Vol II Chapter 6 - Professor Justin B. Cooley PDF

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Professor Justin B. Cooley...

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Griswold v. Connecticut a) Facts ● Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception (b) Issues (what is in dispute) 1. Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives 2. Does the Constitution provide for a privacy right for married couples? (c) Holding (the applied rule of law) 1. (d) Rationale (reasons for the holding) 1. Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

Dissent ●

Goldberg (concurring) ○ The right to marital privacy though not mentioned explicitly in the Constitution is supported both by numerous decisions of the Court and by the language and history of the 9th amendment. ■ "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." ■ To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because the right is not guaranteed explicitly in the first 8 amendments is to ignore the 9th amendment and give it no effect. ○ In determining what rights are fundamental, courts must look to the traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental. ■ The right of privacy is a fundamental personal right. ○ If a law outlawing voluntary birth control by married persons is valid, then a law requiring compulsory birth control also would seem to be valid. ■ Both of these laws would unjustifiably intrude upon rights of marital privacy which are constitutionally protected. ○ The stated state interest is in discouraging of extra-marital relations. ■ This is a valid state interest. ■ However, it could be served by a more discriminately tailored statute. ■ In fact, CT does have a statute which prohibit adultery and fornication; these statutes are valid and help the state to achieve its purpose.

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Harlan (concurring) ○ The proper inquiry in this case is whether this statute infringes the DPC because it violates basic values implicit in the concept of liberty. White (concurring) ○ I fail to see how the ban on use of contraceptives by married couples in any way reinforces the state's ban on illicit sexual relationships. ■ The sale of contraceptive devices is valid to prevent spread of disease. Black ○ The Court talks about a Constitutional right to privacy as if there was a provision granting such a right. There is not. ○ Privacy is great, but the gov't has a right to invade it unless prohibited by some specific constitutional provision. ○ It is impossible to pick out fundamental rights using the reasoning employed by the Court. ■ The scientific miracles of this ages have not yet produced a gadget which the Court can use to determine what traditions are rooted in the collective conscience of our people. ■ The framers did not intend to vest such awesome veto power over lawmaking in the Court. ■ Use of such broad, unbounded judicial authority would make the Court into an everyday Constitutional Convention. ○ The framers knew that the Constitutional would need to be changed with the times; there is a mechanism for that -- the amendment process. Stewart ○ It is our duty to subordinate our own personal views about what legislation is wise and what is not. ○ It is the job of the people of CT, not for this Court, to get the law repealed through appeals to the legislature.

Roe v. Wade a) Facts ● Roe (plaintiff), a pregnant single woman, brought suit against Wade (defendant), a Texas state official, on the grounds that the statute was an unconstitutional restriction on her

right to obtain an abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -came under strong questioning from Justices Potter Stewart and Thurgood Marshall. (b) Issues (what is in dispute) 1. Is a woman's right to an abortion a fundamental right? (c) Holding (the applied rule of law) 1. A woman's right to an abortion is a fundamental right. ●

(d) Rationale (reasons for the holding) 1. The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.

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Three state interests have been given to explain anti-abortion laws… ○ The laws were a product of a social concern to discourage illicit sexual conduct. ■ No court or commentator has taken this argument seriously. ○ The laws were intended to protect the safety and life of the mother. ■ In the past, the procedure was a hazardous one for the woman. ■ Now, while not without risk, the procedure is relatively safe. ■ Mortality rates for women undergoing early abortions appear to be as low or lower than the rates for normal childbirth. ■ The risk increases as the pregnancy continues. ■ Thus, the state retains a definite interest in protecting the woman's health when the danger of the abortion is equal to the danger of childbirth. ○ The laws were intended to protect pre-natal life. ■ This reason rests on the theory that a new human life begins at the moment of conception. The Constitution does not explicitly mention any right to privacy. However, the Court has recognized a right to privacy or a guarantee of certain zones of privacy under the Constitution. ○ This right to privacy, whether from the 14th or 9th amendment is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. ○ However, this right is not absolute; any attempt to limit this right must meet strict scrutiny. ■ The word person, as used by the 14th amendment, does not include the unborn. ■ The amendment does not say so, and legal abortion practices were far freer than they are today. ■ The pregnant woman is not isolated in her privacy right. ■ The health and life of the other being is an interest at some point. ■ The Court will not decide when life begins; no one else has been able to do it.

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However, most physicians seem to point to the point at which the fetus becomes viable (potentially able to live outside the mother's womb) - 24 to 28 weeks. Thus, the state has an important and legitimate interest in preserving and protecting the health of the pregnant woman and that it has still another important and legitimate interest in protecting the potentiality of human life. ○ The compelling point for the health of the mother comes at the end of the first trimester since the dangers of abortion equal the dangers of childbirth at this point. ○ The compelling point for the potential life comes at the point of viability since the being has the capability of meaningful life outside the mother's womb at this point.

Dissent ●

Rehnquist ○ The right of privacy is not involved in this case. ■ A transaction resulting in an operation such as this is not private in the ordinary usage of that word. ■ Since the right at issue here is just the right not to be interfered with by the gov't, the laws in question must only meet the rational basis test. ○ The fact that a majority of states have had restrictions on abortions for at least a century is a strong indication that the asserted right to an abortion is not so rooted in tradition as to be ranked as fundamental. ■ The statute in question here was enacted before the adoption of the 14th amendment and has persisted to this day. ■ There apparently was no question regarding the validity of this provision or of any other state statutes when the 14th amendment was adopted. ■ The drafters did not intend to have the 14th amendment withdraw from the states the power to legislate with respect to this matter.

Planned Parenthood of SE Pennsylvania v. Casey a) Facts ● Planned Parenthood (plaintiff) brought suit against Casey (defendant), the Governor of Pennsylvania, in federal district court for the purpose of challenging five restrictions on abortion under Pennsylvania law. Most significantly, the Pennsylvania statute required informed consent and a 24-hour waiting period for all women prior to undergoing the procedure. All minors seeking an abortion were required to obtain the informed consent of at least one parent, while a married woman had to show that she notified her husband

of her intent to abort the fetus. The district court issued judgment for Planned Parenthood, but the court of appeals upheld all Pennsylvania provisions except the requirement of spousal notification. The United States Supreme Court granted certiorari. ● The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. (b) Issues (what is in dispute) 1. Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade? (c) Holding (the applied rule of law) 1. (d) Rationale (reasons for the holding) ● In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undueburden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices. ● Dissent. Justice Blackmun: Would hold that the 24-hour waiting period is clearly

unconstitutional. The recordkeeping and reporting requirements are unconstitutional. A regulation designed to inform the public about public expenditures does not further the State’s interest in protection maternal health. a. Justice Stevens: Provisions of the Act requiring a physician to provide materials to persuade a woman not to have an abortion are unconstitutional. The State may not inject such information into a woman’s deliberations just as she is weighing this important decision. Doing so amounts to an undue burden on a woman’s right to obtain an abortion before her fetus reaches the stage of viability. b. Chief Justice Rehnquist: One cannot ignore the fact that a woman’s decision to abort necessarily involves a fetus. She is not isolated in her pregnancy. Moreover, historical traditions do not support the holding that the right to an abortion is “fundamental.” Therefore, it is improper to say that a law interfering with such a right must be able to withstand strict scrutiny. The question really before us is whether the provisions of the Act are rationally related to a legitimate governmental interest. c. Justice Scalia: A woman’s right to have an abortion is not a liberty protected by the United States Constitution. This conclusion is reached because (1) the Constitution says nothing about it, and (2) the traditions of

American history have allowed it to be legally proscribed. Justice Scalia would uphold the Pennsylvania statute on the basis of the rational basis test. d. Concurrence. Justice Blackmun: Restrictions on abortion violate a woman’s right to privacy in two ways: (1) it infringes upon a woman’s right to bodily integrity, and (2) it deprives a woman of the right to make her own decisions about reproduction and family planning. e. Justice Stevens: Provisions of the Act requiring a physician to inform a woman of the nature and risks of the abortion procedure and of carrying to term, are neutral requirements, like those imposed for other medical procedures, and therefore are constitutional.

Bowers v. Hardwick a) Facts ● Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari. (b) Issues (what is in dispute) 1. Whether the act of consensual homosexual sodomy is protected under the fundamental right to privacy. 2. Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal? (c) Holding (the applied rule of law)

1. no (d) Rationale (reasons for the holding) 1. No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy. 2. Dissent. The dissenting opinions are as follows: a. Justice Harry Blackmun (J. Blackmun). “[T]he right of an individual to conduct intimate relationships in the intimacy of his or her own home [as seen in this case] seems . . . to be the heart of the Constitution’s protection of privacy.” b. Justice John Paul Stevens (J. Stevens). “The Court orders the dismissal of respondent’s complaint even though the State’s statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State’s post hoc explanations for selective application are belied by the State’s own actions. At the very least, . . . it [is] clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss.” 3. Concurrence. The concurring opinions are as follows: a. Chief Justice Warren Burger (J. Burger). “I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.” b. Justice Lewis Powell (J. Powell). Even though the Respondent has no fundamental right to engage in consensual sodomy, he may “be protected by the Eight Amendment of the Constitution” because the Respondent may be imprisoned for his homosexual acts “for up to 20 years for a single private, consensual act of sodomy.”

Lawrence v. Texas a) Facts ● A Texas statute made it a crime for two persons of the same sex to engage in certain intimate sexual conduct. Officers of the Harris County Police Department in Houston, Texas were dispatched to a private residence in response to a reported weapons disturbance. Upon entering the apartment where Lawrence (defendant) resided, the officers observed Lawrence and another man, Garner (defendant), engaging in anal sex. The two men were arrested, held in custody overnight, charged, and convicted by a Justice of the Peace in the State of Texas (plaintiff). The defendants exercised the right to a new trial in Texas Criminal Court, which affirmed the convictions. The court of appeals affirmed the convictions, and the United States Supreme Court granted certiorari. (b) Issues (what is in dispute) 1. whether a statute prohibiting specific sex acts violates liberty under the Due Process Clause of the Fourteenth Amendment. 2. Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? (c) Holding (the applied rule of law) 1. Yes, the Court held that the Texas statute making it a crime for two persons of the same

sex to engage in certain intimate sexual conduct violates the Due Process Clause. (d) Rationale (reasons for the holding) 1. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents. 2. Dissent. Justice Scalia: He believes that since the court does not find homosexual sodomy to be a fundamental right, and merely describes it as an “exercise in liberty”, a rational basis scrutiny should be applied, and in doing so, the law would be upheld. In addition, the court's willingness to overturn Bowers rather than use stare decisis, is inconsistent with other case law such as Planned Parenthood, and thus, feels the court should be consistent and stable rather than being “manipulative in invoking the doctrine”. Since all laws, by definition (as example, prostitution, using heroin, etc) affect liberty, they would all be unconstitutional under this court’s ruling.

Concurrence. Justice O’Connor: She does not join the court in overturning Bowers, but rather, reaches her conclusion based on equal protection, rather than any due process clause. She states that even using a rational basis review “we have consistently held that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state interests”. She comes to this conclusion based on the fact that sodomy is not prohibited between opposite sex partners, thus unfairly targets same sex partners and makes...