CRS Annotated Constitution
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Abortion.—Laws limiting or prohibiting abortions in practically all the States, the District of Columbia, and the territories were invalidated by a ruling recognizing a right of personal privacy protected by the due process clause that included a qualified right of a woman to determine whether or not to bear a child. On the basis of its analysis of the competing individual rights and state interests, the Court in Roe v. Wade201 discerned a three–stage balancing of rights and interests extending over the full nine–month term of pregnancy.
“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
“(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
“(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses,[p.1670]regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”202
A lengthy history of the medical and legal views of abortion apparently convinced the Court that the prohibition of abortion lacked the solid foundation necessary to preserve such prohibitions from constitutional review.203 Similarly, a review of the concept of “person” as protected in the due process clause and in other provisions of the Constitution established to the Court’s satisfaction that the word “person” did not include the unborn, and therefore that the unborn lacked federal constitutional protection.204 Without treating the question in more than summary fashion, the Court announced that “a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist in the Constitution” and that it is “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.”205 “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”206 Moreover, this right of privacy is “fundamental” and, drawing upon the strict standard of review in equal protection litigation, the Court held that the due process clause required that the regulations limiting this fundamental right may be justified only by a “compelling state interest” and must be narrowly drawn to express only the legitimate state interests at stake.207 Assessing the possible interests of the States, the Court rejected as unsupported in the record and ill–served by the laws in question justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions. The state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue when life begins. Two valid state interests were recognized, however. “[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.”’208[p.1671]
This approach led to the three–stage concept quoted above. Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother’s womb, the State has no “compelling interest” in the first trimester and “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”209 In the intermediate trimester, the danger to the woman increases and the State may therefore regulate the abortion procedure “to the extent that the regulation reasonably relates to the preservation and protection of maternal health,” but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded.210 “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”211
In a companion case, the Court struck down three procedural provisions of a permissive state abortion statute.212 These required that the abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician’s judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the State’s interest in maternal health because they were not reasonably related to that interest.213 And a residency provision was struck down as violating the privileges and immunities clause.214 But a clause making the performance of an abortion a crime except when it is based upon the doctor’s “best clinical judgment that an abortion is necessary” was upheld against vagueness attack and was further held to benefit women seeking[p.1672]abortions inasmuch as the doctor could utilize his best clinical judgment in light of all the attendant circumstances.215
These decisions were reaffirmed and extended when the Court was faced with a restrictive state statute enacted after Roe making access to abortions contingent upon spousal or parental consent and imposing restraints upon methods.216 Striking down all the substantial limitations, the Court held (1) that the spousal consent provision was an attempt by the State to delegate a veto power over the decision of the woman and her doctor that the State itself could not exercise,217 (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy,218 and (3) that a criminal pro[p.1673]vision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe.219 Sustained were provisions that required the woman’s written consent to an abortion with assurances that it is informed and freely given, and provisions mandating reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. A provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional since in the absence of another comparably safe technique it did not qualify as a reasonble protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.220
In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing “a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure.”221 A state may, however, require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not “depart from accepted medical practice.”222 Various “informed consent” requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman’s decision;223 while the state has a legitimate in[p.1674]terest in ensuring that the woman’s consent is informed, the Court explained, it may not demand of the physician “a recitation of an inflexible list of information” unrelated to the particular patient’s health, and, for that matter, may not demand that the physician rather than some other qualified person render the counseling.224 The Court also invalidated a 24–hour waiting period following a woman’s written, informed consent.225 On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, since the same requirements were imposed for in– hospital abortions and for almost all other in–hospital surgery.226 Also, the Court upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus.227
The Court refused to extend Roe to the area of public funding to pay for abortions for the pregnant indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose.228 Due process, the Court held, does not obligate the States to pay the pregnancy–related medical expenses of indigent women, even though both abortion and the right to bear the child to birth are “fundamental” rights.229 But the more critical question was the equal protection restraint imposed when government does provide public funds for medical care to indigents; may it accord differential treatment to abortion and childbirth and prefer the latter? The States may do so, the Court continued, because it is rationally related to a lawful purpose to encourage normal childbirth. The use of the rational basis test required a rejection of the compelling state interest test in the following manner. First, the more severe test was not activated by a classification impacting on a suspect class, neither wealth nor indigency being such a class. Second, and most significant for abortion adjudication, the Court held that state refusal to pay for abortions did not impinge upon a fundamental right. Prior state restrictions which had been invalidated, the Court continued, had created absolute obstacles to the[p.1675]obtaining of an abortion. While a state–created obstacle need not be absolute to be impermissible, it must at a minimum “unduly burden” the right to terminate a pregnancy. To allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining an abortion nor does it unduly burden the right. The condition—indigency—that is the barrier to getting an abortion was not created by government nor does the State add to the burden that exists already. “An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the services she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.”230 Applying the same principles, the Court held that a municipal hospital could constitutionally provide hospital services for indigent women for childbirth but deny services for abortion.231
In 1983 the Court expressly reaffirmed Roe v. Wade,232 and continued to apply its principles to a variety of state statutes attempting to regulate the circumstances of abortions. The Court’s 1989 decision in Webster v. Reproductive Health Services,233 however, signalled a break with the past even though Roe v. Wade was not overruled.
Webster upheld two aspects of Missouri’s statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational[p.1676]age of 20 weeks, make an actual viability determination.234 In two 1990 cases the Court then upheld parental notification requirements. Ohio’s requirement that one parent be notified of a minor’s intent to obtain an abortion, or that the minor use a judicial bypass procedure to obtain the approval of a juvenile court, was approved.235 And, while the Court ruled that Minnesota’s requirement that both parents be notified was invalid standing alone, the statute was saved by a judicial bypass alternative.236
The Webster Court was split in its approach to Missouri’s viability determination requirement, and in its approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach would water down Roe by applying a less stringent standard of review. The viability testing requirement is valid, the plurality contended, because it “permissibly furthers the State’s interest in protecting potential human life.”237 Justice O’Connor concurred in the result because in her view the requirement did not impose “an undue burden” on a woman’s right to an abortion, and Justice Scalia concurred in the result while urging that Roe be overruled outright. That Webster may have changed the focus of debate was illustrated by the Court’s approach to the parental notification issue. A Court majority in Hodgson invalidated Minnesota’s alternative procedure requiring notification of both parents without judicial bypass, not because it burdened a fundamental right, but because it did “not reasonably further any legitimate state interest.”238
Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life from the point of viability, and hence did not challenge Roe’s trimester framework.239 Nonetheless, a majority of Justices appeared[p.1677]ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest “should come into existence only at the point of viability;”240 Justice O’Connor repeated her view that the trimester approach is “problematic;”241 and, as mentioned, Justice Scalia would do away with Roe altogether.
Three years later the Court, invoking principles of stare decisis, reaffirmed Roe’s “essential holding,” but restated that holding in terms of undue burden and also abandoned Roe’s reliance on the trimester approach. Roe’s “essential holding,” said the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey,242 has three parts. “First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”
This restatement of Roe’s essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability still marked “the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,”243 but less burdensome regulations could be applied before viability. “What is at stake,” the three–Justice plurality asserted, “is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s ex[p.1678]ercise of the right to choose.” Thus, unless an undue burden is imposed, states may adopt measures “designed to persuade [a woman] to choose childbirth over abortion.”244
Application of these principles led the Court to uphold several aspects of Pennslyvania’s abortion control law, in the process overruling precedent, but to invalidate what was arguably the most restrictive provision. Four challenged provisions of the law were upheld: a definition of “medical emergency” controlling exemptions from the Act’s other limitations; recordkeeping and reporting requirements imposed on facilities that perform abortions; an informed consent and 24–hour waiting period requirement; and a parental consent requirment, with possibility for judicial bypass, applicable to minors. Invalidated as an undue burden on a woman’s right to an abortion was a spousal notification requirement.
It was a new alignment of Justices that restated and preserved Roe. Joining Justice O’Connor in a jointly authored opinion adopting and applying Justice O’Connor’s “undue burden” analysis were Justices Kennedy and Souter. Justices Blackmun and Stevens joined parts of the plurality opinion, but dissented from other parts. Justice Stevens would not have abandoned trimester analysis, and would have invalidated the 24–hour waiting period and aspects of the informed consent requirement. Justice Blackmun, author of the Court’s opinion in Roe, asserted that “the right to reproductive choice is entitled to the full protection afforded by this Court before Webster,”245 and would have invalidated all of the challenged provisions. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, would have overruled Roe and upheld all challenged aspects of the Pennsylvania law.
Overruled in Casey were earlier decisions that had struck down informed consent and 24–hour waiting periods.246 Given the state’s legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying “undue burden” analysis, the three–Justice plurality found these requirements permissible. Requiring informed consent for medical procedures is both commonplace and reasonable, and, in the absence of any evidence of burden, the state could require that information relevant to informed consent be provided by a physician rather than an assistant. The 24–hour waiting period was approved both in theory (it[p.1679]being reasonable to assume “that important decisions will be more informed and deliberate if they follow some period of reflection”) and in practice (in spite of “troubling” findings of increased burdens on poorer women who must travel significant distances to obtain abortions, and on all women who must twice rather than once brave harassment by anti–abortion protesters).247 The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.
On the other hand, the Court248 distinguished Pennsylvania’s spousal notification provision as constituting an undue burden on a woman’s right to choose an abortion. “A State may not give to a man the kind of dominion over his wife that parents exercise over their children” (and that men exercised over their wives at common law).249 Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e.g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife’s liberty interest as an individual to decide whether to bear a child.
Supplement: [P. 1679, add to text at end of section:]
The passage of various state laws restricting so– called “partial birth abortions” gave observers an opportunity to see if the “undue burden” standard was in fact likely to lead to a major retrenchment in abortion regulation. In Stenberg v. Carhart,5 the Court reviewed a Nebraska statute which forbade “partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery.” The Court noted that the prohibition appeared to apply to abortions performed throughout a pregnancy, and that the lone exception was for an abortion necessary to preserve the life of the mother.6 Thus the statute brought into question both the distinction maintained in Casey between pre–viability and post–viability abortions, and the oft–repeated language from Roe, which provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or health of a pregnant woman.7 The Court, however, reaffirmed these central tenets of its abortion decisions, striking down the Nebraska law because its possible application to pre–viability abortions was too broad and the exception for threats to the life of the mother was too narrow.
Privacy: Its Constitutional Dimensions.—Roe v. Wade and its progeny could have had significant effect outside the abortion area in the general area of personal liberties, inasmuch as the revitalization of substantive due process in the noneconomic regulation area, overlaid with the compelling state interest test, could call into question many governmental restraints upon the person. Roe’s emphasis upon the privacy rationale seemed to presage an active judicial role in defining and protecting the interests of persons “to be let alone.” Those developments have not occurred, however, and the cases reflect the intention of the Court to curb the expansion of any doctrinal ramifications flowing beyond the abortion cases.
Privacy has in a number of cases been identified as a core value of the Bill of Rights,250 but it was not until Griswold v. Connecticut251 that an independent right of privacy, derived from the confluence of several provisions of the Bill of Rights or discovered in the “penumbras” of these provisions, was expounded by the[p.1680]Court and actually used to strike down a governmental restraint. The abortion cases extended Griswold many degrees in several respects. First, the cases removed any lingering possibility that the right is a marital one that depends upon that relationship.252 Second, the right of privacy was denominated a liberty which found its source and its protection in the due process clause of the Fourteenth Amendment.253 Third, by designating the right as a “fundamental” right, the Court required a governmental restraint to be justified by a “compelling state interest.” Necessary to assessment of the effect of this development is a close analysis of the limits of the right thus protected as well as of its contents.
“The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 (1937) , are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967) ; procreation, Skinner v. Oklahoma, 316 U.S. 535, 541– 42 (1942); contraception, Eisenstadt v. Baird, 405U.S. at 453–54 405U.S. at 453–54; id. at 460, 463–65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ; and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) , Meyer v. Nebraska, supra.”254 In the pornography cases decided later in the same Term, the Court denied the existence of any privacy right of customers to view unprotected material in commercial establishments, repeating the above descriptive language from Roe, and saying further: “the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved.”255[p.1681]
What is apparent from the Court’s approach in these cases is that its concept of privacy is descriptive rather than analytical, making difficult an assessment of the potential of the doctrine. Privacy as a concept appears to encompass at least two different but related aspects. First, it relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Second, it relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences.256 Governmental commands to do or not to do something may well implicate one or the other or both of these aspects, and judicial decision about the validity of such governmental commands must necessarily be informed by use of an analytical framework balancing the governmental interests against the individual interests in maintaining freedom in one or both aspects of privacy. That framework cannot now be constructed on the basis of the Court’s decided cases.
Griswold v. Connecticut,257 voiding a state statute proscribing the use of contraceptives, seems primarily to be based upon a judicial concept of privacy flowing from the first aspect of privacy described above. That is, the predominant concern flowing through the several opinions is the threat of forced disclosure about the private and intimate lives of persons through the pervasive surveillance and investigative efforts that would be needed to enforce such a law; moreover, the concern was not limited to the outward pressures upon the confines of such provisions as the Fourth Amendment’s search and seizure clause, but extended to techniques that would have been within the range of permissible investigation. Subsequent cases, however, have returned to Fourth and Fifth Amendment principles to regulate official invasions of privacy.258
For example, in United States v. Miller,259 the Court evaluated in Fourth Amendment terms the right of privacy of depositors in restricting Government access to their cancelled checks maintained by the bank as required by the Bank Secrecy Act. The cancelled checks, the Court held, were business records of the bank in which the depositors had no expectation of privacy and therefore no[p.1682]Fourth Amendment standing to challenge government legal process directed to the bank, and this status was unchanged by the fact that the banks kept the records under government mandate in the first place. And in Fisher v. United States,260 the Court denied that the Fifth Amendment’s self–incrimination clause operated in any way to prevent the IRS from obtaining by summons income tax records prepared by accountants and in the hands of either the taxpayer or his attorney, no matter how incriminating, because the Amendment only protects against compelled testimonial self–incrimination. “[T]he Court has never suggested that every invasion of privacy violates the privilege. Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self– incrimination of some sort.”261 Further, “[w]e cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy—a word not mentioned in its text and a concept directly addressed in the Fourth Amendment.”262 The First Amendment itself affords some limitation upon governmental acquisition of information but here again the gravamen is a violation of speech or association or the like concomitant with exposure of personal information, and not exposure itself.263
A cryptic opinion in Whalen v. Roe264 may indicate the Court’s willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs that could be abused, and the centralized recordkeeping through computers of all such prescriptions identifying the patients. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to “pose a sufficiently[p.1683]grievous threat to either interest to establish a constitutional violation.”265
Not the method of enforcement but the fact of enforcement was the issue in Roe and Doe. That is, the power of the State to deny women all access to abortions, the power to proscribe effectuation of the will and desire of women to terminate pregnancy, was at issue. Because the Court determined that the will and desire constituted a protected “liberty,” the State was required to justify its proscription by a compelling interest. Once the question of the personhood of the fetus was resolved, the Court confronted in effect only two asserted state interests. Protecting the health of the mother was recognized as a valid interest, the Court thereby departing from a laissez faire “free will” approach to individual autonomy. A state interest in morality was mentioned by the Court, not because the State had raised it, but simply to defer deciding it; however, the noted morality issue involved not the morality of abortion, but instead the promotion of sexual morality through making abortion unavailable.266
Stanley v. Georgia,267 holding that government may not make private possession of obscene materials for private use a crime, approached a judicial recognition of the autonomy aspect of privacy. True it is that the possession there was in Stanley’s home, a fact heavily relied on by the Court, but the police had lawfully invaded his privacy upon the authority of a valid warrant and a subsidiary Fourth Amendment issue that was available for decision was passed over in favor of a broader resolution. Inasmuch as the materials were obscene, they were outside the scope of First Amendment protection. But the Court premised its decision upon one’s protected right to receive what information and ideas he wished and upon one’s protected “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s[p.1684]privacy.”268 These rights were held superior to the interests Georgia asserted to override them. That is, first, the State was held to have no authority to protect an individual’s mind from the effects of obscenity, to promote the moral content of one’s thoughts. Second, the State’s assertion that exposure to obscenity may lead to deviant sexual behavior was rejected on the basis of a lack of empirical support and, more important, on the basis that less intrusive deterrents were available. Thus, a right to be free of governmental regulation in this area was clearly recognized.
Stanley was quickly restricted to its facts, to possession of pornography in the home.269 But in its important reconsideration of and reaffirmation of governmental interests in the control of pornography, the Court went beyond this restriction and recognized governmental interests that included the promotion of public morality, protection of the individual’s psychological health, and improving the quality of life. “It is argued that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.” Furthermore, continued the Court: “Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.’ The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States’ ‘right . . . to maintain a decent society.”’270[p.1685]
Stanley was further distinguished in Bowers v. Hardwick as being “firmly grounded in the First Amendment.”271 Thus, the Court held in Bowers, there is no protected right to engage in homosexual sodomy in the privacy of the home, and Stanley did not implicitly create protection for “voluntary sexual conduct [in the home] between consenting adults.”272
Evidently, then, the fundamental right of privacy that is protected by the due process clause is one functionally related to “family, marriage, motherhood, procreation, and child rearing.”273 Even so limited, the concept can have numerous significant aspects occasioning major constitutional decisions. Thus, in Carey v. Population Services International,274 the Griswold–Baird line of cases was significantly extended so as to make the “decision whether or not to beget or bear a child” a “constitutionally protected right of privacy” interest that government may not forbid or burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests. This “constitutional protection of individual autonomy in matters of childbearing” led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.275 The limitation of the number of outlets to adults “imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so” and was unjustified by any interest put forward by the State. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring whether the restrictions serve “any significant state interest . . . that is not present in the case of an adult.” This test is “apparently less rigorous” than the test used with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The at[p.1686]tempted justification for the ban was rejected. Doubting the permissibility of a ban on access to contraceptives to deter minors’ sexual activity, the Court even more doubted, because the State presented no evidence, that limiting access would deter minors from engaging in sexual activity.276
In Bowers v. Hardwick,277 the Court by 5–4 vote roundly rejected the suggestion that the privacy cases protecting “family, marriage, or procreation” extend any protection for private consensual homosexual sodomy,278 and also rejected the more comprehensive claim that the cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”279 Moreover, the Court refused to create any such fundamental right. Justice White’s opinion for the Court in Hardwick sounded the same opposition to “announcing rights not readily identifiable in the Constitution’s text” that underlay his dissents in the abortion cases.280 In addition, the Court concluded that rationales relied upon in the earlier privacy cases do not extend “a fundamental right to homosexuals to engage in acts of consensual sodomy.”281 Heavy reliance was placed on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibit the practices.282 The privacy of the home does not immunize all behavior from state regulation, and the Court was “unwilling to start down [the] road” of im[p.1687]munizing “voluntary sexual conduct between consenting adults.”283 Justice Blackmun’s dissent was critical of the Court’s phrasing of the issue as one of homosexual sodomy,284 and asserted that the basic issue was the individual’s privacy right “to be let alone.” The privacy cases are not limited to protection of the family and the right to procreation, he asserted, but instead stand for the broader principle of individual autonomy and choice in matters of sexual intimacy.285
Similarly, the extent to which governmental regulation of the sexual activities of minors is subject to constitutional scrutiny is of great and continuing importance.286 Analysis of these questions is hampered because the Court has not told us what about the particular facets of human relationships—marriage, family, procreation—gives rise to a protected liberty and what does not, and how indeed these factors vary significantly enough from other human relationships to result in differing constitutional treatment. The Court’s observation in the abortion cases “that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,” occasioning justification by a “compelling” interest,287 little elucidates the answers inasmuch as in the same Term the Court significantly restricted its equal protection doctrine of “fundamental” interests—“compelling” interest justification by holding that the “key” to discovering whether an interest or a relationship is a “fundamental” one is whether it is “explicitly or implicitly guaranteed by the Constitution.”288
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