Fundamental Right to Reproductive Autonomy

1. The constitution protects unenumearted rights when the rights are fundamental.

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

3. Rights that are fundamental

   1. Marriage

   2. Procreation

   3. Privacy

4. Under what constitional provisions are these rights protected?

   1. Penumbras

   2. 9th amendment

   3. 14th amendment Due Process & Equal Protection clause

5. How are these fundamental rights protected?

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

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

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

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

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

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

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

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

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

      1. The first amendment implicit right of association

      2. The third amendment protection from the quartering of troops

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

      4. Ninth amendment

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

   2. Concurrence:

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

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

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

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

      1. “Brennan: If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters fundamentally affecting a person as the decision whether to bear or beget a child.”

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

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

       1. The right is NOT absolute

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

    2. Trimester framework

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

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

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

    3. Dissent

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

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

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

    2. Powell: Connecticut law placed no obstacles in the pregnant woman's path to an abortion, and that it did not "impinge upon the fundamental right recognized in Roe." The Court noted that there was a distinction between direct state interference with a protected activity and "state encouragement of alternative activity consonant with legislative policy."...

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