Title: 16-01pp.544
1. Substantive due process draws on what key word in the Fourteenth Amendment?
2. Which of the following amendments was not cited as a location of the right to privacy in the
Griswold opinions?
3. In the majority opinion in Roe v. Wade, where did the Court locate the right to privacy?
4. In Planned Parenthood v. Casey, what provision of the Pennsylvania statute was ruled an
“undue burden” and therefore invalidated?
5. Which statement best describes the Supreme Court’s decisions in cases involving state funding
of abortions?
6. In what case did the Supreme Court’s majority opinion reject Roe’s trimester framework?
7. Lawrence v. Texas overruled what previous decision?
8. On what did Justice O’Connor base her concurring opinion in Lawrence v. Texas?
9. In Washington v. Glucksberg and Vacco v. Quill, the Supreme Court _______.
10. Which justice wrote a dissent in Olmstead v. United States that became an important opinion
in the right to privacy debate?
11. In Lochner v. New York, the Court relied on what doctrine in its decision?
12. Where does the word privacy first appear in the Constitution?
13. In general, how has the Supreme Court ruled on the issue of parental consent for minors
seeking an abortions?
14. What was the test proposed by O’Connor in her Akron dissent?
15. In Vernonia School District 47J v. Acton, the Supreme Court ruled that random drug testing
of student athletes _______.
16. What part of the Missouri abortion law did the Court find constitutional in Webster v.
Reproductive Health Services?
17. After he retired, what did Justice Powell say about Bowers v. Hardwick?
18. U.S. v Windsor _______.
19. Why did the Court disagree with the federal government in Gonzalez v. Oregon?
20. Contrast substantive due process and the rational basis approach.
21. In Griswold v. Connecticut, Justice Douglas said the Bill of Rights has “penumbras,” and he
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?
22. 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).
23. 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.
24. Contrast the different readings of Stanley v. Georgia in the majority and dissenting opinions
of Bowers v. Hardwick.
25. Detail two of the arguments Chief Justice Rehnquist made in his majority opinion in favor of
Missouri in Cruzan v. Director, Missouri Department of Health.
26. Describe two new issues that recent technology has brought to the debate over privacy.
27. What rationale did Brandeis provide to support the right to privacy in his Olmstead dissent?
28. What rationale did Harlan provide to support the right to privacy in his Ullman dissent? Why
do some scholars consider this dissent so important?
29. Why might it be do argued that Carhart v. Gonzalez may not be reason for concern that Roe
may eventually be overturned?
30. The right to privacy does not explicitly exist in the Constitution, but a majority of the justices
have concluded that a fundamental privacy right exists. Trace the early foundations on which
some members of the Court were willing to protect individuals from government intrusion into
their personal lives. How did Harlan transform these ideas in Poe v. Ullman? Next, discuss the
different justices’ views on the right to privacy found in Griswold. Explain Douglas’s 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?
31. Reproductive law is one of the most controversial issues addressed by the Court. First,
explain the significance of Roe v Wade. Next, explain how the doctrine set out in this case
allowed the Court until the early 1980s to rule that most standards regulating abortion were
unconstitutional. 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
O’Connor’s dissent in Akron.
32. In early 2006 the South Dakota legislature passed a law that 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?
33. Since the late 1980s, policy makers have debated the question of how society should deal
with the problem of women’s substance abuse during pregnancy. No state had criminalized drug
use during pregnancy until Westphalia (in the western United States) passed H.R. 2490, which
specifically made alcohol or drug use during pregnancy, including the use of prescribed
narcotics, a criminal offense. The law specifically equated ingestion of any controlled substances
(legal or illegal) with child abuse.
Wilma Rubble was a Gulf War Veteran who was awarded the Purple Heart after being injured in
combat. She recovered but had been on Percocet since 2005 for ongoing pain from her combat
injury. When she found out she was pregnant her doctor informed her that H.R. 2490 prohibited
him from refilling any more Percocet prescriptions for her. She then found a new primary care
doctor who was willing to treat her pain with another narcotic that was known to have fewer side
effects. However, she and the doctor were turned in to the police by a lab tech who had analyzed
blood drawn from Rubble during Rubble’s eighteenth week of her pregnancy. The tech found
evidence of narcotic use during the blood analysis. Rubble was charged under the state criminal
statute and was convicted of child abuse, which carried a maximum sentence of twenty-six
months in jail. She appealed to the state Supreme Court, arguing that her right to privacy
specifically allows her to take any medication legal under state law. The high court disagreed and
upheld her conviction. The majority argued that the state has an interest in protecting the life of a
fetus.
Rubble has appealed to the U.S. Supreme Court. She argues that life does not begin until birth
and that her right to privacy outweighs the state’s interest in protecting the unborn fetus. As a
justice on the Court, how would you decide this case? Use the privacy cases you have read in
class to justify your answer.