamental right
    • either the right is fundamental or it's not
    • if the right is a fundamental right, then strict scrutiny applies.
      • If not, rational basis applies.
    • See Washington v. Glucksberg, where the Court ruled that there is no fundamental right to physician-assisted suicide; thus, Washington law prohibiting the aiding/abetting of suicide must only withstand review under the (HIGHLY deferential) rational basis standard.
  2. Determine if the fundamental right is being infringed or abridges
    • Obvious: a ban is implemented on the exercise of the right
    • The Court considers the "directness and substantiality" of the interference.
      • There is little precedent of what exactly meets this standard.
    • If the right is truly infringed or abridges, strict scrutiny still applies; if not, rational basis.
  3. Determine if there is sufficient justification for the government's infringement of the fundamental right
    • The government now has the burden to persuade the court regarding the necessity of the interest.
    • Justification that are most likely to succeed: national security, public health/safety, integrity of democratic processes, remedying past discrimination.
  4. Determine if the means are necessary and sufficiently related to the (narrowly tailored) purpose
    • The law must be necessary to achieve a compelling governmental interest; truly, there must be no alternative
    • If the government could achieve the objective via less restrictive means, then the law or action fails.