Fundamental Right To Reproductive Autonomy - Constitutional

The constitution protects unenumearted rights when the rights are fundamental.

Fundamental rights determined by: tradition & history, moral consensus, natural law, originalism

Rights that are fundamental

1. Marriage

2. Procreation

3. Privacy

Under what constitional provisions are these rights protected?

1. Penumbras

2. 9th amendment

3. 14th amendment Due Process & Equal Protection clause

How are these fundamental rights protected?

1. Usually by subjecting non-incidental burdens on these rights to strict scrutiny

Buck v. Bell (1926)– state sterilization program for the feeble-minded

1. Held: Program upheld. The health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives.

2. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia's in order to prevent the nation from "being swamped with incompetence . . . Three generations of imbeciles are enough."

Skinner v. Oklahoma (1941) – law allows for the forced sterilization of “habitual criminals” – those convicted two or more times for crimes of moral turpitude

1. Held: the right to procreate is fundamental; there is no real state interest for the law because there is no showing that criminal traits can be inherited.

2. Since some crimes such as embezzlement, punishable as felonies in Oklahoma, were excluded from the Act's jurisdiction, Justice Douglas reasoned that the law had laid "an unequal hand on those who have committed intrinsically the same quality of offense." Moreover, Douglas viewed procreation as one of the fundamental rights requiring the judiciary's strict scrutiny.

Griswold v. Connecticut (1964) – law prohibiting the use of contraception or abetting the use of contraception

1. Held: Statute unconstitutional. The ban on the use of contraception infringes on the zone of privacy created by several fundamental constitutional guarantees. Including

   1. The first amendment implicit right of association

   2. The third amendment protection from the quartering of troops

   3. The fourth amendment protection against unreasonable searches and seizures and the requirement of probable cause for a warrant

   4. Ninth amendment

   5. Douglas: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations.

2. Concurrence:

   1. Goldberg: the right to privacy is protected under the 9th amendment. Judges must look to the traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental.

   2. Harlan: statute infringes on the due process right of Griswold because the enactment violates basic values “implicit in the concept of ordered liberty.” Judicial restraint requires continual insistence upon respect for federalism and separation of powers.

Eisenstadt v. Baird (1971)– Mass. law allowed married couples, but not single individuals to obtain contraceptives from a doctor to prevent pregnancy. Omfg: Baird gave away Emko Vaginal Foam to a woman following his BU lecture on birth control and over-population.

1. Held: statute violates equal protection because it provides dissimilar treatment of married and unmarried couples and none of the state interests presented is sufficient to justify the classification

   1. “Brennan: 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 fundamentally affecting a person as the decision whether to bear or beget a child.”

Roe v. Wade (1971) – TX law banning abortion except where necessary to save the life of the mother. State interests: to discourage illicit sexual conduct, to protect the mother, to protect prenatal life

1. Held: Blackmun: The right to privacy, whether founded in the Fourteenth Amendment or alternatively the Ninth Amendment protects the woman’s right to choose to terminate her pregnancy

   1. The right is NOT absolute

   2. State can regulate abortions when the state has a compelling interest. State has a compelling interest in the health of the pregnant woman and in the “potentiality of human life.”

2. Trimester framework

   1. Before the end of the 1^st trimester abortions cannot be proscribed. Reason: at this stage, mortality rates from abortions are lower than the mortality rates from carrying a baby to term

   2. After the 1^st trimester, the state has a compelling interest to preserve the health of the mother, so the state can regulate abortions to protect the mother’s health

   3. After viability, the state can proscribe abortion so long as it makes exceptions for the health of the mother; this is when the state interest in protecting potentiality of life becomes compelling

3. Dissent

   1. Rehnquist: the case does not involve the right to privacy. That most states had outlawed abortions is fatal to the contention that the right to abortion is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The framers of the 14th amendment did not intend to create a fundamental right to privacy

Maher v. Roe (1977): Conn. Welfare Dept issue regulatiosn limiting state Medicaid benefits for first trimmest abortions to those that were “medically necessary.” Indigent womam challenged the regulations.

1. Held: govt has no affirmative duty to pay for abortions, even when it did pay for the costs of pregnancy care

2. Powell: Connecticut law placed no obstacles in the pregnant woman's path to an abortion, and that it did not "impinge upon the fundamental right recognized in Roe." The Court noted that there was a distinction between direct state interference with a protected activity and "state encouragement of alternative activity consonant with legislative policy." Holding that financial need alone did not identify a suspect class under the Equal Protection Clause, the Court found that the law was "rationally related" to a legitimate state interest and survived scrutiny under the Fourteenth Amendment.

Akron v. Akron Center for Reproductive Health (1983): requirement that all D&E procedures be performed in hospitals; and ban on all people eunder 15 receiving abortions

1. Held: both regulations are struck down. Powell: certain provisions of the ordinance violated the Constitution because they were clearly intended to direct women away from choosing the abortion option. They were not implemented out of medical necessities.

Thornburgh v. American College of Obstetricians and Gynecologists (1986): informed consent law + dissemination of info concerning the risks of abortion, reporting procedures, the use of certain medical techniques after viability, and the presence of a second physician for post-viability abortions.

1. Held: Struck down. Blackmun: Pennsylvania requirements "wholly subordinate[d] constitutional privacy interests and concerns with maternal health" and were attempts to deter women from making their own choices concerning abortion. The Court held that 1) the "informed consent" and printed materials provisions unduly intruded upon the priva cy of patients and physicians; 2) the reporting and viability determination provisions were designed to identify and deter women from having abortions through the threat of harassment; and 3) the post-viability care and second physician provisions unconstitutionally interfered with the health of the mother by increasing delays and medical risks.

Webster v. Reproductive Health Services (1989): Missouri legislation states: “the life of each human being begins at conception.” Restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother’s life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth week of pregnancy.

1. Held: Rehnquiest: none of the challenged provisions were unconstitutional. Preamble statement okay only because it did not apply in any concrete manner for the purposes of restricting abortions. Second, Due Process clause did not require states to enter into the business of abortion and did not create an affirmative right to governmental aid in the pursuit of constitutional rights. Third, no case/controversy existed in relation to the counseling provisions of the law. Finally, Court upheld the viability testing requirements, arguing that the state’s interest in protecting potential life could come into existence before the point of viability.

2. Rehnquist, White, and Kennedy attacked the trimester framework arguing that states have a compelling interest before viability

3. Scalia argued that Roe v. Wade should be overruled

4. O’Connor wants to revisit Roe

5. Five members of the Court seemed prepared to either overrule or significantly narrow the holding of Roe but emphasized that it was not revisitng the essential portions of the holding in Roe.

Planned Parenthood v. Casey : Pennsylvania Abortion Control Act of 1982. 1) A woman must give informed consent before having an abortion, based on information given to her at least 24 hours before the operation. 2) a minor must either get informed consent from her parents or from a judge. 3) a married woman must get a signed statement from her husband saying he has been notified of her intention to get an abortion.

1. Held: Application of the...