American Constitutionalism in Historical Perspective (packet)

Constitutional Privacy Cases: must ask what the right is and how do we infer it. In these cases the right is control over intimate life, this is recognized as a basic human right. This right cannot be abridged without a compelling state purpose.

1. 
   Griswold v. Connecticut (1965) p. 546 strikes down state statute criminalizing use of contraception that had been extended to married couples. Privacy interests of the married couple. Moral consensus, public no longer believes that contraception is morally shameful (narrow obscenity laws had prevented speaking of contraception by Sanger). Now agree that women can control their rep autonomy, no harm to third parties.
   
   1. 
      Douglas Majority: p. 547: one of the associations that Constitution protects is marital association, rt to educate, etc. Penumbra argument: in recognizing 1^st A rts have to protect buffer zones around them. These rts existed before Bill of Rts. To allow liberty, must allow privacy from hostile majorities. Privacy rts in 3rd A (rt not have soldiers quartered in your home) and 5^th A (rt against self-incrimination). He then extends these privacy rights to sexuality. Finds that in order to enforce the statute, would have to permit police into the bedroom or massive electronic bugging. This c/n be allowed under 4^th A. Marital association is basic const rt—rt to intimate life. No discussion of state purpose.
      
   2. 
      Goldberg Concurrence: 9^th A rebuts the inference that Bill of Rts 1-8 encompasses all of the protected rts. Can extend protection beyond the enumerated rts to include intimate life. The law here designed to prevent premarital affairs or extramarital affairs (state purpose), not narrowly tailored to this end. Overinclusive: also prevents methods to avoid disease.
      
   3. 
      Harlan Concurrence: p. 549 relied on dissent in Poe v. Ullman: argues that P & I clause in 14^th A allows natl govt to protect all unenumerated rts. Basic human rts include the rt to married life. Not included in the Bill of Rights because marriage was a state matter. Exempts abortion and homosexual sexuality from rt to intimate life. And says that can limit this rt to intimate association given compelling state purpose. Notes that these laws were put into place to increase pop and to prevent non-procreational sex. We no longer have these concerns, so not valid state purpose and d/n preserve justice, prevent harm to others/self, etc
      
   4. 
      Black Dissent: fears that judges have too much power to create and expand rights.
      

Status of Fetus	Mother-Fetus
(1) Pre-fertilization	(1) Self-defense vs. rape
(2) Fertilization	(2) Necessity
(3) Quickening	(3) Euthanasia/birth defects
(4) Pain/pleasure receptors	(4) Good Samaritan (imposing moral obligation on women that men d/n have)
(5) Brain activity
(6) Viability
(7) Birth
(8) Self-consciousness

Roe Casey
1^st Trimester (1) [---]
2^nd Trimester (2) 24 hour waiting
3^rd Trimester (3) spousal consent

2. 
   Roe v. Wade, 1973: p. 558 ct is ahead of public opinion when it strikes down a TX law that bans all abortions unless the mother’s life is in danger. Restrikes the balance by introducing the trimester system through substantive DP.
   
   1. 
      Blackmun: rt of personal autonomy is not absolute, but subject to reasonable reg. NO consensus about when fetus is full of moral purpose but draws the line at point of viability. Ct deciding this issue when says no one can decide it is heart of the prob in Roe (trimester system is more legislative)
      
   2. 
      Legitimate state purposes: to protect potential fetal life and the health/life of the mother. Develops trimester system by balancing these purposes which shifts across the trimesters. More permissive of abortion in first 2 trimesters, but state can prohibit it in the third trimester. (Casey permits more regulation in first 2 trimesters that Roe would permit)
      
      1. 
         First trimester: potential life has no wt, find health benefits to women favor abortion over carrying to term. No state regulation b/c safer for women to have abortion than not.
         
      2. 
         Second trimester: no prohibition on abortion, but the state may reasonably regulate to ensure that the procedures are carried out safely (abortion is now dangerous to women).
         
      3. 
         Third trimester: point of viability, the interests in potential life is sufficiently compelling to analogize abortion to homicide. (but this line can be moved earlier w/ tech advances)
         
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