I. Private Family Choices: Constitutional Protection for the Family and its Members
A. Evolution of the Right to Privacy
1870’s-Comstock Laws (federal legislation) that banned circulation of and importation through the mails of obscene materials (includes contraceptives). States enacted similar legislation (20 state laws. = physicians could not proscribe or give info. Sup. Ct. invalidated Conn’s law in 1965 (Griswold)
Household size decreased b/c of “domestic feminism” or the determination of women to assert their individuality and household authority by regulating pregnancy and marital sexuality.
§ Connecticut’s law prohibited “use” not just distribution—most stringent type of law. No exclusion for women whose lives would be endangered by a pregnancy. Tried to get rid of it legislatively but couldn’t do it b/c too many catholics in Conn.
Griswold v. Connecticut
Right to privacy includes right for married people to use contraception. Estelle Griswold is the director of planned parenthood—she and doctors are arrested for aiding and abbetting. They argue that the statute violates married patients right to privacy under the 14th Amend b/c it prohibits use—infringes on marital rights b/c it would necessitate police search of marital bedroom.
Multiple meanings of the right to privacy – seclusion, non-disclosure, inaccessibility.
Marriage relationship very important to the decision. If we question that the right to privacy belongs to married people
Privacy is a fundamental right deserving of strict judicial scrutiny. Must be “necessary to a compelling state interest”
Griswold has first mention of “right of privacy.”
Finds privacy based on location: (no longer geographic (bedroom) or marital)
The right to privacy is found in the “penumbras” “formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance.” These guarantees create a “zone of privacy” among the guarantees are:
i. 1st Am.’s right of association;
ii. 3rd Am.’s prohibition against quartering of soldiers during peacetime w/o the owner’s consent;
iii. 4th Am.’s protection against unreasonable searches and seizure;
iv. 5th Am.’s privilege against self-incrimination;
v. 9th Am.’s identification of unenumerated rights.
Eisenstadt v. Baird (1972)
Eisenstadt emphasizes the right of privacy of the individual rather than a marital right. Mass. Law says you can’t give contraceptives to single people. Willism Ba
ding to the dictates of his own conscience,
and generally to enjoy those privileges long recognized at common law as essential
to the orderly pursuit of happiness by free men.
Pierce v. Society of Sisters
State law said all kids had to go to public schools. Private schools were outraged. Court said that the liberty in 14th included a parent’s right to determine where their child would go to school.
B. The Growth of Privacy
Roe v. Wade
The privacy right under the due process clause include the decision to have an abortion
The right to stake in Roe is personal liberty (including the right to terminate) of the 14th amendment. Right to choose comes from 14th.
State has an interest in the fetus starting at a certain point.
Roe reaffirms that the right at stake is fundamental in nature, meaning that it’s a part of the concept of liberty. State can only interfere when it has a compelling interest. State has compelling interest in potential life at viability (3rd trimester). State has interest in women at 2nd trimester.