Substantive Due Process and Privacy: Childbearing and Contraception Flashcards Preview

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Flashcards in Substantive Due Process and Privacy: Childbearing and Contraception Deck (9):

Skinner v. Oklahoma (1942) J. Douglas

Holding: Court rejected OK law that allowed courts to sterilize people convicted for certain crimes, b/c it violated DP clause

Right to have offspring is a fundamental right

This was arbitrary application to some felonies and not others thus violates DP

JACKSON CONCURRENCe, “There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority -- even those who have been guilty of what the majority define as crimes”.


Griswold v. Connecticut (1965) J. Douglas

right to use contraceptives VIA right to privacy Narrow

Holding: Court rejected CT law that prohibited use and distribution of contraceptives as violation of penumbra of rights (1, 3, 4, 5 amendments). Based on right to privacy in the bedroom. Penumbra is like shade, so it’s sort of similar to the idea that the express rights cast long shadows of protection.  Touchstone & common feelings amongst the people.

Think about over or under expansive.  The means do not mesh with the goal.

Right to privacy is fundamental right: “penumbra” of amendments create zones of privacy

Expressly rejected argument that right was protected under DP clause (to avoid substantive DP/Lochner precedent)

Goldberg concurs: 9th A stands on its own as authority to protect non-textual rights [chicken feet]

Harlan concurs: decision can be based on DP clause alone (note: criticisms of case b/c other amendments apply to states through DP clause, so can rest on that alone) Basic values ‘implicit in the concept of ordered liberty’.

White concurs: law did not even meet a rational basis test – regulating use of contraceptives doesn’t impact ban on illicit sexual relationships in any way

Black dissent: no right to privacy mentioned in constitution

→ Different readings: privacy among married couples, relational privacy (for unmarried), privacy for all


Eisenstadt v. Baird (1972) J. Brennan 

scope of privacy extends to unmarried individuals

Holding: Court rejected MA law that prohibited distributing contraceptives to unmarried individuals b/c individuals have a right to privacy and it discriminated against unmarried individuals.

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


Carey v. Population Services International (1977) J. Brennan

right of privacy extends to minors

Holding: Rejected NY law that prohibited selling contraceptives to minors b/c it infringed on individual right


Roe v. Wade (1973) J. Blackmun [7-2]

right to abortion

Holding: Gov’t can’t regulate abortions prior to viability. Must meet strict scrutiny standard b/c fundamental right.

Court rejected TX law that prohibited all abortions except those necessary to save mother’s life

Focused on right to privacy: broad enough to encompass a woman’s decision re her pregnancy

Focused on DP clause, but source could be from many amendments

Forcing pregnancy on women imposes significant physical & psychological burdens

Right is not absolute and must be balanced against other considers

Must apply strict scrutiny b/c abortion is a fundamental right

States interest in protecting prenatal life: protecting maternal health/protecting viable fetus

Thus, court created trimester framework:

1st trimester: can’t prohibit abortions, but can regulate procedures only like other medical procedures

2nd trimester: can’t prohibit abortions, but can regulate procedure in ways reasonably related to maternal health

3rd trimester: gov’t may prohibit except where necessary to preserve health of mom

J. Rehnquist and White dissent: this should’ve been left to legislature, exercise of raw judicial power


Planned Parenthood v. Casey (1992) J. O’Connor, Kennedy & Souter plurality

no more strict scrutiny

Holding: Reaffirmed that states can’t prohibit abortion prior to viability, but overruled trimester distinctions used in Roe and the use of strict scrutiny to evaluate regulations about abortions.

Right is protected b/c of importance of choice, intrusion to force woman to be pregnant against will

New standard: Gov’t regulation of abortions prior to viability allowed unless there is an undue burden on access to abortion.


24-hour waiting period: b/c not unreasonable to ensure important decisions will be more informed & deliberate

Requirement that woman be given information about fetus, and overruled previous cases that held otherwise

Reporting/recording requirements.


Spousal notice requirement

Limited parental consent requirements (b/c of abuse by husbands, but w/ parents, often parental consent is needed for medical procedures anyway)

Stevens and Blackmun concur: would have used strict scrutiny and continued basic framework of Roe b/c factual premises of trimester framework haven’t been undermined

Rehnquist and Scalia concur/dissent: believed Roe should be overrules b/c no textual basis in Const.


What is an undue burden? Casey Framework instead of Roe.

Law is an undue burden if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability

This new standard did not include what level of scrutiny to use, and thus is confusing to apply

Internal tension: state can’t act w/ purpose to create obstacles to abortion but can act w/ purpose to discourage abortion

How many women must be adversely affected by regulation of abortions for it to be considered an undue burden?

Hellerstadt 2016 must have something convincing..


Abortion Funding

Gov’t is not required to subsidize abortions, even if it is paying for childbirth.

Webster v. Reproductive Health Services, Harris v. McRae, Maher v. Roe

Reasoning in these cases:

Existence of constitutional right doesn’t create duty for gov’t to subsidize exercise of right

Gov’t rarely has affirmative const duty to provide benefits or facilitate exercise of rts

Denial of public funding doesn’t alter position of woman – doesn’t place obstacles in her path

Gov’t could choose to encourage childbirth over abortion

Criticisms: this essentially does prevent abortions – and thus should be regarded as violation of right

Abortion is less costly than childbirth