Chapter 6
Personal Autonomy and the
Constitutional Right of Privacy
CHAPTER OUTLINE
I. INTRODUCTION
A. Philosophical Foundations of the Right of Privacy
II. CONSTITUTIONAL FOUNDATIONS OF THE RIGHT OF PRIVACY
A. Substantive Due Process
III. PROCREATION AND BIRTH CONTROL
IV. THE ABORTION CONTROVERSY
A. Roe v. Wade
B. Regulation of Abortion in the Wake of Roe v. Wade
C. Restrictions on Public Funding of Abortions
D. Eroding Support for Roe v. Wade on the Supreme Court in the 1980s
2. Rust v. Sullivan: Restricting Information about Abortion
E. The Court Reaffirms Roe v. Wade
F. “Partial–Birth Abortion”
G. Abortion Rights under State Constituitions
V. PRIVACY AND LIVING ARRANGEMENTS
VI. THE DEMISE OF SODOMY LAWS
A. Romer v. Evans: A Pivotal Decision
B. State Courts Invalidate Sodomy Laws
C. The Supreme Court Overturns Bowers v. Hardwick
VII. THE RIGHT TO DIE
A. The Karen Quinlan Case
B. A Right to Commit Suicide?
VIII. CONCLUSION
CRITICAL THINKING QUESTIONS
1. Is there a sound constitutional basis for the right of privacy recognized in Griswold v.
Connecticut (1965) and subsequent cases?
2. Could the Supreme Court have avoided the abortion controversy altogether? Should it
have done so?
3. If you were nominated to serve on the Supreme Court, would you answer questions from
the Senate judiciary committee pertaining to your predisposition to follow Roe v. Wade?
Why or why not?
6. Would the Equal Protection Clause of the Fourteenth Amendment be a sounder or a
weaker constitutional basis for the Supreme Court’s abortion decisions than the “right to
privacy” implicit in the Due Process Clause of the Fourteenth Amendment?
7. Should the Supreme Court accord greater importance to the Ninth Amendment as a
constitutional source of the right of privacy? How could the Court achieve this goal?
8. Is the constitutional right of privacy only a “negative right” placing limits on government,
or does it include a “positive” aspect requiring government to shield individuals from
invasions of their privacy?
9. Would the right of privacy bar Congress from attempting to limit the number of children
per married couple?
10. Could a state constitutionally impose sterilization as punishment for a person convicted
of rape? What are the constitutional arguments in favor of such a state law? In
opposition?
11. Does the Ninth Amendment right to privacy protect individual information from cell
phone records? Is that only a Fourth Amendment issue or could you argue a right to
privacy has been violated also?
12. What are the major components of the philosophy of classical conservatism? Specially,
13. Should the Supreme Court attempt to determine “penumbras” within the Bill of Rights or
only make rulings based on the specific language contained in the Constitution? What
14. Does the modern Court’s interpretation of the Ninth Amendment come into conflict with
the plain language meaning of the Tenth Amendment? How could states make a
constitutional argument that this is the case? Are you sympathetic to such an argument?
LECTURE LAUNCHERS
Introducing the Concept of the Right to Die under the Constitutional Right of Privacy.
Because abortion is the most widely known topic under the concept of the right to privacy most
students will familiar with Roe v. Wade. However another concept related to the right of privacy
that is not as apparent to many students is the right to die. One method of introducing the concept
of the right to die is to begin with a public opinion study conducted by The Pew Research Center
measuring support for an individual right to die. A report released in 2009 that summarizes and
updates findings of major 2006 study conducted by The Pew Research Center states that an
“overwhelming majority of the public supports laws that give patients the right to decide whether
they want to be kept alive through medical treatment. Moreover, fully 70 percent say there are
circumstances when patients should be allowed to die, while just 22 percent believe that doctors
and nurses should always do everything possible to save a patient.” The report further discusses
public response to the headline making Terri Shiavo case as well as differences in support among
HYPOTHETICAL PROBLEM (FOR CLASSROOM
DISCUSSION OR ESSAY EXAMINATION)
Suppose that Gina McGee, a legislator from the state of New York, in response to growing outcry
from her constituency, attempts to rewrite entirely the state’s current abortion statues and
produces the following purposed law: Henceforth in the state of New York all partial birth
abortions not needed to spare the life of the mother shall be outlawed. Additionally, the state
dictates that first trimester abortions only will be permitted in the state, but that no public funds
Representative McGee then asks you, in your roll as the state’s attorney general, to review the bill
before she introduces it for debate in the state’s general assembly. Your boss, the Governor, tells
you that he is generally supportive of McGee’s bill, but wants to make sure it will survive legal
challenges and does not become a major source of controversy in the state. The Governor tells
you to meet with Representative McGee and iron out any potential problems with her purposed
legislation.
As the New York attorney general, how would you advise Representative McGee regarding the
constitutionality of her purposed bill? Which parts of it would pass constitutional muster and
KEY TERMS
constitutional right of privacy Constitutional right to engage in intimate personal conduct or
make fundamental life decisions without interference by the
state.
abortion The intentional termination of a pregnancy through destruction
of the fetus.
gay rights Summary term referring to the idea that persons should be
permitted to engage in private homosexual conduct and be free
from discrimination based on their sexual orientation.
euthanasia Mercy killing.
moral individualism The doctrine that individuals, not society or government, should
make moral choices.
libertarianism A philosophy that stresses individual freedom as the highest
good.
compelling interest An interest or justification of the highest order.
viability That point in pregnancy where the fetus is able to survive outside
the womb.
Hyde amendment A federal law that prohibits the use of federal welfare funds to
pay for nontherapeutic abortions.
trimester framework The framework established in Roe v. Wade (1973) governing the
validity of laws regulating abortion in the three stages of
pregnancy.
INSTRUCTOR RESOURCES
Barnett, Randy (ed.). The Rights Retained by the People: The History and Meaning of the Ninth
Amendment. Fairfax, VA: George Mason University Press, 1989.
DeRosa, Marshall. The Ninth Amendment and the Politics of Creative Jurisprudence:
Disparaging the Fundamental Right of Popular Control. Somerset, NJ: Transaction Publishers,
1996.
Glick, Henry R. The Right to Die. NY: Columbia University Press, 1994.
McClellan, Grant S. (ed.). The Right to Privacy. NY: H. W. Wilson, 1976.
Miller, Arthur R. The Assault on Privacy. Ann Arbor: University of Michigan Press, 1971.
Murphy, Paul L. The Right to Privacy and the Ninth Amendment. NY: Garland, 1990.
Neeley, G. Steven. The Constitutional Right to Suicide: A Legal and Philosophical Examination.
NY: Peter Lang Publishing, 1994.
O Peter Lang PubliPrivacy, Law, and Public Policy. NY: Praeger, 1979.
OY: Praeger, 1979No Neutral Ground? Abortion Politics in an Age of Absolutes. Boulder, CO:
Westview Press, 1996.
Rubin, Eva R. Abortion, Politics, and the Courts: Roe v. Wade and Its Aftermath. NY:
Greenwood Press, 1987.
NOTES ON EXCERPTED CASES
JACOBSON v. MASSACHUSETTS (1905).
The Supreme Court refused to find in the Due Process Clause a prohibition against compulsory
vaccination laws. Dividing 7–2, the Court upheld the Massachusetts state law that required all
adults to receive the smallpox vaccine after an outbreak of the disease in 1902. Jacobson refused
to get vaccinated and was fined $5. Justice Harlan’s majority opinion recognized that “[t]here is,
MEYER v. NEBRASKA (1923).
In this case, The Supreme Court recognized by a 7–2 majority that citizens have the right to study
foreign languages in private schools, state statutes to the contrary notwithstanding. Meyer had
been convicted of violating a Nebraska statute prohibiting the teaching of foreign languages. Such
BUCK v. BELL (1927).
Carrie Buck, a young woman characterized by the Supreme Court as “feeble minded,” was
committed to a state institution, where her mother was also confined. Pursuant to Virginia state
law, the director of the institution sought to have Carrie Buck sterilized, after she had given birth
to a mentally retarded child. Carrie Buck’s attorneys immediately challenged the statute, but the
POE v. ULLMAN (1961).
In a precursor to Griswold, the Supreme Court dismissed a challenge of Connecticut’s law that
prohibited the use of contraceptive devices even for married people. The plaintiff challenged the
law as a violation of her liberty protected by the Fourteenth Amendment when the state attorney
general threatened to use the statute to prosecute her. The Supreme Court, dividing 5–4, rejected
GRISWOLD v. CONNECTICUT (1965).
Griswold, the director of Planned Parenthood in Connecticut, was convicted and fined $100 for
aiding and abetting persons in using contraceptive devices, an offense under Connecticut law.
The Connecticut courts upheld her conviction, rejecting the contention that the state law was
unconstitutional. The Supreme Court struck down the Connecticut birth control law by a vote of
ROE v. WADE (1973).
Norma McCorvey, a.k.a. Jane Roe, was a 25-year-old, unmarried Texas woman who was faced
with an unwanted pregnancy. As abortion was illegal in Texas, Roe brought suit in federal court
to challenge the constitutionality of the anti-abortion statute. The District Court declared the
Texas law unconstitutional, but refused to issue an injunction, invoking the doctrine of abstention.
Roe appealed directly to the United States Supreme Court. On appeal, the Court handed down a
7-2 decision striking down the Texas law. Justice Blackmun wrote the majority opinion,
concluding that the right of privacy was broad enough to encompass a woman’s decision to
terminate her pregnancy. However, Blackmun noted, “the right [to abortion] is not unqualified
and must be considered against important state interests…” Although a fetus was not, in the
Court’s view, a “person” within the language of the Constitution, states would be permitted
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY
(1992).
Here the Court reviewed a Pennsylvania law that contained a series of restrictions on abortion.
Among other things, the law required spousal notification, parental consent in cases of minors,
and a twenty-four-hour waiting period before an abortion could be performed. Identical
requirements had been declared invalid by the Supreme Court in previous decisions. Justices
O’Connor, Kennedy, and Souter jointly authored the controlling opinion of the Court. This
lengthy joint opinion thoroughly reexamined Roe v. Wade, its underlying rationale and
STENBERG v. CARHART (2000).
LeRoy Carhart, a Nebraska physician, brought suit to challenge the constitutionality of a
Nebraska law banning partial-birth abortions. In a sharply divided decision, the Supreme Court
invalidated the Nebraska law. Writing for the 5–4 Court, Justice Stephen Breyer found that the
law went well beyond the prohibition of late-term abortions and could be invoked to prohibit
certain early-term abortions as well. In Breyer’s view, the law, if allowed to stand, could be
GONZALES v. CARHART (2007).
LeRoy Carhart and other doctors who performed second-trimester abortions filed suit against the
Attorney General of the United States to challenge the constitutionality of the federal Partial-
Birth Abortion Ban Act of 2003, which prohibited doctors from performing a particular form of
abortion, known medically as “intact dilation and extraction,” during the second trimester of
BOWERS v. HARDWICK (1986).
Michael Hardwick was charged with committing sodomy with a male adult in the privacy of his
home in violation of Georgia’s anti-sodomy law that criminalized oral and anal sex between
consenting homosexual adults. Although the state prosecutor decided not to take the case to the
grand jury, Mr. Hardwick brought suit in federal court, seeking a declaration that the statute was
unconstitutional. The District Court dismissed the case, but the Court of Appeals reversed,
remanding the suit for trial. The United States Supreme Court granted the state’s petition for
certiorari, and reversed the Court of Appeals. Dividing 5–4, the Court upheld the Georgia law,
LAWRENCE v. TEXAS (2003).
Two men were convicted of having sex with each other in violation of a Texas law that made it
an offense “to engage in deviate sexual intercourse with another individual of the same sex.” A
Texas appellate court, in a divided opinion, rejected the defendants’ federal constitutional
arguments under both the Equal Protection and Due Process Clauses of the Fourteenth
nonenforcement with respect to consenting adults acting in private.” The Court was careful to
note that its decision does not involve minors, persons who might be injured or coerced or who
are situated in relationships where consent might not easily be refused, or public conduct or
prostitution. Finally, the Court emphasized its decision did not bear on the issue of whether the
government must give formal recognition to same-sex marriages.
WASHINGTON v. GLUCKSBERG (1997).
The Supreme Court unanimously held that the Constitution provides no general right to doctor–
assisted suicide under the constitutional guarantee of due process. Plaintiff argued in this case that
the liberty provision of the Fourteenth Amendment protected the right of terminally ill adults to