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Family Law
University of Kentucky School of Law
Antognini, Albertina

Family Law Antognini Fall 2017
Private Family Choices
The Right to Privacy
The Roots of Privacy
Meyer v. NB (1923)
The Right of Privacy Means the Right to Be Left Alone
NB had a law that prohibited the teaching of a foreign language until students were at least in the 8th grade
A teacher taught a 10-year-old boy German and was convicted under the law
The law was unconstitutional because it deprived parents/children of “liberty” under the 14th Amendment
Parents have a fundamental right to educate their children as they see fit
The state may have a compelling purpose in fostering an American identity of homogenous people, but the law is not necessary to achieve this purpose
There is no reason to ban foreign language in a time of peace and learning a foreign language at a young age is easier for children
Pierce v, Society of Sisters (1925)
OR passed a law which made public education mandatory for students ages 8-16 (law would essentially shut down private schools)
The Society of Sisters was an OR corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools
The law violates the 14th Amendment because it interferes with protected liberty interests and has no reasonable relationship to any purpose within the competency of the state
A law that dictates where a parent must send their child to school infringes on the fundamental right of parents being able to control the upbringing/education of their children
The state has the power to regulate all schools, but parents and guardians have the right and duty to choose the appropriate preparation for their children
The Birth of Privacy
Griswold v. CT (1965)
CT statute made it illegal for someone to take any kind of contraceptive or to assist someone in preventing contraception
Appellants (Dir. of Planned Parenthood and a licensed physician) gave info, instruction, and medical advice to married couples on how to avoid contraception
The Right of Privacy Belongs to the Married Couple
Both appellants were convicted under these statutes as accessories and they appealed claiming it violated the 14th Amendment
This law violates fundamental rights associated with the sacred husband/wife relationship
Points out how there are peripheral rights associated with rights enumerated in the Constitution
The majority asserted that “zones” of personal privacy are fundamental to the concept of liberty under the protected penumbra of specific guarantees of the Bill of Rights
Notes that the marital relationship is part of the right of privacy and that this law is unnecessarily broad, invading an area of a protected freedom
Other Opinions
Concurrence (Goldberg, Chief, Brennan)
Agrees with the result and that right of privacy in marriage is a fundamental right, but believes that this should be determined using the Ninth Amendment
Thinks this shows Constitution’s authors wanted to include fundamental rights that were not specifically enumerated in Bill of Rights
Concurrence (Harlan)
Agrees with the result and that right of privacy in marriage is a fundamental right,
But thinks that this case can rely solely on the DP Clause of the 14th Amendment
Eisenstadt v. Bair

to satisfy RB review
Bowers should not be overturned
State law prohibiting sodomy might be constitutional if equally applied
When Privacy Rights Conflict
Wives and Husbands
Planned Parenthood v. Casey (1992)
PA law required married women to get a signed notice from their husband before having an abortion
Exceptions to notice requirement: her husband did not impregnate her, husband couldn’t be located, or the pregnancy is the result of spousal assault which the wife reported
The Right of Privacy Belongs to Individual
The notification requirement is unconstitutional because it places an undue burden on married women trying to obtain an abortion
The right of privacy here attaches to the individual, and must be protected from government intrusion
Women, individually, have a right to choose whether or not they will begat a child
(24 hour waiting period under the PA law is ok because it doesn’t bring another person into the mix)
The husband’s interest in the right of the child his wife is carrying does not permit this degree of authority over her
Spousal consent essentially gives the husband ultimate veto power
Spousal notification can also impose an undue burden especially on wives who fear abusive retaliation (which was not covered under the statute)