Fundamental Rights (Noneconomic Substantive Due Process)

A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. The concept has come to include disparate lines of cases, and various labels have been applied to the rights protected, including “fundamental rights,” “privacy rights,” “liberty interests” and “incorporated rights.” The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law,535 serves as the basis for some of the most significant constitutional holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the “incorporation” of fundamental rights.536 Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion,537 remain controversial.

Determining Noneconomic Substantive Due Process Rights.

More so than other areas of law, noneconomic substan-tive due process seems to have started with few fixed precepts. Were the rights being protected property rights (and thus really protected by economic due process) or were they individual liberties? What standard of review needed to be applied? What were the parameters of such rights once identified? For instance, did a right of “privacy” relate to protecting physical spaces such as one’s home, or was it related to the issue of autonomy to make private, intimate decisions? Once a right was identified, often using abstract labels, how far could such an abstraction be extended? Did protecting the “privacy” of the decisions whether to have a family also include the right to make decisions regarding sexual intimacy? Although many of these issues have been resolved, others remain.

One of the earliest formulations of noneconomic substantive due process was the right to privacy. This right was first proposed by Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article538 as a unifying theme to various common law protections of the “right to be left alone,” including the developing laws of nuisance, libel, search and seizure, and copyright. According to the authors, “the right to life has come to mean the right to enjoy life,—the right to be let alone . . . . This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.”

The concepts put forth in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice Brandeis regarding the Fourth Amendment.539 Then, in the 1920s, at the heyday of economic substantive due process, the Court ruled in two cases that, although nominally involving the protection of property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska,540 the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade. Two years later, in Pierce v. Society of Sisters,541 the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties.542 Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of “liberty.”

“Without doubt,” Justice McReynolds said in Meyer, liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”543 The right of the parents to have their children instructed in a foreign language was “within the liberty of the [Fourteenth] Amendment.”544 Meyer was then relied on in Pierce to assert that the statute there “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”545

Although the Supreme Court continued to define noneconomic liberty broadly in dicta,546 this new concept was to have little impact for decades.547 Finally, in 1967, in Loving v. Virginia,548 the Court held that a statute prohibiting interracial marriage denied substantive due process. Marriage was termed “one of the ‘basic civil rights of man’ ” and a “fundamental freedom.” “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and the classification of marriage rights on a racial basis was “unsupportable.” Further development of this line of cases was slowed by the expanded application of the Bill of Rights to the states, which afforded the Court an alternative ground to void state policies.549

Despite the Court’s increasing willingness to overturn state legislation, the basis and standard of review that the Court would use to review infringements on “fundamental freedoms” were not always clear. In Poe v. Ullman,550 for instance, the Court dismissed as non-justiciable a suit challenging a Connecticut statute banning the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness—the same lenient standard he would have applied to test economic legislation.551 Applying a lengthy analysis, Justice Harlan concluded that the statute in question infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court in Griswold v. Connecticut,552 a majority of the Justices rejected reliance on substantive due process553 and instead decided it on another basis—that the statute was an invasion of privacy, which was a non-textual “penumbral” ri554 ght protected by a matrix of constitutional provisions. Not only was this right to be protected again governmental intrusion, but there was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom.

The apparent lack of deference to state interests in Griswold was borne out in the early abortion cases, discussed in detail below, which required the showing of a “compelling state interest” to interfere with a woman’s right to terminate a pregnancy.555 Yet, in other contexts, the Court appears to have continued to use a “reasonableness” standard.556 More recently, the Court has complicated the issue further (again in the abortion context) by the addition of yet another standard, “undue burden.”557

A further problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike.558 However, in Bowers v. Hardwick,559 the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.560 Then, in Lawrence v. Texas,561 the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.

More broadly, in Washington v. Glucksberg, the Court, in an effort to guide and “restrain” a court’s determination of the scope of substantive due process rights, held that the concept of “liberty” protected under the Due Process Clause should first be understood to protect only those rights that are “deeply rooted in this Nation’s history and tradition.”562 Moreover, the Court in Glucksberg required a “careful description” of fundamental rights that would be grounded in specific historical practices and traditions that serve as “crucial guideposts for responsible decisionmaking.”563 However, the Court, in Obergefell v. Hodges largely departed from Glucksberg’s formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex.564 Instead, the Obergefell Court recognized that fundamental rights do not “come from ancient sources alone” and instead must be viewed in light of evolving social norms and in a “comprehensive” manner.565 For the Obergefell Court, the two-part test relied on in Glucksberg—relying on history as a central guide for constitutional liberty protections and requiring a “careful description” of the right in question—was “inconsistent” with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as “received practices could serve as their own continued justification and new groups could not invoke rights once denied.”566

Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.567 While recognizing the protection traditionally afforded a father, Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i.e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection, arguing that courts should limit consideration to “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”568 Dissenting Justice Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should “ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.’ ”569


In Roe v. Wade,570 the Court established a right of personal privacy protected by the Due Process Clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.571 Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection.572 Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy”573 and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”574

It was also significant that the Court held this right of privacy to be “fundamental” and, drawing upon the strict standard of review found in equal protection litigation, held that the Due Process Clause required that any limits on this right be justified only by a “compelling state interest” and be narrowly drawn to express only the legitimate state interests at stake.575 Assessing the possible interests of the states, the Court rejected justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions as unsupported in the record and ill-served by the laws in question. Further, 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 of when life begins. Two valid state interests were, however, recognized. “[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.’ ”576

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 Court found that 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.”577 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.578 “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.”579

Thus, the Court concluded that “(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, 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.”

Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions.580 These regulations required that an 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.581 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 abortions on the grounds that the doctor could use his best clinical judgment in light of all the attendant circumstances.582

After Roe, various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion.583 The Court, however, held that (1) requiring spousal consent 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,584 (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,585 and (3) that a criminal provision 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.586 The Court sustained provisions that required the woman’s written consent to an abortion with assurances that it is informed and freely given, and the Court also upheld mandatory reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.587

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.”588 The Court held, however, that a state may require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not “depart from accepted medical practice.”589 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.590 The Court also invalidated a 24-
hour waiting period following a woman’s written, informed consent.591

On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery.592 The Court also 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.593 Further, the Court refused to extend Roe to require states to pay for abortions for the indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose.594

The equal protection discussion in the public funding case bears closer examination because of its significance for later cases. The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to childbirth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion—indigency— was not created or exacerbated by the government.

In reaching this finding the Court held that, 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. And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right.595 What is interesting about this holding is that the “undue burden” standard was to take on new significance when the Court began raising questions about the scope and even the legitimacy of Roe.

Although the Court expressly reaffirmed Roe v. Wade in 1983,596 its 1989 decision in Webster v. Reproductive Health Services597 signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri 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 age of 20 weeks, make an actual viability determination.598 This retrenchment was also apparent in two 1990 cases in which the Court upheld both one-parent and two-parent notification requirements.599

Webster, however, exposed a split in the Court’s 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 sought to water down Roe by applying a less stringent standard of review. For instance, the plurality found the viability testing requirement valid because it “permissibly furthers the State’s interest in protecting potential human life.”600 Justice O’Connor, however, concurred in the result based on her view that the requirement did not impose “an undue burden” on a woman’s right to an abortion, while Justice Scalia’s concurrence urged that Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did “not reasonably further any legitimate state interest.”601

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 after viability, and hence did not challenge Roe’s ‘trimester framework.602 Nonetheless, a majority of Justices appeared 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;”603 Justice O’Connor repeated her view that the trimester approach is “problematic;”604 and, as mentioned, Justice Scalia would have done away with Roe altogether.

Three years later, however, the Court invoked principles of stare decisis to reaffirm Roe’s “essential holding,” although it had by now abandoned the trimester approach and adopted Justice O’Connor’s “undue burden” test and Roe’s “essential holding.”605 According to the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey,606 the right to abortion 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, however, 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,”607 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 exercise 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.”608

Casey did, however, overturn earlier decisions striking down informed consent and 24-hour waiting periods.609 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.610 After 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 Court611 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).612 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 to decide whether to bear a child.

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 curtailment of the right to obtain an abortion. In Stenberg v. Carhart,613 the Court reviewed a Nebraska statute that forbade “partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery.” Although the state argued that the statute was directed only at an infrequently used procedure referred to as an “intact dilation and excavation,” the Court found that the statute could be interpreted to include the far more common procedure of “dilation and excavation.”614 The Court also noted that the prohibition appeared to apply to abortions performed by these procedures throughout a pregnancy, including before viability of the fetus, and that the sole exception in the statute was to allow an abortion that was necessary to preserve the life of the mother.615 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 that provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or the health of a pregnant woman.616 The Court, however, reaffirmed the central tenets of its previous 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.617

Only seven years later, however, the Supreme Court decided Gonzales v. Carhart,618 which, although not formally overruling Stenberg, appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales, the Court, by a 5–4 vote,619 upheld a federal criminal statute that prohibited an overt act to “kill” a fetus where it had been intentionally “deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.”620 The Court distinguished this federal statute from the Nebraska statute that it had struck down in Stenberg, holding that the federal statute applied only to the intentional performance of the less-common “intact dilation and excavation.” The Court found that the federal statute was not unconstitutionally vague because it provided “anatomical landmarks” that provided doctors with a reasonable opportunity to know what conduct it prohibited.621 Further, the scienter requirement (that delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns.622

In a departure from the reasoning of Stenberg, the Court held that the failure of the federal statute to provide a health exception623 was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. Noting that the Court has given “state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” the Court held that, at least in the context of a facial challenge, such an exception was not needed where “[t]here is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.”624 The Court did, however, leave open the possibility that as-applied challenges could still be made in individual cases.625

As in Stenberg, the prohibition considered in Gonzales extended to the performance of an abortion before the fetus was viable, thus directly raising the question of whether the statute imposed an “undue burden” on the right to obtain an abortion. Unlike the statute in Stenberg, however, the ban in Gonzales was limited to the far less common “intact dilation and excavation” procedure, and consequently did not impose the same burden as the Nebraska statute. The Court also found that there was a “rational basis” for the limitation, including governmental interests in the expression of “respect for the dignity of human life,” “protecting the integrity and ethics of the medical profession,” and the creation of a “dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.”626

The Court revisited the question of whether particular restrictions place a “substantial obstacle” in the path of women seeking a pre-viability abortion and constitute an “undue burden” on abortion access in its 2016 decision in Whole Woman’s Health v. Hellerstedt.627 At issue in Whole Woman’s Health was a Texas law that required (1) physicians performing or inducing abortions to have active admitting privileges at a hospital located not more than thirty miles from the facility; and (2) the facility itself to meet the minimum standards for ambulatory surgical centers under Texas law.628 Texas asserted that these requirements served various purposes related to women’s health and the safety of abortion procedures, including ensuring that women have easy access to a hospital should complications arise during an abortion procedure and that abortion facilities meet heightened health and safety standards.629

In reviewing Texas’s law, the Whole Woman’s Health Court began by clarifying the underlying “undue burden” standard established in Casey. First, the Court noted that the relevant standard from Casey requires that courts engage in a balancing test to determine whether a law amounts to an unconstitutional restriction on abortion access by considering the “burdens a law imposes on abortion access together with the benefits those laws confer.”630 As a consequence, the Whole Woman’s Health articulation of the undue burden standard necessarily requires that courts “consider the existence or nonexistence of medical benefits” when considering whether a regulation constitutes an undue burden.631 In such a consideration, a reviewing court, when evaluating an abortion regulation purporting to protect woman’s health, may need to closely scrutinize (1) the relative value of the protections afforded under the new law when compared to those prior to enactment632 and (2) health regulations with respect to comparable medical procedures.633 Second, the Whole Woman’s Health decision rejected the argument that judicial scrutiny of abortion regulations was akin to rational basis review, concluding that courts should not defer to legislatures when resolving questions of medical uncertainty that arise with respect to abortion regulations.634 Instead, the Court found that reviewing courts are permitted to place “considerable weight upon evidence and argument presented in judicial proceedings” when evaluating legislation under the undue burden standard, notwithstanding contrary conclusions by the legislature.635

Applying these standards, the Whole Woman’s Health Court viewed the alleged benefits of the Texas requirements as inadequate to justify the challenged provisions under the precedent of Casey, given both the burdens they imposed upon women’s access to abortion and the benefits provided.636 Specifically as to the admitting privileges requirement, the Court determined that nothing in the underlying record showed that this requirement “advanced Texas’s legitimate interest in protecting women’s health” in any significant way as compared to Texas’s previous requirement that abortion clinics have a “working arrangement” with a doctor with admitting privileges.637 In particular, the Court rejected the argument that the admitting privileges requirements were justified to provide an “extra layer” of protection against abusive and unsafe abortion facilities, as the Court concluded that “[d]etermined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”638 On the contrary, in the Court’s view, the evidentiary record suggested that the admitting-privileges requirement placed a substantial obstacle in the path of women’s access to abortion because (1) of the temporal proximity between the imposition of the requirement and the closing of a number of clinics once the requirement was enforced;639 and (2) the necessary consequence of the requirement of foreclosing abortion providers from obtaining such privileges for reasons having “nothing to do with ability to perform medical procedures.”640 In the view of the Court, the resulting facility closures that the Court attributed to the first challenged requirement meant fewer doctors, longer wait times, and increased crowding for women at the remaining facilities, and the closures also increased driving distances to an abortion clinic for some women, amounting to an undue burden.641

Similarly as to the surgical-center requirement, the Whole Woman’s Health Court viewed the record as evidencing that the requirement “provides no benefits” in the context of abortions produced through medication and was “inappropriate” as to surgical abortions.642 In so doing, the Court also noted disparities between the treatment of abortion facilities and facilities providing other medical procedures, such as colonoscopies, which the evidence suggested had greater risks than abortions.643 The Court viewed the underlying record as demonstrating that the surgical-center requirement would also have further reduced the number of abortion facilities in Texas to seven or eight and, in so doing, would have burdened women’s access to abortion in the same way as the admitting-privileges requirement (e.g., creating crowding, increasing driving distances).644 Ultimately, the Court struck down the two provisions in the Texas law, concluding that the regulations in question imposed an undue burden on a “large fraction” of women for whom the provisions are an “actual” restriction.645

Privacy after Roe: Informational Privacy, Privacy of the Home or Personal Autonomy?.

The use of strict scrutiny to re-view intrusions on personal liberties in Roe v. Wade seemed to portend the Court’s striking down many other governmental restraints upon personal activities. These developments have not occurred, however, as the Court has been relatively cautious in extending the right to privacy. Part of the reason that the Court may have been slow to extend the rationale of Roe to other contexts was that “privacy” or the right “to be let alone” appears to encompass a number of different concepts arising from different parts of the Constitution, and the same combination of privacy rights and competing governmental interests are not necessarily implicated in other types of “private” conduct.

For instance, the term “privacy” itself seems to encompass at least two different but related issues. First, it relates to protecting against disclosure of personal information to the outside world, i.e., the right of individuals to determine how much and what information about themselves is to be revealed to others.646 Second, it relates inward toward notions of personal autonomy, i.e., the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences.647 These dual concepts, here referred to as “informational privacy” and “personal autonomy,” can easily arise in the same case, as government regulation of personal behavior can limit personal autonomy, while investigating and prosecuting such behavior can expose it to public scrutiny. Unfortunately, some of the Court’s cases identified violations of a right of privacy without necessarily making this distinction clear. While the main thrust of the Court’s fundamental-rights analysis appears to emphasize the personal autonomy aspect of privacy, now often phrased as “liberty” interests, a clear analytical framework for parsing of these two concepts in different contexts has not yet been established.

Another reason that “privacy” is difficult to define is that the right appears to arise from multiple sources. For instance, the Court first identified issues regarding informational privacy as specifically tied to various provisions of Bill of Rights, including the First and Fourth Amendments. In Griswold v. Connecticut,648 however, Justice Douglas found an independent right of privacy in the “penumbras” of these and other constitutional provisions. Although the parameters and limits of the right to privacy were not well delineated by that decision, which struck down a statute banning married couples from using contraceptives, the right appeared to be based on the notion that the government should not be allowed to gather information about private, personal activities.649 However, years later, when the closely related abortion cases were decided, the right to privacy being discussed was now characterized as a “liberty interest” protected under the Due Process Clause of the Fourteenth Amendment,650 and the basis for the right identified was more consistent with a concern for personal autonomy.

After Griswold, the Court had several opportunities to address and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal information.651 For example, in United States v. Miller,652 the Court, in evaluating the right of privacy of depositors to restrict government access to cancelled checks maintained by the bank, relied on whether there was an expectation of privacy under the Fourth Amendment.653 Also, the Court has held that First Amendment itself affords some limitation upon governmental acquisition of information, although only where the exposure of such information would violate freedom of association or the like.654

Similarly, in Fisher v. United States,655 the Court held that the Fifth Amendment’s Self-incrimination Clause did not prevent the IRS from obtaining 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. The Court noted that it “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 that, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort.”656 Furthermore, it wrote, “[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.”657

So what remains of informational privacy? A cryptic opinion in Whalen v. Roe658 may indicate the Court’s continuing willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs with abuse potential, and a centralized computer record-keeping system through which prescriptions, including patient identification, could be stored. 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 grievous threat to either interest to establish a constitutional violation.”659 Lower court cases have raised substantial questions as to whether this case established a “fundamental right” to informational privacy, and instead found that some as yet unspecified balancing test or intermediate level of scrutiny was at play.660

More than two decades after Whalen, the Court remains ambivalent about whether such a privacy right exists. In its 2011 decision in NASA v. Nelson, the Supreme Court unanimously ruled against 28 NASA workers who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights.661 In so doing, the Court assumed without deciding that a right to informational privacy could be protected by the Constitution and instead held that the right does not prevent the government from asking reasonable questions in light of the government’s interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures.662 As a result, the questions about the scope of the right to informational privacy suggested by Whalen remain.

The Court has also briefly considered yet another aspect of privacy—the idea that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home. In Stanley v. Georgia,663 the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues. In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns.664 Nonetheless, the Court based its decision upon a person’s protected right to receive what information and ideas he wishes, which derives from the “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy,”665 and from the failure of the state to either justify protecting an individual from himself or to show empirical proof of such activity harming society.666

The potential significance of Stanley was enormous, as any number of illegal personal activities, such as drug use or illegal sex acts, could arguably be practiced in the privacy of one’s home with little apparent effect on others. Stanley, however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home.667 In Paris Adult Theatre I v. Slaton,668 which upheld the government’s power to prevent the showing of obscene material in an adult theater, the Court recognized that governmental interests in regulating private conduct could include the promotion of individual character and public morality, and improvement of the quality of life and “tone” of society. “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.”669

Furthermore, continued the Court in Paris Adult Theatre I, “[o]ur 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.’ ”670

Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Hardwick.671 The Court in Bowers, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley did not implicitly create protection for “voluntary sexual conduct [in the home] between consenting adults.”672 Instead, the Court found Stanley “firmly grounded in the First Amendment,”673 and noted that extending the reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between consenting adults, including adultery, incest, and other sexual crimes. Although Bowers has since been overruled by Lawrence v. Texas674 based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places.

So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior. “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, 405 U.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.”675

Despite the limiting language of Roe, the concept of privacy still retained sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services Int’l,676 recognition of the “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 16.677 The Court significantly extended the Griswold-Baird line of cases 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 burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests.

For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick,678 where the Court by a 5–4 vote roundly rejected the suggestion that the privacy cases protecting “family, marriage, or procreation” extend protection to private consensual homosexual sodomy,679 and also rejected the more comprehensive claim that the privacy cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”680 Heavy reliance was placed on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibited the practice.681 The privacy of the home does not protect all behavior from state regulation, and the Court was “unwilling to start down [the] road” of immunizing “voluntary sexual conduct between consenting adults.”682 Interestingly, Justice Blackmun, in dissent, was most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited.683

Yet, Lawrence v. Texas,684 by overruling Bowers, brought the outer limits of noneconomic substantive due process into question by once again using the language of “privacy” rights. Citing the line of personal autonomy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”685

Although it quarreled with the Court’s finding in Bowers v. Hardwick that the proscription against homosexual behavior had “ancient roots,” Lawrence did not attempt to establish that such behavior was in fact historically condoned. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. Although the Court seems to recognize that a state may have an interest in regulating personal relationships where there is a threat of “injury to a person or abuse of an institution the law protects,”686 it also seems to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.687 Thus, the parameters for regulation of sexual conduct remain unclear.

For instance, the extent to which the government may regulate the sexual activities of minors has not been established.688 Analysis of this questions is hampered, however, because the Court has still not explained what about the particular facets of human relationships—marriage, family, procreation—gives rise to a protected liberty, and how indeed these factors vary significantly enough from other human relationships. The Court’s observation in Roe v. Wade “that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,” occasioning justification by a “compelling” interest,689 provides little elucidation.690

Despite the Court’s decision in Lawrence, there is a question as to whether the development of noneconomic substantive due process will proceed under an expansive right of “privacy” or under the more limited “liberty” set out in Roe. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is also now settled to be a “liberty” protected under the due process clauses, however, the analytical significance of denominating the particular right or interest as an element of privacy seems open to question.

Family Relationships.

Starting with Meyer and Pierce,691 the Court has held 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.”692 For instance, the right to marry is a fundamental right protected by the Due Process Clause,693 and only “reasonable regulations” of marriage may be imposed.694 Thus, the Court has held that a state may not deny the right to marry to someone who has failed to meet a child support obligation, as the state already has numerous other means for exacting compliance with support obligations.695 In fact, any regulation that affects the ability to form, maintain, dissolve, or resolve conflicts within a family is subject to rigorous judicial scrutiny.

In 2015, in Obergefell v. Hodges, the Supreme Court clarified that the “right to marry” applies with “equal force” to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.696 In so holding, the Court recognized marriage as being an institution of “both continuity and change,” and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry.697 More broadly, the Obergefell Court recognized that the right to marry is grounded in four “principles and traditions.” These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families;698 and (4) marriage is essential to the nation’s social order, because it is at the heart of many legal benefits.699 With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately “demean[ed]” and “stigma[tized]” those couples and any children resulting from such partnerships.700 Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the Fourteenth Amendment.701 The open question that remains respecting the substantive due process right to marriage post-Obergefell is whether the right of marriage, as broadly envisioned by the Court in the 2015 case, can extend to protect and require state recognition of other committed, autonomous relationships, such as polyamorous relationships.702

There is also a constitutional right to live together as a family,703 and this right is not limited to the nuclear family. Thus, a neighborhood that is zoned for single-family occupancy, and that defines “family” so as to prevent a grandmother from caring for two grandchildren of different children, was found to violate the Due Process Clause.704 And the concept of “family” may extend beyond the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited.705 On the other hand, the Court has held that 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.706

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.707 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,708 the Court evaluated a Washington State law that 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,”709 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 People with Mental Disabilities: Civil Commitment and Treatment.

The recognition of liberty rights for people with mental disabilities who are involuntarily committed or who voluntarily seek commitment to public institutions is potentially a major development in substantive due process. The states, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others.710 A state, however, “cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”711 Moreover, a person who is constitutionally confined “enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.”712 Influential lower court decisions have also found a significant right to treatment713 or “habilitation,”714 although the Supreme Court’s approach in this area has been tentative.

For instance, in Youngberg v. Romeo, the Court recognized a liberty right to “minimally adequate or reasonable training to ensure safety and freedom from undue restraint.”715 Although the lower court had agreed that residents at a state mental hospital are entitled to “such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit,”716 the Supreme Court found that the plaintiff had reduced his claim to “training related to safety and freedom from restraints.”717 But the Court’s concern for federalism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower federal courts must defer to professional decision-making to determine what level of 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.”718 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.719

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,720 the Court upheld a Kansas law that 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” that made him “likely to engage in acts of sexual violence.” Although the Court minimized the use of this expanded nomenclature,721 the concept of “mental abnormality” appears both more encompassing and less defined than the concept of “mental 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. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior.722

Still other issues await exploration.723 Additionally, federal legislation is becoming extensive,724 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 that the Due Process Clause protects.725

“Right to Die”.

Although the popular term “right to die” has been used to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, some distinct and some overlapping. For instance, “right to die” could include issues of suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process). Recently, a new category has been suggested—physician-assisted suicide—that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician.

There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens.726 On the other hand, the right of a seriously ill person to terminate life-sustaining medical treatment has been addressed, but not squarely faced. In Cruzan v. Director, Missouri Department of Health,727 the Court, rather than directly addressing the issue, “assume[d]” that “a competent person [has] a constitutionally protected right to refuse lifesaving hydration and nutrition.”728 More importantly, however, a majority of the Justices separately declared that such a liberty interest exists.729 Yet, it is not clear how actively the Court would seek to protect this right from state regulation.

In Cruzan, which involved a patient in a persistent vegetative state, the Court upheld a state requirement that there must be “clear and convincing evidence” of a patient’s previously manifested wishes before nutrition and hydration could be withdrawn. Despite the existence of a presumed due process right, the Court held that a state is not required to follow the judgment of the family, the guardian, or “anyone but the patient herself ” in making this decision.730 Thus, in the absence of clear and convincing evidence that the patient 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.731

Despite the Court’s acceptance of such state requirements, the implications of the case are significant. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized.732 However, the Court made clear in a subsequent case, Washington v. Glucksberg,733 that it intends to draw a line between withdrawal of medical treatment and more active forms of intervention.

In Glucksberg, 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.734 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,735 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.736


See Bill of Rights, “Fourteenth Amendment,” supra. back
See Roe v. Wade, 410 U.S. 113, 164 (1973). back
Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890). back
See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting) (arguing against the admissibility in criminal trials of secretly taped telephone conversations). In Olmstead, Justice Brandeis wrote: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” 277 U.S. at 478. back
262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923). back
268 U.S. 510 (1925). back
Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 531, 533, 534 (1928). The Court has subsequently made clear that these cases dealt with “a complete prohibition of the right to engage in a calling,” holding that “a brief interruption” did not constitute a constitutional violation. Conn v. Gabbert, 526 U.S. 286, 292 (1999) (search warrant served on attorney prevented attorney from assisting client appearing before a grand jury). back
262 U.S. at 399. back
262 U.S. at 400. back
268 U.S. at 534–35. back
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage and procreation are among “the basic civil rights of man”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (care and nurture of children by the family are within “the private realm of family life which the state cannot enter”). back
E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922) (allowing compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (allowing sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of insanity or imbecility); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940) (allowing institutionalization of habitual sexual offenders as psychopathic personalities). back
388 U.S. 1, 12 (1967). back
Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), Justice Douglas reinterpreted Meyer and Pierce as having been based on the First Amendment. Note also that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968), and Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506–07 (1969), Justice Fortas for the Court approvingly noted the due process basis of Meyer and Pierce while deciding both cases on First Amendment grounds. back
367 U.S. 497, 522, 539–45 (1961). Justice Douglas, also dissenting, relied on a due process analysis, which began with the texts of the first eight Amendments as the basis of fundamental due process and continued into the “emanations” from this as also protected. Id. at 509. back
According to Justice Harlan, due process is limited neither to procedural guarantees nor to the rights enumerated in the first eight Amendments of the Bill of Rights, but is rather “a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions.” The liberty protected by the clause “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” 367 U.S. at 542, 543. back
381 U.S. 479 (1965). back
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Griswold v. Connecticut, 381 U.S. at 482 (opinion of Court by Justice Douglas). back
The analysis, while reminiscent of the “right to privacy” first suggested by Warren and Brandeis, still approached the matter in reliance on substantive due process cases. It should be noted that the separate concurrences of Justices Harlan and White were specifically based on substantive due process, 381 U.S. at 499, 502, which indicates that the majority’s position was intended to be something different. Justice Goldberg, on the other hand, in concurrence, would have based the decision on the Ninth Amendment. 381 U.S. at 486–97. See analysis under the Ninth Amendment, “Rights Retained By the People,” supra. back
See Roe v. Wade, 410 U.S. 113 (1973). back
When the Court began to extend “privacy” rights to unmarried person through the equal protection clause, it seemed to rely upon a view of rationality and reasonableness not too different from Justice Harlan’s dissent in Poe v. Ullman. Eisenstadt v. Baird, 405 U.S. 438 (1972), is the principal case. See also Stanley v. Illinois, 405 U.S. 645 (1972). back
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). back
See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972). “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. 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 so fundamentally affecting a person as the decision whether to bear or beget a child.” 405 U.S. at 453. back
478 U.S. 186 (1986). back
The Court upheld the statute only as applied to the plaintiffs, who were homosexuals, 478 U.S. at 188 (1986), and thus rejected an argument that there is a “fundamental right of homosexuals to engage in acts of consensual sodomy.” Id. at 192–93. In a dissent, Justice Blackmun indicated that he would have evaluated the statute as applied to both homosexual and heterosexual conduct, and thus would have resolved the broader issue not addressed by the Court—whether there is a general right to privacy and autonomy in matters of sexual intimacy. Id. at 199–203 (Justice Blackmun dissenting, joined by Justices Brennan, Marshall and Stevens). back
539 U.S. 558 (2003) (overruling Bowers). back
See 521 U.S. 702, 720–21 (1997). back
See id. at 721 (internal citations and quotations omitted). back
See 576 U.S. ___, No. 14–556, slip op. at 18 (2015). back
See id. at 18–19. back
See id. at 18. back
491 U.S. 110 (1989). Five Justices agreed that a liberty interest was implicated, but the Court ruled that California’s procedures for establishing paternity did not unconstitutionally impinge on that interest. back
491 U.S. at 128 n.6. back
491 U.S. at 142. back
410 U.S. 113, 164 (1973). A companion case was Doe v. Bolton, 410 U.S. 179 (1973). The opinion by Justice Blackman was concurred in by Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and Rehnquist dissented, id. at 171, 221, arguing that the Court should follow the traditional due process test of determining whether a law has a rational relation to a valid state objective and that so judged the statute was valid. Justice Rehnquist was willing to consider an absolute ban on abortions even when the mother’s life is in jeopardy to be a denial of due process, 410 U.S. at 173, while Justice White left the issue open. 410 U.S. at 223. back
410 U.S. at 129–47. back
410 U.S. at 156–59. back
410 U.S. at 152–53. back
410 U.S. at 152–53. back
410 U.S. at 152, 155–56. The “compelling state interest” test in equal protection cases is reviewed under “The New Standards: Active Review,” infra. back
410 U.S. at 147–52, 159–63. back
410 U.S. at 163. back
410 U.S. at 163. back
410 U.S. at 163–64. A fetus becomes “viable” when it is “potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Id. at 160 (footnotes omitted). back
Doe v. Bolton, 410 U.S. 179 (1973). back
410 U.S. at 192–200. In addition, a residency provision was struck down as violating the privileges and immunities clause of Article IV, § 2. Id. at 200. See analysis under “State Citizenship: Privileges and Immunities,” supra. back
410 U.S. at 191–92. “[T]he medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age— relevant to the well-being of the patient. All these factors may relate to health.” Id. at 192. Presumably this discussion applies to the Court’s holding in Roe that even in the third trimester the woman may not be forbidden to have an abortion if it is necessary to preserve her health as well as her life, 410 U.S. at 163–64, a holding that is unelaborated in the opinion. See also United States v. Vuitch, 402 U.S. 62 (1971). back
Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See also Bellotti v. Baird, 443 U.S. 622 (1979) (parental consent to minor’s abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (imposition on doctor’s determination of viability of fetus and obligation to take life-saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of doctors to litigate right of patients to Medicaid-financed abortions); Bigelow v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for abortions); Connecticut v. Menillo, 423 U.S. 9 (1975) (state ban on performance of abortion by “any person” may constitutionally be applied to prosecute nonphysicians performing abortions). back
Planned Parenthood v. Danforth, 428 U.S. 52, 67–72 (1976). The Court recognized the husband’s interests and the state interest in promoting marital harmony. But the latter was deemed not served by the requirement, and, since when the spouses disagree on the abortion decision one has to prevail, the Court thought the person who bears the child and who is the more directly affected should be the one to prevail. Justices White and Rehnquist and Chief Justice Burger dissented. Id. at 92. back
428 U.S. at 72–75. Minors have rights protected by the Constitution, but the states have broader authority to regulate their activities than those of adults. Here, the Court perceived no state interest served by the requirement that overcomes the woman’s right to make her own decision; it emphasized that it was not holding that every minor, regardless of age or maturity, could give effective consent for an abortion. Justice Stevens joined the other dissenters on this part of the holding. Id. at 101. In Bellotti v. Baird, 443 U.S. 622 (1979), eight Justices agreed that a parental consent law, applied to a mature minor found to be capable of making, and having made, an informed and reasonable decision to have an abortion, was void but split on the reasoning. Four Justices would hold that neither parents nor a court could be given an absolute veto over a mature minor’s decision, while four others would hold that if parental consent is required the state must afford an expeditious access to court to review the parental determination and set it aside in appropriate cases. In H. L. v. Matheson, 450 U.S. 398 (1981), the Court upheld, as applied to an unemancipated minor living at home and dependent on her parents, a statute requiring a physician, “if possible,” to notify the parents or guardians of a minor seeking an abortion. The decisions leave open a variety of questions, addressed by some concurring and dissenting Justices, dealing with when it would not be in the minor’s best interest to avoid notifying her parents and with the alternatives to parental notification and consent. In two 1983 cases the Court applied the Bellotti v. Baird standard for determining whether judicial substitutes for parental consent requirements permit a pregnant minor to demonstrate that she is sufficiently mature to make her own decision on abortion. Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (no opportunity for case-by-case determinations); with Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983) (adequate individualized consideration). back
Planned Parenthood v. Danforth, 428 U.S. 52, 81–84 (1976). A law requiring a doctor, subject to penal sanction, to determine if a fetus is viable or may be viable and to take steps to preserve the life and health of viable fetuses was held to be unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379 (1979). back
Planned Parenthood v. Danforth, 428 U.S. 52, 75–79 (1976). back
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 438 (1983); Accord, Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983). The Court in Akron relied on evidence that “dilation and evacuation” (D&E) abortions performed in clinics cost less than half as much as hospital abortions, and that common use of the D&E procedure had “increased dramatically” the safety of second trimester abortions in the 10 years since Roe v. Wade. 462 U.S. at 435–36. back
Simopoulos v. Virginia, 462 U.S. 506, 516 (1983). back
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444–45 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). In City of Akron, the Court explained that while the state has a legitimate interest in ensuring that the woman’s consent is informed, 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. City of Akron, 462 U.S. 416, 448–49 (1983). back
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450–51 (1983). But see Hodgson v. Minnesota, 497 U.S. 417 (1990) (upholding a 48-hour waiting period following notification of parents by a minor). back
Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 486–90 (1983). back
462 U.S. at 482–86, 505. back
Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). See also Beal v. Doe, 432 U.S. 438 (1977) (states are not required by federal law to fund abortions); Harris v. McRae, 448 U.S. at 306–11 (same). The state restriction in Maher, 432 U.S. at 466, applied to nontherapeutic abortions, whereas the federal law barred funding for most medically necessary abortions as well, a distinction the Court deemed irrelevant, Harris, 448 U.S. at 323, although it provided Justice Stevens with the basis for reaching different results. Id. at 349 (dissenting). back
“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.” Maher, 432 U.S. at 469–74 (the quoted sentence is at 474); Harris, 448 U.S. at 321–26. Justices Brennan, Marshall, and Blackmun dissented in both cases and Justice Stevens joined them in Harris. 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. Poelker v. Doe, 432 U.S. 519 (1977). back
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419–20 (1983). In refusing to overrule Roe v. Wade, the Court merely cited the principle of stare decisis. Justice Powell’s opinion of the Court was joined by Chief Justice Burger, and by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O’Connor, joined by Justices White and Rehnquist, dissented, voicing disagreement with the trimester approach and suggesting instead that throughout pregnancy the test should be the same: whether state regulation constitutes “unduly burdensome interference with [a woman’s] freedom to decide whether to terminate her pregnancy.” 462 U.S. at 452, 461. In the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), Justice White, joined by Justice Rehnquist, advocated overruling of Roe v. Wade, Chief Justice Burger thought Roe v. Wade had been extended to the point where it should be reexamined, and Justice O’Connor repeated misgivings expressed in her Akron dissent. back
492 U.S. 490 (1989). back
The Court declined to rule on several other aspects of Missouri’s law, including a preamble stating that life begins at conception, and a prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion. back
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. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990). 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. Hodgson v. Minnesota, 497 U.S. 417 (1990). back
492 U.S. at 519–20. Dissenting Justice Blackmun, joined by Justices Brennan and Marshall, argued that this “permissibly furthers” standard “completely disregards the irreducible minimum of Roe . . . that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy,” and instead balances “a lead weight” (the State’s interest in fetal life) against a “feather” (a woman’s liberty interest). Id. at 555, 556 n.11. back
Hodgson v. Minnesota, 497 U.S. 417, 450 (1990). back
492 U.S. at 521. Concurring Justice O’Connor agreed that “no decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible.” Id. at 528. back
492 U.S. at 519. back
492 U.S. at 529. Previously, dissenting in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983), Justice O’Connor had suggested that the Roe trimester framework “is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.” back
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,” id. at 923, 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. back
505 U.S. 833, 846 (1992). back
505 U.S. 833, 860 (1992). back
505 U.S. at 877–78. Application of these principles in Casey led the Court to uphold overrule some precedent, but to invalidate arguably the most restrictive provision. The four provisions challenged which were upheld included a narrowed definition of “medical emergency” (which controlled exemptions from the Act’s limitations), record keeping and reporting requirements, an informed consent and 24-hour waiting period requirement; and a parental consent requirement, with possibility for judicial bypass, applicable to minors. The provisions which was invalidated as an undue burden on a woman’s right to an abortion was a spousal notification requirement. back
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (invalidating “informed consent” and 24-hour waiting period); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating informed consent requirement). back
Requiring informed consent for medical procedures was found to be 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 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). 505 U.S. at 885–87. back
The plurality Justices were joined in this part of their opinion by Justices Blackmun and Stevens. back
505 U.S. at 898. back
530 U.S. 914 (2000). back
530 U.S. at 938–39. back
The Nebraska law provided that such procedures could be performed where “necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” Neb. Rev. Stat. Ann. § 28–328(1). back
Roe v. Wade, 410 U.S. 113, 164 (1973). back
As to the question of whether an abortion statute that is unconstitutional in some instances should be struck down in application only or in its entirety, see Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (challenge to parental notification restrictions based on lack of emergency health exception remanded to determine legislative intent regarding severability of those applications). back
550 U.S. 124 (2007). back
Justice Kennedy wrote the majority opinion, joined by Justices Roberts, Scalia, Thomas, and Alito, while Justice Ginsberg authored a dissenting opinion, which was joined by Justices Steven, Souter and Breyer. Justice Thomas also filed a concurring opinion, joined by Justice Scalia, calling for overruling Casey and Roe. back
18 U.S.C. § 1531(b)(1)(A). The penalty imposed on a physician for a violation of the statute was fines and/or imprisonment for not more than 2 years. In addition, the physician could be subject to a civil suit by the father (or maternal grandparents, where the mother is a minor) for money damages for all injuries, psychological and physical, occasioned by the violation of this section, and statutory damages equal to three times the cost of the partial-birth abortion. back
550 U.S. at 150. back
550 U.S. at 148–150. back
As in Stenberg, the statute provided an exception for threats to the life of a woman. back
550 U.S. at 162. Arguably, this holding overruled Stenberg insofar as Stenberg had allowed a facial challenge to the failure of Nebraska to provide a health exception to its prohibition on intact dilation and excavation abortions. 530 U.S. at 929–38. back
550 U.S. at 168. back
550 U.S. at 160. back
579 U.S. ___, No. 15–274, slip op. (2016). back
Id. at 1–2. back
Id. at 22. back
Id. at 19. back
Id. back
Id. at 22, 28–30 (reviewing the state of the law prior to the enactment of the abortion regulation to determine whether there was a “significant health-related problem that the new law helped to cure.”). back
Id. at 30 (comparing the health risks associated with abortion relative to other medical procedures). back
Id. at 20. back
See id. (noting that in Gonzales v. Carhart, 550 U.S. 124, 165 (2007), the Court maintained that courts have an “independent constitutional duty” to review factual findings when reviewing legislation as inconsistent with abortion rights). back
Id. at 19 (quoting and citing Planned Parenthood v. Casey, 505 U.S. 833, 877–78 (1992) (plurality opinion)). back
Id. at 23.The Court further noted that Texas had admitted it did not know of a “single instance” where the requirement would have helped “even one woman” obtain “better treatment.” Id. back
Id. at 27. back
Id. at 24. back
Specifically, the Court noted that hospitals typically condition admitting privileges based on the number admissions a doctor has to a hospital—policies that, because of the safety of abortion procedures, meant that providers likely would be unable to obtain and maintain such privileges. Id. at 25. back
Id. at 26. The Court noted that increased driving distances are not necessarily an undue burden, but in this case viewed them as “one additional burden” which, when taken together with the other burdens—and the “virtual absence of any health benefit”—lead to the conclusion that the admitting-privileges requirement constitutes an undue burden. Id. back
Id. at 30. back
Id. at 30–31. back
Id. at 32, 35–36. back
Id. at 39. In so concluding, the Whole Woman’s Health Court appears to have clarified that the burden for a plaintiff to establish that an abortion restriction is unconstitutional on its face (as opposed to unconstitutional as applied in a particular circumstance) is to show that the law would be unconstitutional with respect to a “large fraction” of women for whom the provisions are relevant. Id. (rejecting Texas’s argument that the regulations in question would not affect most women of reproductive age in Texas); cf. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). back
For instance, Justice Douglas’s asked rhetorically in Griswold: “[w]ould we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” 381 U.S. at 486. back
Whalen v. Roe, 429 U.S. 589, 598–600 (1977). back
381 U.S. 479 (1965). back
The predominant concern flowing through the several opinions in Griswold v. Connecticut 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 pressures such investigative techniques would impose on the confines of the Fourth Amendment’s search and seizure clause, but also included techniques that would have been within the range of permissible investigation. back
Roe v. Wade, 410 U.S. 113, 153 (1973). See id. at 167–71 (Justice Stewart concurring). Justice Douglas continued to deny that substantive due process is the basis of the decisions. Doe v. Bolton, 410 U.S. 179, 209, 212 n.4 (1973) (concurring). back
E.g., California Bankers Ass’n v. Shultz, 416 U.S. 21 (1974). See also Laird v. Tatum, 408 U.S. 1 (1972); United States v. United States District Court, 407 U.S. 297 (1972); United States v. Dionisio, 410 U.S. 1 (1973); Zurcher v. Stanford Daily, 436 U.S. 547 (1978). back
425 U.S. 435 (1976). See also Fisher v. United States, 425 U.S. 391, 401 (1976); Paul v. Davis, 424 U.S. 693, 712–13 (1976); United States v. Bisceglia, 420 U.S. 141 (1975). back
The Bank Secrecy Act required the banks to retain cancelled checks. The Court held that the checks were business records of the bank in which the depositors had no expectation of privacy and therefore there was no 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. back
See Buckley v. Valeo, 424 U.S. 1, 60–82 (1976); Whalen v. Roe, 429 U.S. 589, 601 n.27, 604 n.32 (1977); United States v. Miller, 425 U.S. 435, 444 n.6 (1976). The Court continues to reserve the question of the “[s]pecial problems of privacy which might be presented by subpoena of a personal diary.” Fisher v. United States, 425 U.S. 391, 401 n.7 (1976). back
425 U.S. 391 (1976). back
425 U.S. at 399. back
425 U.S. at 401. back
429 U.S. 589 (1977). back
429 U.S. at 598–604. The Court cautioned that it had decided nothing about the privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure “arguably has its roots in the Constitution,” at least “in some circumstances,” the Court seemed to indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the Court’s careful circumscription of the privacy issue through balancing does to the concept is unclear after Nixon v. Administrator of General Services, 433 U.S. 425, 455–65 (1977) (stating that an invasion of privacy claim “cannot be considered in abstract [and] . . . must be weighed against the public interest”). But see id. at 504, 525–36 (Chief Justice Burger dissenting), and 545 n.1 (Justice Rehnquist dissenting). back
See, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) (“. . . we believe that the balancing test, more common to due process claims, is appropriate here.”). back
See 562 U.S. 134 (2011). back
Id. at 148–56. back
394 U.S. 557 (1969). back
In fact, the Court passed over a subsidiary Fourth Amendment issue that was available for decision in favor of a broader resolution. 394 U.S. at 569–72. (Stewart, J., concurring). back
394 U.S. at 564–65. back
The rights noted by the Court 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. back
United States v. Reidel, 402 U.S. 351, 354–56 (1971) (no right to distribute obscene material for private use); United States v. Thirty-seven Photographs, 402 U.S. 363, 375–76 (1971) (no right to import obscene material for private use); United States v. 12 200–Ft. Reels of Film, 413 U.S. 123 (1973) (no right to acquire obscene material for private use); Osborne v. Ohio, 495 U.S. 103, 109–111 (1990) (no right to possess child pornography in the home). back
413 U.S. 49 (1973). back
413 U.S. at 64. Similar themes can be found in Roe v. Wade, 410 U.S. 113, 148 (1972), decided the year before. Because the Court had determined that the right to obtain an abortion constituted a protected “liberty,” the State was required to justify its proscription by a compelling interest. Departing from a laissez faire, “free will” approach to individual autonomy, the Court recognized protecting the health of the mother as a valid interest. The Court also mentioned but did not rule upon a state interest in protecting morality. The Court was referring not to the morality of abortion, but instead to the promotion of sexual morality through making abortion unavailable. Roe v. Wade, 410 U.S. 113, 148 (1972). back
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57–63, 63–64, 68–69 (1973); see also id. at 68 n.15. Although it denied a privacy right to view obscenity in a theater, the Court recognized that, in order to protect otherwise recognized autonomy rights, the privacy right might need to be expanded to a variety of different locations: “[T]he 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.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 n.13 (1973). Thus, arguably, the constitutional protection of places (as opposed to activities) arises not because of any inherent privacy of the location, but because the protected activities normally take place in those locales. back
478 U.S. 186 (1986). back
478 U.S. at 195–96. Dissenting, Justice Blackmun challenged the Court’s characterization of Stanley, suggesting that it had rested as much on the Fourth as on the First Amendment, and that “the right of an individual to conduct intimate relationships in . . . his or her own home [is] at the heart of the Constitution’s protection of privacy.” Id. at 207–08. back
478 U.S. 186, 195 (1986). back
539 U.S. 558 (2003). back
Roe v. Wade, 410 U.S. 113, 152 (1973). back
431 U.S. 678 (1977). back
431 U.S. at 684–91. The opinion of the Court on the general principles drew the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White concurred in the result in the voiding of the ban on access to adults while not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented. 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 attempted 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. Id. at 691–99. This portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702, 717. back
478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion. back
“[N]one of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.” 478 U.S. at 190–91. back
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. 478 U.S. at 191. The Court concluded that there was no “fundamental right [of] homosexuals to engage in acts of consensual sodomy,” as homosexual sodomy is neither a fundamental liberty “implicit in the concept of ordered liberty” nor is it “deeply rooted in this Nation’s history and tradition.” 478 U.S. at 191–92. back
478 U.S. at 191–92. Chief Justice Burger’s brief concurring opinion amplified this theme, concluding that constitutional protection for “the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.” Id. at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not prosecuted, and had initiated the action to have the statute under which he had been charged declared unconstitutional). Id. back
The Court voiced concern that “it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.” 478 U.S. at 195–96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217–18) suggested that these crimes are readily distinguishable. back
478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomy by married couples, and that Georgia had not justified selective application to homosexuals. Id. at 219. Justice Blackmun would instead have addressed the issue more broadly as to whether the law violated an 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. 478 U.S. at 204–06. This position was rejected by the majority, however, which held that the thrust of the fundamental right of privacy in this area is one functionally related to “family, marriage, or procreation.” 478 U.S. at 191. See also Paul v. Davis, 424 U.S. 693, 713 (1976). back
539 U.S. 558 (2003). back
539 U.S. at 567. back
539 U.S. at 567. back
The Court noted with approval Justice Stevens’ dissenting opinion in Bowers v. Hardwick, stating “that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” 539 U.S. at 577–78, citing Bowers v. Hardwick, 478 U.S. at 216. back
The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712. back
Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey, 431 U.S. at 684–85. back
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 not its social significance but is whether it is “explicitly or implicitly guaranteed by the Constitution.” San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33–34 (1973). That this limitation has not been honored with respect to equal protection analysis or due process analysis can be easily discerned. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring). back
Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1928). back
Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Unlike the liberty interest in property, which derives from early statutory law, these liberties spring instead from natural law traditions, as they are “intrinsic human rights.” Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). These rights, however, do not extend to all close relationships. Bowers v. Hardwick, 478 U.S. 186 (1986) (same sex relationships). back
Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974); Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978). back
Zablocki v. Redhail, 434 U.S. 374, 386 (1978). back
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 a violation of due process. Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47 (1977). back
See 576 U.S. ___, No. 14–556, slip op. at 12 (2015). back
See id. at 6–10. back
In Pavan v. Smith, the Court reviewed an Arkansas law providing that when a married woman gives birth, her husband must be listed as the second parent on the child’s birth certificate, including when he is not the child’s genetic parent. 582 U.S. ___, No. 16–992, slip op. at 1 (2017). The lower court had interpreted the law to not require the state to extend the rule to similarly situated same-sex couples. Id. Relying on Obergefell, the Court struck down the law, noting that the “differential treatment” of the Arkansas rules “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.’ ” Id. (quoting Obergefell, slip op. at 17.) back
See id. at 12–16. back
See id. at 17. back
See id. at 17–18. The Court also grounded its Obergefell decision in the Equal Protection Clause of the Fourteenth Amendment. Id. at 19 (“The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”). For a discussion of Obergefell’s equal protection holding, see infra Fourteenth Amendment: Equal Protection of the Laws: The New Equal Protection: Sexual Orientation. back
See, e.g., Obergefell, slip op. at 20 (Roberts, C.J., dissenting) (“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”); but see Joanna L. Grossman & Lawrence M. Friedman, Is Three Still a Crowd? Polygamy and the Law After Obergefell v. Hodges, VERDICT (July 7, 2015), available at (“Obergefell did not really open the door to plural marriages.”). For an extended debate on whether the right to marry protects plural marriages, compare Ronald C. Den Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 EMORY L.J. 1977 (2015), with John Witte, Jr., Why Two in One Flesh? The Western Case for Monogamy Over Polygamy, 64 EMORY L.J. 1675 (2015). back
“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). back
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. back
Smith v. Organization of Foster Families, 431 U.S. 816 (1977). As the Court noted, the rights of a natural family arise independently of statutory law, whereas the ties that develop between a foster parent and a foster child arise as a result of state-ordered arrangement. As these latter liberty interests arise from positive law, they are subject to the limited expectations and entitlements provided under those laws. Further, in some cases, such liberty interests may not be recognized without derogation of the substantive liberty interests of the natural parents. Although Smith does not define the nature of the interest of foster parents, it would appear to be quite limited and attenuated. Id. at 842–47. In a conflict between natural and foster families, a court is likely to defer to a typical state process which makes such decisions based on the best interests of the child. See Quilloin v. Walcott, 434 U.S. 246 (1978). back
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. back
The clearest conflict to date was presented by state law 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, 503 U.S. 833 (1992). See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child for treatment of mental illness). back
530 U.S. 57 (2000). back
530 U.S. at 66. back
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). back
O’Connor v. Donaldson, 422 U.S. 563, 576 (1975). See Jackson v. Indiana, 406 U.S. 715 (1972); Vitek v. Jones, 445 U.S. 480, 491–94 (1980). back
Youngberg v. Romeo, 457 U.S. 307, 324 (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”). back
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 F. 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, 422 U.S. 563 (1975). back
“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; ellipses and brackets supplied by the Court). back
Youngberg v. Romeo, 457 U.S. 307, 319 (1982). back
457 U.S. at 318 n.23. back
457 U.S. 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. 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 thereby 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 that had relied on the circuit’s 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”). back
457 U.S. at 323. back
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). The Supreme Court has limited the injunctive powers of the federal courts in similar situations. back
521 U.S. 346 (1997). back
521 U.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). back
Kansas v. Crane, 534 U.S. 407 (2002). back
See Developments in the Law: Civil Commitment of the Mentally Ill, 87 HARV. 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). back
Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. 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. §§ 9401 et seq. back
See, e.g., Mills v. Rogers, 457 U.S. 291, 299–300 (1982). On the question of procedural due process rights that apply to civil commitments, see “The Problem of Civil Commitment,” infra. back
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990) (“We do not think that a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death”). back
497 U.S. 261 (1990). back
497 U.S. at 279. back
See 497 U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting). back
497 U.S. at 286. back
“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 constitutionally protected interests of the individual.” 497 U.S. at 281–82. back
There was testimony that the patient in Cruzan could be kept “alive” for about 30 years if nutrition and hydration were continued. back
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. back
521 U.S. at 720. back
E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty interest in terminating pregnancy). back
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, 521 U.S. at 736–37 (Justice O’Connor, concurring). back