Chapter 10 Contrast Substantive Due Process And The Rational

Chapter 10 – The Right to Privacy

Type: E

1. Contrast substantive due process and the rational basis approach. How does the Court decide

cases that involve what it deems fundamental rights as opposed to rights that may not be

fundamental?

2. How did Justice Brandeis’ dissent in Olmstead promote the right to privacy?

3. How did Lochner and Meyer contribute to the right to privacy?

4. Why is Justice Harlan’s dissent in Poe important? How, if at all, did it change the Court’s

view of substantive due process?

5. In Griswold v. Connecticut, Justice Douglas said the Bill of Rights has “penumbras,” and used

these penumbras to support the right to privacy. What did he mean by “penumbras,” and what

are two areas of the Bill of Rights he pointed to as evidence of a right to privacy?

6. What effect did Griswold and Eisenstadt have on the abortion rights movement?

7. Describe the trimester framework that Blackmun outlined in his majority opinion in Roe v.

Wade (noting when, if ever, it allowed states to regulate abortion).

8. Compare and contrast the “strict scrutiny” approach to restrictive abortion laws outlined in

Blackmun’s opinion in Roe and the “undue burden” approach O’Connor adopted in later cases.

Which do you think is a more appropriate lens through which to decide abortion cases?

9. How did groups try to limit the right to obtain an abortion after Roe? Were these efforts

successful? Which limits have been upheld and which have been rejected?

10. How did Casey change the legal standard used in Roe? Has this change substantially changed

whether women can obtain an abortion on demand?

11. Why did the Court uphold the partial birth abortion restrictions in Gonzalez?

12. How do abortion rights in the U.S. compare to the rights granted women globally?

13. How do fourth amendment cases (specifically Katz and Stanley) implicate the right to

privacy?

14. Contrast the different readings of Stanley v. Georgia in the majority and dissenting opinions

of Bowers v. Hardwick. Which do you think makes the better argument? Why?

15. According to the majority in Lawrence what was the major defect in the Court’s analysis of

liberty in Bowers?

16. Detail two of the arguments of Chief Justice Rehnquist in his majority opinion in favor of

Missouri in Cruzan v. Director, Missouri Department of Health.

17. How did the opinion in Cruzan protect the rights of those who want to die but who have been

rendered incompetent?

18. What has the Court said about individuals having a fundamental right to die?

19. Describe two new issues that recent technology has brought to the debate over privacy.

20. What has the Court said about drug testing generally in terms of the right to privacy? How

does this right differ for public school students?

21. Why did Justice Scalia disagree with the Court in Lawrence? What did he say about the

ability of states to regulate morality?

22. Why do Epstein and Walker argue that Carhart v. Gonzalez may not be reason for concern

23. Why do people who sign petitions not have a right to keep their signature private according

to Reed?

24. Do you think the constitution provides a right to privacy? Why or why not?

25. How might the 9th Amendment come into play over the right to privacy?

26. Substantive due process draws on what key word in the 14th Amendment?

27. Which of the following amendments was not cited as a location of the right to privacy in the

Griswold opinions?

28. In the majority opinion in Roe, where did the Court locate the right to privacy?

29. In Planned Parenthood v. Casey, what provision of the Pennsylvania statute was ruled an

“undue burden” and thus invalidated?

30. Which statement best describes the Supreme Court’s decisions in cases involving state

funding of abortions?

31. In what case did the Supreme Court’s majority opinion reject Roe’s trimester framework?

32. Lawrence v. Texas overruled what previous decision?

33. On what did Justice O’Connor base her concurring opinion in Lawrence v. Texas?

34. In Vernonia School District 47J v. Acton, the Supreme Court ruled that random drug testing

of student athletes:

35. In Washington v. Glucksberg and Vacco v. Quill, the Supreme Court:

36. What justice wrote a dissent in Olmstead v. United States that became an important opinion

in the right to privacy debate?

37. In Lochner v. New York (1905), the court relied on what doctrine in its decision?

38. Where does the word privacy first appear in the Constitution?

39. In general, how has the Supreme Court ruled on the issue of parental consent for minors

seeking an abortion?

40. What was the test proposed by O’Connor in her Akron dissent?

41. The Right to Privacy does not explicitly exist in the Constitution. However, this has not

stopped a majority of the justices on the Court to conclude that a fundamental Right of Privacy

does exist. Trace the early foundations on which some members of the Court were willing to

protect an individual from government intrusion into their personal life. How was this

transformed in Harlan’s decision in Poe v. Ullman? Next, discuss the different justice’s views on

the Right to Privacy found in Griswold. Explain Justice Douglas’ discussion of penumbras and

why they are so important to his justification for a Right to Privacy. How did the other justices

defend a right to Privacy? What justification did the dissenters in the case offer against a right to

privacy? What has been the interpretation of privacy issues since Griswold? To what areas has

the Court been willing to extend the privacy right, and what have been its justifications?

42. Reproductive law is one of the most controversial issues for the Court. First, explain the

significance of Roe v Wade. Next, explain how the doctrine set out in this case allowed the Court

to rule that most standards regulating abortion were unconstitutional until the early 1980s. Then

discuss how and why the Court changed its views on abortion in the 1980s. Finally, explicate

how the decision in Casey affected what standards were acceptable regulations, and which were

not. Within this answer you should draw distinctions between the different standards proposed to

deal with abortion rights. Also, explain the significance of Justice O’Connor’s dissent in Akron.

43. In early 2006 the South Dakota legislature passed a law which affected the rights of doctors

to perform abortions within the state. Sections 1-4 of the law read as follows:

Section 1. The Legislature accepts and concurs with the conclusion of the South Dakota Task

Force to Study Abortion, based upon written materials, scientific studies, and testimony of

witnesses presented to the task force, that life begins at the time of conception, a conclusion

confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that

each human being is totally unique immediately at fertilization. Moreover, the Legislature finds,

based upon the conclusions of the South Dakota Task Force to Study Abortion, and in

recognition of the technological advances and medical experience and body of knowledge about

abortions produced and made available since the 1973 decision of Roe v. Wade, that to fully

protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her

unborn child, and the mother’s fundamental natural intrinsic right to a relationship with her child,

abortions in South Dakota should be prohibited. Moreover, the Legislature finds that the

guarantee of due process of law under the Constitution of South Dakota applies equally to born

and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother

and her unborn child, each possess a natural and inalienable right to life.

Section 2. No person may knowingly administer to, prescribe for, or procure for, or sell to any

pregnant woman any medicine, drug, or other substance with the specific intent of causing or

abetting the termination of the life of an unborn human being. No person may knowingly use or

employ any instrument or procedure upon a pregnant woman with the specific intent of causing

or abetting the termination of the life of an unborn human being.

Any violation of this section is a Class 5 felony.

Section 3. Nothing in section 2 of this Act may be construed to prohibit the sale, use,

prescription, or administration of a contraceptive measure, drug or chemical, if it is administered

prior to the time when a pregnancy could be determined through conventional medical testing

and if the contraceptive measure is sold, used, prescribed, or administered in accordance with

manufacturer instructions.

Section 4. No licensed physician who performs a medical procedure designed or intended to

prevent the death of a pregnant mother is guilty of violating section 2 of this Act. However, the

physician shall make reasonable medical efforts under the circumstances to preserve both the life

of the mother and the life of her unborn child in a manner consistent with conventional medical

practice.

Medical treatment provided to the mother by a licensed physician which results in the accidental

or unintentional injury or death to the unborn child is not a violation of this statute.

Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is

performed or attempted to any criminal conviction and penalty.

A group of doctors and women have sued the state, claiming that this law violates the

fundamental right to obtain an abortion without government regulation (at least in the first

trimester) set out in Roe v. Wade (1973). If you were a justice on the U.S. Supreme Court and

this case came before you, how would you rule?

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?

Reasoning:

Concurrence (Goldberg with Brennan):

Concurrence (Harlan):

Dissent (Black and Stewart):

Dissent (Stewart and Black):

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?

Reasoning:

Dissent (Rehnquist and White):

Dissent (White and Rehnquist):

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Relevant Case Facts:

The state of Pennsylvania amended its abortion law in the following ways: It instituted an

informed consent/twenty four hour waiting period; doctors must provide a list of adoption

agencies to the woman seeking an abortion; spouses must be notified of the woman’s decision;

women under 18 must obtain the informed consent of one parent prior to obtaining an abortion;

and all abortion facilities must file reports about the procedure.

Legal Question: Do the new provisions of the Pennsylvania abortion statute violate the

constitutional right to privacy?

Reasoning:

Concurring in Part and Dissenting in Part (Stevens):

Concurring in Part, and in the Judgment, and Dissenting in Part (Blackmun):

Concurring in the Judgment and Dissenting in Part (Rehnquist, White, Scalia, and

Thomas):

Concurring in the Judgment and Dissenting in Part (Scalia, Rehnquist, White, and

Thomas):

CASE CUT DELETE IF YOU LIKE

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?

Court (White):

Dissent (Blackmun, with Brennan, Marshall, and Stevens):

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.

Reasoning:

Concurring in the Judgment (O’Connor):

Dissenting (Scalia, Rehnquist, and Thomas):

Dissenting (Thomas):

Cruzan v. Director, 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.

Leal Question: Does a citizen have a right to require a hospital to withdraw life-sustaining

treatment when someone is a persistent vegetative state?

Reasoning:

Concurring (O’Connor):

Concurring (Scalia):

Dissenting (Brennan, with Marshall and Blackmun)