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Right of Privacy

Right of Privacy. Where do we find the right to privacy?. First Amendment – HUAC Cases Third Amendment – Quartering soldiers Fourth Amendment – Search and seizure Fifth Amendment – Miranda Ninth Amendment – Other rights Fourtheenth Amendment – Substantive due process (liberty).

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Right of Privacy

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  1. Right of Privacy

  2. Where do we find the right to privacy? • First Amendment – HUAC Cases • Third Amendment – Quartering soldiers • Fourth Amendment – Search and seizure • Fifth Amendment – Miranda • Ninth Amendment – Other rights • Fourtheenth Amendment – Substantive due process (liberty)

  3. Foundations from the Court • Brandeis dissent in Olmstead v. U.S. (1928) -- Court’s claim of wiretaps wrong. • Mapp v. Ohio (1961): Exclusionary rule. • Griswold v. Connecticut (1965).

  4. Griswold v. Connecticut (1965) • Does the due process clause of the Fourteenth Amendment guarantee a right to privacy? • Yes. 7-2 vote. • The law is invalid because the case concerns a relationship that lies within a zone of privacy created by a number of fundamental constitutional guarantees.

  5. Foundations after Griswold • Katz v. U.S. (1967): Wiretaps unconstitutional. • Stanley v. Georgia (1969): Privacy in one’s home. • Substantive due process has been key (rational basis)!

  6. Standards for Deciding Privacy Cases • Rational Basis – If something is not considered a fundamental right the state only needs to show that it has some interest. • Strict Scrutiny – If something is a fundamental right the state must have a compelling interest.

  7. Roe v. Wade (1973) • Is abortion a fundamental right under the privacy standard set out in Griswold v. Connecticut? • Yes. 7-2 vote. • The right to privacy is broad enough to encompass a woman’s decision whether to terminate a pregnancy. The detriments of not giving a woman this right reach to financial, psychological, and physical harms.

  8. Post Roe • Harris v. McCrae (1980): Medicaid does not have to pay for abortions. • Akron(1983): Court strikes provisions meant to limit access to abortions. O’Connor key in this case. • Thornburgh v. American College of Obstetricians and Gynecologists (1986): Lost Burger. • Webster (1989): Public facilities cannot perform abortions; states may proscribe abortion after viability; Roe is not overturned.

  9. O’Connor and Abortion • Undue burden added to list of possible approaches to abortion. • Anything that places an undue burden on the fundamental right to obtain an abortion is subject to strict scrutiny. • Planned Parenthood v. Casey (1992).

  10. Planned Parenthood v. Casey (1992) • Do the new provisions of the Pennsylvania abortion statute violate the constitutional right to privacy? • The Court announced a judgment in favor of Planned Parenthood of Southern Pa. by Justices O’Connor, Kennedy, and Souter. Some of the provisions were upheld, and others were struck down. • It is imperative to adhere to the essence of Roe’s original decision and we do so today.

  11. Post Casey • Stenberg v. Carhart (2000): Strikes Nebraska late term abortion law because it had no provision to protect a woman’s life. • Ayotte v. Planned Parenthood (2006): Parental notification must include exception for medical emergencies. • Gonzales v. Carhart (2007): Upholds federal ban on late term abortions. Court argues for an “as applied” standard.

  12. Private Sexual Activity • Bowers (1940): Court will not find new fundamental rights in the Constitution. • Lawrence (2003): Court reverses its Bowers decision (this does not happen often).

  13. Lawrence v. Texas (2003) • Does a law that criminalizes homosexual activity violate the Fourteenth Amendment equal protection clause and a person’s fundamental liberty in the due process clause of the amendment? • Yes. 6-3 vote. • Bowers was not correct when it was decided, and it is not correct today. It ought not remain binding precedent, and it is now overruled.

  14. The Right to Die • In re Quinlan (1976): Guardians can make the decision to remove respirator. • Cruzan v. Missouri Dept. of Health (1990).

  15. Cruzan v. Missouri Department of Health (1990) • Does a citizen have a right to require a hospital to withdraw life-sustaining treatment when someone is a persistent vegetative state? • No. 5-4 vote. • The clear and convincing evidence standard is constitutionally permissible. Here we cannot say that the Missouri Supreme Court committed constitutional error in reaching the conclusion that Cruzan’s statements are not sufficient to meet this standard.

  16. Right to Die after Cruzan • Washington v. Glucksberg (1997): States may ban assisted suicide. • Gonzales v. Oregon (2006): The Controlled Substances Act does not control doctor’s ability to dispense a lethal dose of drugs to assist in suicide.

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