CRS Annotated Constitution

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Whether an independent, discrete concept of privacy, in either of its major aspects, emerges from developing judicial doctrines is largely problematical. There appears to be a tendency to designate[p.1688]as a right of privacy a right or interest which extensions of precedent or applications of logical analysis have led the Court to conclude to protect. Because this protection is now settled to be a “liberty” which the due process clause includes, the analytical validity of denominating the particular right or interest as an element of privacy rather than as an element of “liberty” seems open to question.

Family Relationships.—While the “privacy” basis of autonomy seems to be definitionally based, the Court’s drawing on the line of cases since Meyer and Pierce289 has “established that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”290 Recognition of the protected “liberty” of the familial relationship affords the Court a principled and doctrinal basis of review of governmental regulations that adversely impact upon the ability to enter into the relationship, to maintain it, to terminate it, and to resolve conflicts within the relationship. This liberty, unlike the interest in property which has its source in statutory law, springs from the base of “intrinsic human rights, as they have been understood in ‘this Nation’s history and tradition.”’291 Being of fundamental importance, the familial relationship is ordinarily subject only to regulation that can survive rigorous judicial scrutiny, although “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.”292 Recent decisions cast light in all areas of the family relationship.

Because the right to marry is a fundamental right protected by the due process clause,293 a state may not deny the right to marry to someone who has failed to meet a child support obligation, there being no legitimate state interest compelling enough to justify the prohibition.294 There is a constitutional right to live together as a[p.1689]family,295 one not limited to the nuclear family. Thus, a city ordinance which zoned for single family occupancy and so defined “family” as to bar extended family relationships was found to violate the due process clause as applied to prevent a grandmother from having in her household two grandchildren of different children.296 And the concept of “family” may extend beyond the biological, blood relationship of extended families to the situation of foster families, although the Court has acknowledged that such a claim to constitutionally protected liberty interests raises complex and novel questions.297 In the conflict between natural and foster families, other difficult questions inhere and it may well be that a properly constituted process under state law of determining the best interests of the child will be deferred to.298 On the other hand, the Court has held, the presumption of legitimacy accorded to a child born to a married woman living with her husband is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights.299

The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children’s rights.300

Supplement: [P. 1689, add to text at end of section:]

The Court has, however, imposed limits on the ability of a court to require that children be made available for visitation with grandparents and other third parties. In Troxel v. Granville,8 the Court evaluated a Washington State law which allowed “any person” to petition a court “at any time” to obtain visitation rights whenever visitation “may serve the best interests” of a child. Under this law, a child’s grandparents were awarded more visitation with a child than was desired by the sole surviving parent. A plurality of the Court, noting the “fundamental rights of parents to make decisions concerning the care, custody and control of their children,” 9 reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the best interests of a child.


Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment.—

Supplement: [P. 1690, change heading to:]

Potentially a major development in substantive due process is the formulation of a liberty right of those retarded or handicapped individuals who are involuntarily committed or who voluntarily seek commitment to public institutions. The States pursuant to their parens patriae power have a substantial interest in institutionalizing persons in need of care, both for their own protection and for the protection of others.301 Each individual, on the other hand, has a due process protected interest in freedom from confinement and personal restraint; an interest in reducing the degree of confinement continues even for those individuals who are properly committed.302 Little controversy has attended the gradual accretion of case law, now confirmed by the Supreme Court, that due process guarantees freedom from undue physical restraint and from unsafe conditions of confinement.303 Whether it also guarantees a considerable right to treatment, to “habilitation,”304 is the focus of the cases now being litigated, and while the right has been strongly recognized by a number of influential lower court decisions305 its treatment in the Supreme Court is as yet tentative. Thus, Youngberg v. Romeo recognized a liberty right to “minimally adequate or reasonable training to ensure safety and[p.1691]freedom from undue restraint.”306 While the lower court had passed upon and agreed with plaintiff’s theory of entitlement to “such treatment as will afford a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as [his] capacities permit,”307 the Supreme Court thought that before it plaintiff had reduced his theory to one of “training related to safety and freedom from restraint.”308 But the Court’s concern for federalism, its reluctance to approve judicial activism in supervising institutions, its recognition that budgetary constraints interfered with state provision of services caused it to require the lower federal courts to defer to professional decisionmaking in determining what care was adequate. Professional decisions are presumptively valid and liability can be imposed “only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”309 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures.310

Still other issues await plumbing. The whole area of the rights of committed individuals will likely be explored under a sub[p.1692]stantive and procedural due process analysis.311 Additionally, federal legislation is becoming extensive,312 and state legislative and judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests which the due process clause protects.313

“Right to Die”.—In Cruzan v. Director, Missouri Dep’t of Health,314 the Court upheld Missouri’s requirement that, before nutrition and hydration may be withdrawn from a person in a persistent vegetative state, it must be demonstrated by “clear and convincing evidence” that such action is consistent with the patient’s previously manifested wishes. The Due Process Clause does not require that the state rely on the judgment of the family, the guardian, or “anyone but the patient herself” in making this decision, the Court concluded.315 Thus, in the absence of clear and convincing evidence that the patient herself had expressed an interest not to be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her, the state may refuse to allow withdrawal of nutrition and hydration. “A State is entitled to guard against potential abuses” that can occur if family members do not protect a patient’s best interests, and “may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy, and [instead] simply assert an unqualified interest in the preservation of human life to be weighed against the . . . interests of the individual.”316

The Court’s opinion in Cruzan “assume[d]” that a competent person has a constitutionally protected right to refuse lifesaving hydration and nutrition.317 More important, however, a majority of Justices separately declared that such a liberty interest exists.318 Thus, the Court appears committed to the position that the right[p.1693]to refuse nutrition and hydration is subsumed in the broader right to refuse medical treatment. Also blurred in the Court’s analysis was any distinction between terminally ill patients and those whose condition has stabilized; there was testimony that the patient in Cruzan could be kept “alive” for about 30 years if nutrition and hydration were continued.

Supplement: [P. 1693, add new paragraph at end of section:]

In Washington v. Glucksberg,12 however, the Supreme Court rejected an argument that the Due Process Clause provides a terminally ill individual the right to seek and obtain a physician’s aid in committing suicide. Reviewing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with “utmost care” before breaking new ground in the area of liberty interests.13 The Court pointed out that suicide and assisted suicide have long been disfavored by the American judicial system, and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court rejected the applicability of Cruzan and other liberty interest cases,14 noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia.15


289 Meyer v. Nebraska, 262 U.S. 390 (1923) ; Pierce v. Society of Sisters, 268 U.S. 510 (1928) .
290 Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Continuing the limitation of the right of privacy to family–related activities is Bowers v. Hardwick, 478 U.S. 186 (1986) .
291 Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977) .
292 Zablocki v. Redhail, 434 U.S. 374, 386 (1978) .
293 Loving v. Virginia, 388 U.S. 1, 12 (1967) ; Griswold v. Connecticut, 381 U.S. 479, 486 (1965) ; Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 639–40 (1974) ; Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978) .
294 Zablocki v. Redhail, 434 U.S. 374 (1978) . The majority of the Court deemed the statute to fail under equal protection, whereas Justices Stewart and Powell found the due process clause to be violated. Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47 (1977) .
295 “If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.”’ Smith v. Organization of Foster Families, 431 U.S. 816, 862–63 (1977) (Justice Stewart concurring), cited with approval in Quilloin v. Walcott, 434 U.S. 246, 255 (1978) .
296 Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion). The fifth vote, decisive to the invalidity of the ordinance, was on other grounds. Id. at 513.
297 Smith v. Organization of Foster Families, 431 U.S. 816 (1977) . The natural family, the Court observed, did not have its source in statutory law, whereas the ties that develop between foster parent and foster child have their origins in an arrangement which the State brought about. But some liberty interests do arise from positive law, although the expectations and entitlements are thereby limited as well by state law. And such a liberty interest may not be recognized without derogating from the substantive liberty interests of the natural parents. Thus, the interest of foster parents must be quite limited and attenuated, but Smith does not define what it is. Id. at 842–47.
298 See Quilloin v. Walcott, 434 U.S. 246 (1978) .
299 Michael H. v. Gerald D., 491 U.S. 110 (1989) . There was no opinion of the Court. A majority of Justices (Brennan, Marshall, Blackmun, Stevens, White) was willing to recognize that the biological father has a liberty interest in a relationship with his child, but Justice Stevens voted with the plurality (Scalia, Rehnquist, O’Connor, Kennedy) because he believed that the statute at issue adequately protected that interest.
300 The clearest conflict presented to date raised the issue of giving a veto to parents over their minor children’s right to have an abortion. Planned Parenthood v. Danforth, 428 U.S. 52 (1976) ; Planned Parenthood v. Casey, 112 Ct. 2791 (1992). See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child for treatment of mental illness).
301 These principles have no application to persons not held in custody by the state. DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189 (1989) (no Due Process violation for failure of state to protect an abused child from his parent, even when the social service agency had been notified of possible abuse, and possibility had been substantiated through visits by social worker).
302 Youngberg v. Romeo, 457 U.S. 307, 314–16 (1982) . See Jackson v. Indiana, 406 U.S. 715 (1972) ; O’Connor v. Donaldson, 422 U.S. 563 (1975) ; Vitek v. Jones, 445 U.S. 480, 491–94 (1980) .
303 Youngberg v. Romeo, 457 U.S. 307, 314–316 (1982) . Thus, personal security constitutes a “historic liberty interest” protected substantively by the due process clause. Ingraham v. Wright, 430 U.S. 651, 673 (1977) (liberty interest in being free from undeserved corporal punishment in school); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Justice Powell concurring) (“Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental actions”).
304 “The word ‘habilitation’ is commonly used to refer to programs for the mentally retarded because mental retardation is . . . a learning disability and training impairment rather than an illness. [T]he principal focus of habilitation is upon training and development of needed skills.” Youngberg v. Romeo, 457 U.S. 307, 309 n.1 (1982) (quoting amicus brief for American Psychiatric Association).
305 In Jackson v. Indiana, 406 U.S. 715, 738 (1972) , the Court had said that “due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Reasoning that if commitment is for treatment and betterment of individuals, it must be accompanied by adequate treatment, several lower courts recognized a due process right. E.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala), enforced, 334 Supp. 1341 (1971), supplemented, 334 F. Supp. 373 and 344 F. Supp. 387 (M.D.Ala. 1972), aff’d in part, reserved in part, and remanded, sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other grounds, 432 U.S. 563 (1975) .
306 Youngberg v. Romeo, 457 U.S. 307, 319 (1982) .
307 Id. at 318 n.23.
308 Id. at 317–18. Concurring, Justices Blackmun, Brennan, and O’Connor, argued that due process guaranteed patients at least that training necessary to prevent them from losing the skills they entered the institution with and probably more. Id. at 325. Chief Justice Burger rejected any protected interest in training. Id. at 329. The Court had also avoided a decision on a right to treatment in O’Connor v. Donaldson, 422 U.S. 563, 573 (1975) , vacating and remanding a decision recognizing the right and thus depriving the decision of precedential value. Chief Justice Burger expressly rejected the right there also. Id. at 578. But just four days later the Court denied certiorari to another panel decision from the same circuit relying on its Donaldson decision to establish such a right, leaving the principle alive in that circuit. Burnham v. Department of Public Health, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057 (1975) . See also Allen v. Illinois, 478 U.S. 364, 373 (1986) (dictum that person civilly committed as “sexually dangerous person” might be entitled to protection under the self– incrimination clause if he could show that his confinement “is essentially identical to that imposed upon felons with no need for psychiatric care”).
309 Id. at 323.
310 E.g., Ohlinger v. Watson, 652 F. 2d 775, 779 (9th Cir. 1980); Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Of course, lack of funding will create problems with respect to injunctive relief as well. Cf. New York State Ass’n for Retarded Children v. Carey, 631 F.2d 162, 163 (2d Cir. 1980). It should be noted that the Supreme Court has limited the injunctive powers of the federal courts in similar situations also.

Supplement: [P. 1691, add paragraph to text after n.310:]

The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks,10 the Court upheld a Kansas state law which allowed civil commitment without a showing of “mental illness,” so that a defendant diagnosed as a pedophile could be committed based on his having a “mental abnormality” which made him “likely to engage in acts of sexual violence.” Although the Court minimized the use of this expanded nomenclature,11 the concept of abnormality appears both more encompassing and less defined than the concept of illness. It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other recidivists such as drug offenders.

311 See Developments in the Law—Civil Commitment of the Mentally Ill, 87 L. Rev. 1190 (1974). In Mills v. Rogers, 457 U.S. 291 (1982) , the Court had before it the issue of the due process right of committed mental patients at state hospitals to refuse administration of antipsychotic drugs. An intervening decision of the State’s highest court had measurably strengthened the patients’ rights under both state and federal law and the Court remanded for reconsideration in light of the state court decision. See also Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981).
312 Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. No. 94–103, 89 Stat. 486 , as amended, 42 U.S.C. §§ 6000 et seq., as to which see Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981) ; Mental Health Systems Act, 94 Stat. 1565 , 42 U.S.C. Sec. 9401 et seq.
313 See, e.g., Mills v. Rogers, 457 U.S. 291, 299–300 (1982) . And see infra, pp. 1723–32 (procedural due process).
314 497 U.S. 261 (1990) .
315 Id. at 286.
316 Id. at 281–82.
317 Id. at 279.
318 See 497U.S. at 287 497U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting).

Supplement Footnotes

8 120S. Ct. 2054 (2000).
9 120 S. Ct. at 2060.
10 521 U.S. 346 (1997) .
11 521U.S. at 359 521U.S. at 359. But see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (holding that a State can not hold a person suffering from a personality disorder without clear and convincing proof of a mental illness).
12 521 U.S. 702 (1997) . In the companion case of Vacco v. Quill, 521 U.S. 793 (1997) , the Court also rejected an argument that a State which prohibited assisted suicide but which allowed termination of medical treatment resulting in death unreasonably discriminated against the terminally ill in violation of the Equal Protection Clause of the Fourteenth Amendment.
13 521U.S. at 720 521U.S. at 720.
14 E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty interest in terminating pregnancy).
15 A passing reference by Justice O’Connor in a concurring opinion in Glucksberg and its companion case Vacco v. Quill may, however, portend a liberty interest in seeking pain relief, or “palliative” care. Glucksberg and Vacco 521U.S. at 736–37 521U.S. at 736–37 (Justice O’Connor, concurring).
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