Chapter 9 Flashcards
Where does a right to privacy emanate from in the Constitution?
First Amendment’s right of association.
Third Amendment’s prohibition against quartering soldiers.
Fourth Amendment’s search and seizure clause.
Fifth Amendment guarantees against self-incrimination.
Ninth Amendment – Constitution doesn’t list all of the rights.
Most modern day justices who find the right in the Constitution find it in the Fourteenth Amendment’s due process clause that prohibits government intrusion in ways that infringe on the personal liberty of citizens.
Substantive Due Process
The view that the Fourteenth Amendment did not simply repeat the rights already enumerated in the Bill of Rights and apply those to the states; but that the Amendment created substantive, additional rights primarily in the use of the phrase “nor shall any State deprive any person of…liberty…without due process of law…”
Proponents of this view argue that the use of the word “liberty” implies the existence of a right that is not enumerated in the Constitution elsewhere.
Rational Basis
If something is not considered a fundamental right the state only needs to show that the law is rationally related to a legitimate governmental interest. Court gives deference to the state.
Strict scrutiny
If something is a fundamental right, and the state has “directly and substantially” interfered with it, then the state must have a compelling interest in passing the law and use the least restrictive means.
Griswold v. Connecticut (1965)
Relevant Case Facts:
The Executive director of Planned Parenthood was arrested for dispensing contraceptives to a married couple. Her attorney argued against the state law based on a substantive due process approach to the 14th Amendment, arguing that the law infringed on individual liberty. He also argued that the right to privacy argument can be found in the First, Third, Fourth, Ninth, and Fourteenth Amendments.
Legal Question:
Does the Due Process Clause of the 14th Amendment guarantee a right to privacy?
Holding:
Yes. By a vote of 7-2 the Court ruled in favor of Griswold.
Reasoning:
1. Previous cases suggest that certain guarantees are found in the Bill of Rights have penumbras, formed by emanations from those guarantees. The Right of Association contained in the First Amendment is one. The Third Amendment’s protection against quartering of soldiers is another facet of privacy. The Fourth Amendment explicitly protects citizens against illegal search and seizures. The Fifth Amendment protects against self-incrimination. The Ninth Amendment provides that the “enumeration of certain rights, shall not be construed to deny or disparage others retained by the people.”
2. In Boyd v. United States we found that the 4th and 5th Amendments protect against all governmental invasions “of the sanctity of a man’s home and the privacies of life.”
3. Here, the law is invalid because the case concerns a relationship that lies within a zone of privacy created by a number of fundamental constitutional guarantees. It concerns a law which, in forbidding the use of contraceptives, rather than their manufacture or sale, seeks to achieve its goals by having maximum destructive impact on the relationship.
Dissent (Black and Stewart):
There is no such right to privacy found in the Constitution. However, there are guarantees in certain specific constitutional provisions designed in part to protect privacy at certain times and places with respect to certain activities. Indeed, it can be construed to mean many things. The Fourth Amendment prohibits unreasonable searches and seizures.
I get nowhere in this case by talking of a constitutional right to privacy. While I like my right to privacy, I am compelled to admit that the government has a right to invade privacy unless it is prohibited by some specific constitutional provision.
Unlike the majority I cannot rely on the Due Process clause or the 9th Amendment or any mysterious and uncertain natural law concept as a reason for striking down the state law.
Roe v. Wade (1973)
Relevant Case Facts:
Norma McCorvey was raped and became pregnant. Her doctor refused to give her an abortion, citing an 1857 Texas law that made it a crime to procure an abortion unless it was necessary to save the life of a mother.
Legal Question:
Is abortion a fundamental right under the privacy standard set out in Griswold v. Connecticut?
Holding:
Yes. By a vote of 7-2 the Court ruled in favor of Roe.
Reasoning:
1. History shows that the restrictive abortion laws found in a majority of states today are of recent vintage. We note that most state abortion laws were passed when the procedure was hazardous for the woman. However, medical advances have made this state interest disappear.
2. The court has recognized zones of privacy that exist under the constitution. It is clear that only personal rights can be deemed fundamental or implicit in the concept of ordered liberty. These rights extend to activities relating to marriage, procreation, etc. This right to privacy is broad enough to encompass a woman’s decision whether or not to terminate a pregnancy. The detriments of not giving a woman this right reach to financial, psychological, and physical harms.
3. Our decisions, however, recognize that some state regulation in areas protected by the right to privacy is appropriate, and that the right to privacy is not absolute. We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation…
4. We are persuaded by history that the word person, as used in the 14th Amendment, does not include the unborn.
5. The state’s interest grows in substantiality as the woman approaches term and, at a point during pregnancy, it becomes compelling. We find that it becomes compelling at approximately the end of the first trimester of pregnancy. This means that prior to this point the doctor, in consultation with the patient, is free to determine, without regulation, that a pregnancy should be terminated.
6. After viability (the compelling point) the state may proscribe abortion except when it is necessary to preserve the life or health of the mother.
7. Measured against these standards, the Texas law in restricting abortions to cases where it will save the life of the mother is too sweeping.
Dissent (Rehnquist and White) :
I have difficulty concluding that the right of privacy is involved in this case. In fact, the right found here is not even a distant relative to the freedom from searches and seizures found in the 4th Amendment.
The Court here simply fashions and announces a new right for pregnant women and with scarcely any reason or authority for its action invests that right with sufficient substance to override most existing state abortion laws. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
Summary of Dobbs v. Jackson Women’s Health Org.
The case concerned the constitutionality of a 2018 Mississippi state law that banned most abortions after the first 15 weeks of pregnancy. Jackson Women’s Health Organization, Mississippi’s only abortion clinic, had sued Thomas E. Dobbs, state health officer with the Mississippi State Department of Health, in March 2018.
Historical Context: “For the first 185 years after the adoption of the Constitution, each State was permitted to address [the issue of abortion] in accordance with the views of its citizens.”
Constitutional Language: “Even though the Constitution makes no mention of abortion, the [Supreme] Court [in Roe] held that it confers a broad right to obtain one.”
Roe was wrong for two reasons:
Because a right to an abortion does not exist on the face of the Constitution; and,
Because the Court found an implied right – of personal privacy and therefore abortion – that doesn’t exist; and implied rights are generally rights which existed previously in the history of American or English Common Law and are “deeply rooted in this Nation’s history and tradition”…and “implicit in the concept of ordered liberty.”
Explicit vs. Implicit
Explicit: There is no mention of either privacy, personal privacy, or abortion in the actual text of the Constitution.
Conclusion: There is no explicit right to privacy or abortion in the Constitution.
Implicit: The inescapable conclusion from an examination of the history of this Country, both before and after the Constitution was ratified, is that a right to an abortion is not deeply rooted in the Nation’s history and traditions.
Conclusion: There is no implicit right to privacy or abortion in the Constitution.
Five Reasons Why the Court Ignored Stare Decisis and Overturned Roe
An erroneous interpretation of the Constitution is an important error and must be corrected.
The quality of the reasoning in Griswold and Roe was very poor and should be reviewed and corrected.
The rule in Roe and its progeny is unworkable – it resolved nothing, and the people are still divided.
Because of the poor reasoning in Roe, the court has been led to distort the Constitution in other important areas of the law.
There is little reliance interest by the public on Roe that will not be corrected by and reflected in the decisions of State legislatures in passing new laws to regulate abortion. This is just plain wrong
What Does Dobbs mean for Abortion Now?
There is no federal, Constitutional right to an abortion.
Congress has little, if any, power to pass laws that would make a “right” to an abortion the law of the land – no right in the Constitution and no enumerated power to do so.
Consistent with the Tenth Amendment and accepted Constitutional jurisprudence, the regulation of abortion now goes to the States, their legislatures, and the people.
The abortion debate and the legal battleground shifts from the Federal Courts, the Supreme Court and the Constitution to state law, state courts, and state constitutions.
Bowers v. Hardwick (1986)
Relevant Case Facts:
The police came to Hardwick’s home to serve him with an arrest warrant for failure to keep a court date. When a housemate let the police in the house, the officer saw Hardwick engaged in sodomy with another man. Hardwick was arrested for violation of a Georgia law which prohibited oral or anal sex. While the District Attorney did not pursue the case, Hardwick challenged the law, asserting that it violated his fundamental right to privacy, protected by Griswold.
Legal Question:
Does the constitution confer a fundamental right upon homosexuals to engage in sodomy?
Holding:
No. By a vote of 5-4 the Court ruled in favor of Bowers.
Reasoning:
1. Fundamental rights are those that are “deeply rooted in this Nation’s history and tradition,” or those that are “implicit in the concept of ordered liberty.” Neither of these formulations would extend protection to the right to engage in sodomy.
2. Nor are we willing to take a more expansive view, discovering new fundamental rights imbedded in the Due Process Clause. There should be great resistance to expand the substantive reach of this clause, particularly if it requires redefining the category of rights deemed to be fundamental.
Lawrence v. Texas (2003)
Relevant Case Facts:
After receiving a phone call about a possible weapons disturbance, Houston police officers entered the apartment of Lawrence, where they observed him and another man engaged in a sexual act. The two men were arrested and convicted of violating a Texas law making it a crime for two persons of the same sex to engage in sodomy. This law only applied to participants of the same sex.
Legal Question:
Does a law that criminalizes homosexual activity violate the 14th Amendment equal protection clause and a person’s fundamental liberty in the due process clause of the 14th Amendment?
Holding:
Yes. By a vote of 6-3 the Court ruled in favor of Lawrence.
Reasoning:
1. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Roe we recognized that the protection of liberty under the due process clause has a substantive dimension of fundamental significance in defining the rights of the person. This was the state of the law prior to Bowers.
2. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply the right to have sexual intercourse. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the constitution allows homosexual persons the right to make this choice.
3. It should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. In fact, sodomy was not thought of as a separate category from like conduct between heterosexual persons. In short, the historical grounds relied on in Bowers are more complex than the majority in that case indicate. Their premises are not without doubt, and at the very least are overstated.
4. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Here, Bowers was not correct when it was decided, and it is not correct today. It ought not remain binding precedent, and it is now overruled.
Dissenting:
The Texas law undoubtedly imposes constraints on liberty. But there is no right to liberty under the due process clause. This part of the 14th amendment expressly allows states to deprive citizens of liberty so long as due process of law is provided.
Obergefell v. Hodges (2015)
Relevant Case Facts:
In 2004 Ohio passed an initiative adding to the state constitution that marriages is between one man and one woman. It therefore not only banned SSM but also would not recognize marriages from other states. Obergefell wanted to marry his partner, John Arthur who had ALS, before Arthur died. After being married in Maryland Obergefell wanted to ensure he would be listed on the death certificate as Arthur’s spouse. Ohio refused based on its state constitution.
Legal Question:
Do prohibitions on same sex marriage violate the due process clause, the equal protection clause, or both, of the 14th Amendment?
Holding:
Yes. By a vote of 5-4 the Court ruled in favor of Lawrence.
Reasoning:
1. Petitioners are not trying to demean marriage, they just want to be a part of it. This institution has evolved over time.
2. Loving makes clear the right to marry is protected by the constitution. Four principles support this. First, the right to personal choice of marriage is inherent in individual autonomy. Second, the right to marry is fundamental because it supports a two person union of committed individuals (Griswold). Third, marriage protects kids. Fourth, marriage is a key to social order (Tocqueville).
3. Based on these tenets suggests there is no difference between same sex and opposite sex marriages.
Chief Justice Dissenting:
This goes well beyond judicial power. We are not a legislature and should not invoke our preferences. Substantive DP is a bad theory—Sandford and Lochner.
Cruzan v. Missouri Department of Health (1990)
Relevant Case Facts:
Cruzan was in car accident and remained in a persistent vegetative state which required feeding tubes and hydration for her to survive. Her parents asked doctors to remove the feeding tubes, and they refused to do so. The Cruzans argued that someone in their daughter’s state had “a fundamental right to refuse or direct the withdrawal of ‘death prolonging procedures.’” As evidence that this is what she wanted, they showed that she had told a friend that she would not want to live in such a condition.
Legal Question:
Does a citizen have a right to require a hospital to withdraw life-sustaining treatment when someone is a persistent vegetative state?
Holding:
No. By a vote of 5-4 the Court ruled in favor of the Missouri Department of Health.
Reasoning:
1. Whether a person’s constitutional rights have been violated must be balanced against the relevant state interests.
2. Missouri has recognized that under certain circumstances, a surrogate may act in the interest of the patient in having hydration removed, but it has also instituted safeguards to assure that the surrogate’s actions conform to the wishes of the patient. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements.
3. The state has permissibly sought to advance its interests by requiring the intermediate standard of proof—“clear and convincing evidence”—when the individual interests at stake are “particularly important” and “more substantial than the loss of money.”
4. The clear and convincing evidence standard is constitutionally permissible. Here we cannot say that the Missouri Supreme Court committed constitutional error in reaching the conclusion that Cruzan’s statements are not sufficient to meet this standard.
Concurring (Scalia)
Federal courts have no business in this field. We have long recognized the power of states to prevent suicide. The due process clause only protects against deprivations without “due process of law.”
Dissenting:
Nancy Cruzan has a fundamental right to die and it is not outweighed by the interests of the state. The only state interest asserted here is a general interest in the preservation of life. But the state has no legitimate general interest in someone’s life.
Right to Die after Cruzan (3 cases)
Washington v. Glucksberg (1997): States may ban assisted suicide.
Vacco v. Quill (1997): Difference between refusing treatment and assisted suicide.
Gonzales v. Oregon (2006): The Controlled Substances Act does not control doctor’s ability to dispense a lethal does of drugs to assist in suicide.
