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Family Law
University of Cincinnati School of Law
Williams, Verna L.

Family Law


Spring 2013

1. Right to Privacy (private family choices: Constitutional protections for family and members)

a. Contraception

i. Griswold v. Connecticut (1965) (privacy=secrecy/seclusion)

1. Facts: Appellant Griswold = Director of Planned parenthood league. Appellant Buxton is a licensed physician and professor who works at Planned Parenthood and counseled in preventing conception. Appellants were found guilty as accessories and fined 100 each. (statute: person who uses contraception/someone who assists may be punished)

2. Holding: Law not constitutional because it invaded privacy of the relationship of wife, husband and doctor. This law directly operated on the intimate relationship of the w/h/d (associational right—not mentioned in const.). Privacy includes the right of married people to use contraception…right to privacy is fundamental=strict scrutiny (notion of ordered liberty)

3. Reasoning:

a. Certain guarantees made by Bill of Rights create zones of privacy:

i. 1st—freedom of association (e.g. Naacp v. Button: right to express one’s attitudes by membership)

ii. 3rd prohibition against quartering soldiers in peace time w/o consent

iii. 5th—self-incrimination clause: zone of privacy protected from govt. not to make one incriminate himself.

iv. 9th—enumeration of rights shall not deny other rights—right to privacy

b. Present relationship lies w/in zone of privacy…govt. purpose to control or prevent activities cannot be achieved by means which seep unnecessarily broadly and invade the area of protected freedoms

ii. Eisenstadt v. Baird: (1972) personal decisional autonomy

1. Facts: Baird was convicted of exhibiting contraceptive articles while delivering a lecture on contraception and for giving a young woman a package of Emko foam. According to statute he could get up to five years b/c it was a felony for anyone other than a registered physician or pharmacist to dispense information or articles of contraceptive.

2. Extended right to privacy to unmarried people under Equal Protection Clause:

a. Classification=marital status

b. Uses rational basis here—don’t have to go to Strict scrutiny b/c doesn’t even pass RB

3. If right to privacy means anything it is the right of individual married or single to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear a child

iii. Note Case: Carey v. Population Services Int. 431 US 678 (1978) – Court rejects ban on distribution of contraceptives. Burdens imposed by restriction on distribution of contraceptives similar in effect to restriction on use and both must satisfy compelling state interest (Strict Scrutiny?).

b. Roots of privacy (cases est. a foothold for the right to privacy)

i. Meyer v. Nebraska

1. Facts: Plaintiff was convicted for teaching a child German under a Nebraska statute that outlawed the teaching of foreign languages to students that had not yet completed the eighth grade.

2. Holding: The 14th Amendment prohibits states from creating legislation that restricts liberty interests when the legislation is not reasonably related to an acceptable state objective

3. 14th amendment is more than freedom from bodily restraint…Education is a fundamental liberty interest that must be protected (learning another language is not harmful)

ii. Pierce v. Society of sisters

1. facts: Oregon passed a statute requiring all guardians of children between the ages of 8 and 16 to send them to public schools. Appellee claims that enforcement of statute will result in the destruction of their school

2. 14th Amendment provides a liberty interest in a parent’s or guardian’s right to decide the mode in which their children are educated. State can ensure the child is educated but parents can choose the mode…act unreasonable interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control

3. parent’s interest in nurturing and rearing their children deserves special protection against state interference

iii. Pierce and Meyer extend substantive due process would in the constitutional protection of personal liberty to limit the authority of the government to interfere with family matters

2. Liberation of Privacy

a. Liberation of Privacy

i. Lawrence v. TX (2003)

1. Facts: TX statute made it a crime for two person of the same sex to engage in certain intimate sexual conduct. When they entered the apartment they saw Lawrence with anoth

Burden-conditions woman will face in trying to procure an abortion will operate as a substantial obstacles to a woman’s choice to undergo the abortion (undue burden= invalid)

3. Reaffirmed central holding of Roe:

a. Woman’s interest in abortion/privacy(pre-viability)

b. States can prohibit abortion post-viability unless the health of the mother is at risk (not FR)

4. State can inform or persuade

5. Keeps 24 hour waiting period strikes down the rest

6. Father have a cognizable and substantial interest in custody however different before birth b/c woman’s liberty is more at stake than Dad’s

a. Father=sphere of family

b. Mother=sphere of family and bodily integrity (more immediately effected b/c she physically bears the child)

7. Danforth—stare decisis—doesn’t’ have to have husband’s permission (notification here vs. permission in Danforth)

c. Children and Parents

i. Cincinnati Women’s Service Inc. v. Taft (2006)

1. Facial attack-challenge of regulation that limits minors seeking a judicial bypass of the statutory parental-consent requirement to one petition per pregnancy

2. Decides on the rationale of Casey’s large fraction of women rule

a. Proper focus of constitutional inquiry is the group for whom the law is a restriction not the group for whom the law is relevant

i. Must determine if for a large fraction of the women that law acts just as if the state banned abortion completely (women restricted here=circumstances change and would be eligible for abortion)

b. Undue burden=substantial burden to a woman’s right to abortion

3. Roger’s concurrence: violates SC rulings—don’t need large fraction test

4. she is sufficiently mature to make the decision without her parents, or

5. she is not sufficiently mature, but the abortion is in her best interest