Government Power and Privacy ESSAY

Government Power and Privacy

Module 3

Privacy

• Making individual decisions without government interference
• Torts or violations of civil liberties, but privacy not explicit in U.S. Constitution
• Explicitly stated liberties
• Religion
• Associate
• Search and seizure

Privacy derived, not stated in constitution

• Based on other explicit amendments like right from interference in speech, assembly, unlawful search and seizure, religion, case law in court decisions has recognized right to privacy.

Griswold v Connecticut (1965)
Eisenstadt v Baird (1973)

• First mention of privacy is in Griswold (1965)
• Privacy recognized in the federal Constitution?
• Justice Douglas cites Fourth and Fifth Amendments as right against all government invasions “of the sanctities of a man’s home and the privacies of life.”
• Connecticut law prohibiting use of contraceptives invalidated
• Eisenstadt (1973)

1. Fundamental interest to privacy protected by federal court includes use of contraceptives by married and unmarried

2. Shows willingness of court to examine legislation and discretion of state closely and suspiciously to see if there is a state compelling interest and if it has minimal impact on the individual

Roe v Wade & Doe v Bolton (1973)

• State’s Police power vs. individual right
• Overruled Texas law making abortion a felony (except to save life of mother)
• Under “close scrutiny” State did not meet criteria of having “compelling interest”
• Cited Griswold and Eisenstadt
• State argues two compelling interests:
• Protecting health of mother
• Protecting potential human life, fetus

Roe & Doe

• State may have interest in regulating abortion and invade woman’s right of privacy if it is for protection of a living person
• Fetus is a person after 6-8 months, so only rights of a person, the mother, is a compelling interest. Until then unborn fetus is not viable, not capable of life outside the womb, therefore, not a person.

Roe & Doe

• State cannot regulate women’s right to privacy in first two trimesters of pregnancy
• State can regulate after that if reasonably related to maternal health
• Doe challenged GA law requiring restrictions on abortion
• Only physician can perform it
• Two other physicians concur
• Performed only in hospital, licensed and JCHA-O (now Joint Commission) accredited, and
• Approved by committee of three other medical staff

Doe v Bolton (1973)

• Are four Georgia law conditions constitutional?
• Earlier decisions said state could
• regulate “fundamental interest” in privacy if it can survive “close scrutiny”
• had justification of a “compelling interest”

Court ruled these requirements not constitutional as same conditions not required for other medical procedures

Applications and fallout of 1973 abortion decisions

• Court will use power to review constitutionality of state legislation including and beyond abortion issues
• State could not require women under 18 to get parental consent

• Married women did not have to have consent of husband
• Could require consent in writing and certification of “informed consent” prior to procedure
• Abortion became political issue

Bowers v Hardwick (1986)

• Privacy application?
• Openly gay adult male in GA arrested in the bedroom of his home for engaging in sex with another consenting adult male (arrested by policeman who had come to home to serve warrant regarding parking tickets, invited in by roommate)
• Charged with violating state’s sodomy law

Bowers

• Did state of Georgia have compelling interest to interfere with individual’s fundamental right?
• White, Rehnquist, O’Connor, Burger, and Powell reversed Circuit Court decision
• Said no “fundamental interest” was violated and legislation only had to be “rational” to be constitutional
• Opinion by White: Rational can be just a notion of morality.. and if Court intervenes in all morality cases, would be very busy, so will not invalidate sodomy laws in 25 states.

Bowers and privacy

• If deciding whether to have an abortion possibly with the aid of a physician and whether to use contraceptives without government interference are fundamental rights, how is who you choose to have consensual sex with, not a fundamental right? Did court follow the two tier test?

Bowers case review

• Court seems to have applied close scrutiny and asked state to show a compelling interest in other privacy cases involving contraceptives and abortion, but in Bowers, where fundamental right of who and how one has sex in privacy of home is at question, the court says it is not worthy of their time.

Webster v Reproductive Services (1989) Missouri

• Court divided. One side arguing privacy is a fundamental interest and others not in agreement that abortion is a fundamental right.
• Sandra Day O’Connor is swing vote, appointed by President Reagan, writes majority opinion upholding right to abortion.

Planned Parenthood of Southeastern PA v Casey (1992)

• Legislation proposed requiring restrictions on abortion:
• Informing woman 24 hrs. prior of risks and age of unborn
• Must read a state brochure to expose woman to options like adoption
• Husband must be notified

Earlier cases ruled these interfered with “fundamental right” of woman and court applied “close scrutiny” to states law. Roe v Wade would rule these unconstitutional, but Casey does not.

Casey

• Sandra Day O’Connor reaffirms three principles from Roe:
• Right of woman to choose to have an abortion before viability without interference from the state
• State can restrict abortion after fetal viability
• State has interest in pregnancy to protect health of woman and life of the fetus that may become a child

O’Connor’s opinion upheld constitutionality in Casey of requiring informed consent, 24 hr waiting period and pro-life information, but not husband notification. This considered an undue burden.

Legal reasoning or pragmatic judicial politics?

• Did O’Connor have a legal rationale or just found a majority opinion?
• Only Souter and Kennedy endorsed opinion in entirety
• Stevens and Blackmun voted with majority with concurring separate opinions
• Four justices would have overturned Roe entirely: White, Rehnquist, Scalia, and Thomas
• Scalia labeled O’Connor’s opinion as “unjustified constitutional compromise”

Legal opinions or sour grapes?

• Justice Scalia’s minority opinion took serious issue with O’Connor’s majority opinion:
• Scalia says states should have complete discretion to regulate or prohibit abortions
• Scalia writes, “The best the court can do to explain how the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.”

Right to Privacy and Right to Die Cases

• Quinlan (1976)
• New Jersey parents of 21 yr old Karen Quinlan requested guardianship to end life support for daughter in chronic irreversible vegetative state
• NJ Supreme Court decision became a pattern
• State had no compelling interest that could outweigh the fundamental interest of individual to refuse treatment and her right is meaningless unless someone can act on her behalf.

Bouvia v Superior Court (1986)

• Allowed a competent, disabled woman to refuse forced feeding even if her intended result was to terminate her life.
• Court decisions seen as constitutional issue:
• Whether courts can intervene through guardianship in what is normally an individual choice

Principles on right to life

State can claim “compelling interest” in

• Protecting or promoting life
• Preventing suicide or active taking of life
• Protection of innocent third parties
• Promotion of the ethical integrity of the medical profession

Rarely do these interests override fundamental interest of the individual

Cruzan v Director, Missouri Dept. of Health (1990)

• Family of Nancy Cruzan asked hydration and nutrition be terminated for her, concluding this from earlier statements she had made, but family had no documents
• While recognizing common law right to refuse treatment based on informed consent, Court said Missouri’s interest to promote life outweighed right to refuse treatment in this circumstance.

Cruzan (1990)

• Family/Nancy needed a living will.
• Needed clear and convincing evidence that when competent the patient had a preference for refusing treatment
• Rehnquist in 5-4 decision stated:
• 14th amendment says no state may deprive any person of life liberty or property without due process of law
• Does U.S. Constitution prohibit establishing procedures to ensure person’s wishes to refuse treatment
• Court says state can require procedures

Conclusions

• Individuals, disabled or not, have a right to refuse treatment even if it results in their death
• States can require processes to ensure due process for individual
• Living wills and advanced directives became popular after Cruzan case.

Glucksberg v Washington (1997)

• Appears to be debate within court on right to die, but no clues from them on its constitutionality
• Glucksberg: Washington state law says physicians can withhold or withdraw life-sustaining treatment at the request of a patient, but criminal code defines assisting or promoting suicide as a felony. Lawsuit by plaintiffs argued competent, terminally ill had right to hasten their death with medication prescribed by their physicians.

Glucksberg

• Citing Casey and Cruzan said state laws are constitutional.
• May have fundamental interest in right to refuse treatment and privacy, but not to control timing and manner of own death.
• Rehnquist: History, values, tradition prevents assisted suicide.

Vacco v Quill

• NY physicians can aid dying patients but not actively participate in what was considered a suicide.
• Rehnquist opinion that state did not affect suspect class nor a fundamental interest and only needed to be rational to be upheld, meaning…
• Supreme Court not willing to recognize right to die as a fundamental right

Death with Dignity laws:
Oregon, et al

• States following the Oregon Death with Dignity example have been permitted to create laws that allow diagnosed terminally ill patients under certain conditions to alleviate pain early through arranging an early death.
• Appears that avoiding 6 months of pain until your death is not choosing the timing and manner of your death.

Conclusion

• “Supreme Court over time has struggled to make principled, not political, decisions and has managed to do so most of the time with a fair degree of success.”—Wing
• Personal preferences, philosophies, and political leanings affect how justices read the Constitution.
• Justices, like us, have strongly held feelings and beliefs over issues like abortion, sexual privacy, and dying.

Updated 7/10/20

Slides developed using The Law and the Public’s Health, 7th ed., 2007 by Kenneth Wing.