When testing the constitutionality of government action, Courts determine first if there is a basis for the government action. Next, the court determines if the government action impacts an individual right. If so, the quality of the government basis is weighed against the quality of the individual right. The highest form of an individual right is a fundamental right. A list of established fundamental rights follows:
The Right to Procreate is a Fundamental Right
In Skinner v. Oklahoma, 316 U.S. 535 (1942), the U.S. Supreme Court held that strict scrutiny of the classification that a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.
The Right to Travel is a Fundamental Right
In Shapiro v. Thompson, 394 U.S. 618 (1969), the U.S. Supreme Court reaffirmed the right to travel under the 14th Amendment’s Privileges and Immunities clause in Saenz v. Roe (1999) and held that government action that impacted free movement between the states required strict scrutiny.
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