Privacy/Autonomy

Question 1

1) Continuum of scrutiny of rights restricting legislation

Answer 1

a) Most scrutiny–>least
i) Douglas (Griswold); Blackmum (Roe)
(1) Inquiry:
(a) Is there a fundamental right implicated?
(b) If yes, almost every statute is uncon’l, but if not, there is low scrutiny (Douglas in Lee Optical)

ii) Harlan (Griswold): DP “liberty” clause: for everything, we look more carefully than Douglas (Lee Op), but still determine rational basis and reasonableness
iii) Douglas (Lee Optical): rational basis standardvery, very low standard (minimal scrutiny)
iv) Stewart (Griswold): if no explicit Con’l right, no review/scrutiny

Question 2

2) Griswold:

Answer 2

Right of (locational) privacy in penumbra of BoR (1,3,4,5,9) is a fundamental right

a) F: CT law prohibiting contraception use (even for married couples) uncon’l; purpose: to restrict extramarital sex
b) Douglas Opinion:
i) Right to privacy is fundamental right in penumbra of BoR (freedom of association in penumbra of 1A); right is not protected by DP clause (but see Roe and Harland conc and Poe dissent (privacy protected by DP))
ii) Doesn’t give specific legal rationales to get from each amendment to privacymay not be trying to say that privacy to preserve explicit rights, but that it “makes those protection more meaningful”
iii) Problem: once we say that one thing connects multiple amendments, why can’t another say that another thing connects those amendments (i.e. freedom instead of privacy)
(1) Why isn’t right to contract valid under method used
c) Dissent: no right of privacy in Con; stupid/silly law =/= uncon’l

Question 3

3) Looming Lochner Issue:

Answer 3

To what extent do courts have power to recognize rights that aren’t explicit in Con. and strike down legislation accordingly?

i) distinguish Lochner; dif between economic and moral rights (inner vs outer); something seems dif, right?; distinguish fundamental rightssomething seems more personal about privacy than economic freedom
ii) FT: Jackson: “The fact is that the most important part of a judge’s work is the exercise of judgment”judges are tasked with making reasonable, common sense value judgments

Question 4

4) Roe v Wade:

Answer 4

right to abortion before viability via DP (NOT penumbra) right of (decisional) privacy

a) F: st law prohibiting abortion uncon’l
b) Blackmum opinion
i) Test: When fundamental rights are involved, reg must be justified only by a compelling st interest
(1) Balance between st interests in potential life and women’s interest:
(a) Trimester approach:
(i) 1st trimester: unfettered right to abortion; regs could only be as other med procedures
(ii) 2d trimester: can’t prohibit, but regs regarding maternal health could be imposed
(iii) 3d trimester (point of viability): st has power to prohibit abortions
ii) cluster of privacy rights: marriage, procreation, childbearing/rearing, family relations
iii) counter: decisional privacy can’t infringe on others’ rightsfetus as a con’lly protected “person”?
c) Looming Lochner Issue:
i) FT: freedom to contract prob. involves another party (employer) with more bargaining power, whereas abortion right just involves decision of woman/doctor; or st can keep people from making bad decisions
(1) should have been decided on EP grounds to avoid Lochner issue
ii) counter: turns on whether fetus = person: Holmes area of reas. social disagreement (min scrutiny)
(1) Rehnquist dissent: this is social/econ legislation: valid if it has rational relation to valid st objective
d) Paternalism?: Picou: st law requiring helmets is con’l use of police power
i) DP privacy/autonomy Roe argument that requiring helmet isn’t so private as reproductive decisions
ii) injuries/risks are borne by public, as opposed to abortion
iii) See Casey (narrowing decisional privacy rights around family relationships)

Question 5

5) Casey:

Answer 5

upholds Roe’s essential holding (right to abortion before viability), but creates undue burden test

a) Sub. DP now law–>but Ct doesn’t use “privacy”, instead it narrows cluster of decisional privacy rights to marriage, procreation, contraception, family relations, child rearing, and educationtrying to block Roe challenges to laws such as wearing helmets
b) Undue burden test (gets rid of trimester approach): reg that has purpose/effect of placing a substantial obstacle in path of woman seeking an abortion of a nonviable fetus
i) Valid: st can give woman info on childbirth options; reflection period; parents’ consent for minors
ii) Invalid: husband’s consent of abortion
c) Stare decisis
i) persistent dissent v stare decisis (applying law as it is, not as it should be)
ii) SD serves to legitimize the Court
iii) ‘Big Lie’ legitimacy theory: legit’y depends on people believing we adhere to rule of law, not opinions
iv) people plan there lives around the availability/non-availability of abortion
(1) “in some areas, it is more important that things be settled, than for things to be settled correctly”

Question 6

6) Hellerstedt:

Answer 6

regs (greatly reduced abortion clinics): 1) admitting privileges requirement: doctor must get AP from hospital w/in 30 miles from where abortion is held and 2) requiring higher facility standards…were unduly burdensome because they provided few, if any benefits and posed a substantial obstacle
a) inquiry requires empirical evextra-judiciality: Ct says decisions can be based on OWN research (not legis’s)

Question 7

7) Glucksberg:

Answer 7

No DP right to physician-assisted suicide under rational relation test since not a fundamental right

a) How do we know what fundamental rights there are?
i) rooted in Nation’s history/tradition (approach in this case)—right to refuse med treatment is right, but not this
(1) problem: so many interpretations of “tradition and history” = skewing history to fit opinion
ii) public opinion = relevant: now commonly understood (developed) as fundamental
(1) Souter conc.: ad hoc balancing test: DP Clause contains substantive protections on liberty, so court must balance cost (restriction)/benefits (st interest)sometimes, there may be a right of phys-assis suicide