Mason & Stephenson: Chapter XIII
Privacy
I. Invigorating a Right of Privacy
Griswold V. Connecticut (1965) (591)
381 US 479
FACTS: See Text.
QUESTION: Is there a constitutionally protected right to marital privacy?
ANSWER: Yes!
REASONING: Justice Douglas wrote the OC for a 7-2 majority. He starts by tracing cases
establishing a right to association and a right to maintain privacy of that association. (See
591, 1st para.).
He then builds the case for these rights and penumbras forming an area of protected
privacy which includes the facts of this case [READ 1:591, col. 1 (2nd para)-col. 2
(1st 5 ll.)].
Douglas goes on to deal with the fundamental nature of this right [READ 2:591 (last 8 ll.)592 (1st 3 ll.)].
Black dissents (w/ Stewart) saying that “Privacy” is not mentioned in the Const and is too broad
and abstract a concept to be using as constitutional shorthand [READ 3:592, col. 2 (1st two
para. of Black)]. He also says if the court has such broad powers as it now claims, it
created them itself and they didn’t come from the Constitution [READ 5:593, col. 2 (last
13 ll.)]. At the end of his opinion Black quotes a long passage of Iredell in Calder v. Bull!
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Stewart dissents strikingly (w/ Black) [READ 593*].
II. Abortion
Roe v. Wade (1973) (594)
410 US 113
FACTS: See Text
QUESTION: May a state prohibit all abortions except when the mother’s life is threatened if there
is no abortion?
ANSWER: No!
REASONING: Justice Blackmun wrote the OC for a 7-2 majority. Blackmun notes the
appellants claim that a woman’s personal right to choose to end her pregnancy is invaded
by the Texas statute [READ 1:594, col. 1 (1st para)]. He goes on to identify the three
reasons most commonly advanced to explain the advent of anti-abortion laws that began to
be enacted in the late 19th C. [READ 2:594, col. 1-595, col. 1].
Blackmun outlines the constitutional foundations of “the right to privacy” [READ 3:595,
col. 1 (last comp. para.)] and states in broad language the Court’s holding on
conclusion on a woman’s right to make the abortion decision [READ 4:595, col. 1
(last 4 ll.)-col. 2 (1st 4 ll.)].
Blackmun then moves to a much more detailed analysis of the definition of “person” in the
Constitution [READ 5:595, 2nd col. (3rd & 4th comp. paras.)]. He moves on to the
medical evidence [See 596, col. 1] and finally offers a summary of the Court’s
conclusions dividing the realms of the woman choice and the state’s interest in the
unborn fetus (using the trimesters of a pregnancy) [READ 596, col. 2 (all)].
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Rehnquist dissents, quoting from Holmes’ dissent in Lochner [see 597 both cols.]. He then
challenges the factual findings of the Court regarding the advent of abortion laws [READ
597, col. 2 (last 3 paras)].
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (587)
505 us 833
FACTS: See Text.
QUESTION: Are the 24 hr. waiting period, the parental consent for minors, informed consent,
and informed spouse (of married women) provisions of Pa.’s “Abortion Control Act”
unconstitutional restrictions on abortion rights under Roe v. Wade?
ANSWER: 24 hr. wait – No. parental consent – No. informed consent – No. informed spouse—
Yes.
REASONING: Justices O’Connor, Kennedy, and Souter announce the judgment of the Court.
They reaffirm Roe [READ 598, col. 1 (2nd para.)].
They also note an oft neglected aspect of Roe [READ 2:600, col. 1 (last 13 ll.)].
In section V they find (we only get a summary from the editors) that sections stricken by
the Court of Appeals were properly stricken and that those provisions upheld by
that Court were properly upheld. [READ 600-601 (last para.)].
Stevens concurs, but makes explicit his view that any compelling state reason cited must
be secular and not based on theological or sectarian reasons.
Rehnquist would affirm all of the restrictions under the statute [601*].
Scalia wants to denounce Roe as a cousin of Dred Scott and Lochner, in a passage you
don’t have.
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Gonzalez v. Carhart (2007) (602)
530 US 914
FACTS: See Text. [In Stenberg v. Carhart (2000), the USSC dealt with a Nebraska statute
outlawing the performance of partial birth abortions and providing for the automatic
revocation of the state medical license of physicians convicted of violating the ban, and
declared it to be unconstitutional in a 5-4 OC written by Justice Breyer (joined by Stevens,
O’Connor, Souter & Ginsburg). Congress passed (claiming authority under the commerce
clause) the Partial Birth Abortion Ban Act of 2003 bolstering the arguments against the
Stenberg decision by adding specificity and details declaring the procedure to be “never
medically necessary.” Challenges came to the USSC from the Ninth and Eighth Circuit
cases declaring the statute to be unconstitutional..
QUESTION: Does the “Partial Birth Abortion Ban Act of 2003” criminalizing the performance
of partial birth abortions place an “’undue burden’ upon a woman’s right to terminate her
pregnancy before viability?”
ANSWER: No!
REASONING: Justice Kennedy wrote the OC for a 5-4 majority (joined by Roberts, Alito, Scalia
& Thomas). After stating the Court’s conclusions [READ 1:603], Kennedy discusses the
reasons for reaching same [See 603-604 & 604, col. 2]. Finally, he addresses the
respondents’ failures to meet their burdens and reverses the decisions of the two Courts of
Appeals [READ 2:605].
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Washington v. Glucksberg (1997) (607)
521 U.S. 702
FACTS: See Text.
QUESTION: Does Washington’s prohibition against causing or aiding a suicide violate the 14th
Am?
ANSWER: No!
REASONING: Chief Justice Rehnquist wrote the OC in a case where all justices supported the
judgment. Rehnquist gives a nice summary of substantive due process rights that have
been have been recognized by the USSC as incorporated to the states through the 14 A.
[READ 608:1]. He then recounts the established two primary features of substantive due
process analysis [READ 608:2]. Finally, Rehnquist concludes from the Court’s analysis
that there is an ongoing national debate over assisted suicide, but that there is also an
important distinction between assisted suicide and a patients right to refuse unwanted lifesaving (prolonging) medical treatment (which is generally recognized as a individuals
right) [READ 610* & see the analysis preceding it 609-610].
Lawrence v. Texas (2003) (611)
539 U.S. 558
FACTS: See Text. In Bowers v. Hardwick (1986), the USSC upheld a GA statute that
criminalized sodomy, defined as oral or anal sex between any persons (heterosexual or
homosexual, married or not). The Texas statute in this case outlawed sodomy (oral or anal
sex) but only between persons of the same sex.
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QUESTION: Does Texas’s statute criminalizing “deviate sexual intercourse with another
individual of the same sex” violate the DP &/or EP clauses of the 14th Am?
ANSWER: Yes!
REASONING: Justice Kennedy wrote the OC for a 6-3 majority. He begins by setting the
question and the Court’s conclusion [READ 1:611]. Kennedy then reviews the holding in
Bowers v. Hardwick, and finds that the Bowers Court did not appreciate the gravity of the
issues raised therein [READ 2:611-612]. The Court then announces that Bowers is
overruled [READ 3:613].
Justice O’Connor’s concurrence asserts that she does not join in the overruling of Bowers,
but does join the Court’s holding in Lawrence.
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