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