Privacy and Autonomy after Roe

Question 1

3 Broad conceptions of privacy

Answer 1

i) Informational privacy: the ability or the right to keep information about yourself to yourself / ability to control the dissemination of information about yourself.
ii) Locational privacy: 3rd and 4th amendments: controlling your space, and keeping others out of your house. Constitutional protection about unreasonable search and seizures
iii) Decisional Privacy: privacy to make decisions about your own life (without decision in Roe and Casey, might not have thought of decisional privacy as important).

Question 2

Personal liberties as a matter of substantive due process:

Answer 2

In Washington v. Glucksberg, SCOTUS says explicitly that they are recognizing substantive due process as legitimate, but there are disagreements about what is included.

Question 3

(1) Harm principle:

Answer 3

state can only act legitimately to deal with harms

(a) Is morality none of the states’ business? At lease in Glucksberg, the answer is no - there are many things that are prohibited for moral reasons.
(b) The courts are not the ones to invalidate or make these decisions, these are the kinds of decisions best left to the legislature

Question 4

(2) Anti-paternalism:

Answer 4

should the state have the authority to deal with things that are harms, but only to those who have voluntarily engaged in them? The use of certain drugs/ alcohol/gambling/dueling/etc.

(a) even if we say that physical assisted suicide bans are paternalistic, there is no clear legal or social answer to all of this and as a result the court is unwilling to make the decision.
(b) If Glucksberg was decided the other way, many paternalistic laws open to challenge iii) Constitutional logic: neither prohibiting nor authorizing physician assisted suicide contravenes the constitution. It is as open to the states to prohibit it as it is for the states to allow it.
(c) Counter argument to paternalism: we have a history of taking risks, which falls under the Due Process Clause

Question 5

Washington v. Glucksberg (1997)(p. 502): note 9-0 Decision.

Answer 5

i) Rule: right to die is not a fundamental right because such a right historically has been rejected, and since it is not a fundamental right rational basis scrutiny applies and since there is a rational basis (in protecting sick individuals) the law stands.
(1) One of the important dimensions of the case is the rejection of Justice Souter’s sliding scale proposal and instead follows a two step process:
(a) If no fundamental right involved: back to minimal rational basis scrutiny (Nebbia, Carolene Products, Williamson, Ferguson).
(b) If a fundamental right involved: strict scrutiny.

Assisted Suicide NOT a fundamental right; State has rational basis

Question 6

Cruzan v. Director, Missouri Department of Health (1990)(discussed in Glucksberg)

Answer 6

i) Cruzan was in a vegetative state. Court held that DPC did not permit Cruzan’s parents to refuse life-sustaining treatment on their daughter’s behalf.
ii) Court held that while individuals enjoyed the rights to refuse medical treatment under DPC, incompetent persons were not able to exercise such rights.
iii) Absent “clear and convincing evidence that Cruzan desired treatment to be withdrawn, Court found the State of Missouri’s actions designed to preserve human life to be constitutional.

Question 7

Vacco v. Quill (1997)(p. 515)

Answer 7

i) Court held NY’s ban on physician assisted suicide did not violate the 14th Amendment’s EPC by allowing competent terminally ill adults to withdraw their own life-saving treatment but denying the same right to patients who could not withdraw their own treatment
ii) Court used rational basis: NY’s ban was rationally related to the state’s legitimate interest in protection medical ethics, preventing euthanasia, shielding the disabled and terminally ill from prejudice which might encourage them to end their lives, & the preservation of human life
iii) Court distinguishes between the refusal of life saving treatment and suicide.