American Constitutionalism in Historical Perspective (packet)

Significance: Every aspect of heterosexual sex/relationship is now constit protected (contraception, abortion, marriage, custody, and divorce). Need compelling state interest to invade these rts.

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   P. 612 Goodridge v. Dept of Public Health: Prohibitions against same sex marriages violate the Massachusetts state constitution. Struck down state’s same sex marriage bans on DP and Equal Protection grounds. Cites Lawrence but waited 15 yrs for ct to hear anti-miscegenation laws when had Brown, may do same thing w/ gay marriage. Drug laws have same prob of waiting for popular opinion before ct changes policy.
   

Rt to die cases

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   Aiding and abetting suicide is STILL criminalized. But prosecutors d/n enforce euthanasia cases and jury often d/n convict. Involuntary (murder) v. voluntary euthanasia (passive and active).
   
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      Passive: letting die: take off life support when terminally ill more morally acceptable. Living will cases and cases w/out living will (Cruzan and Quinlan) conflict in testimony, no clear evidence.
      
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         Cruzan v. Director Missouri Health Dept. of Health, 1990: p. 614 rejects the family’s request to have their loved one removed from life support b/c she had no living will. When have a living will have the right to end ones life b/c have rt to live a dignified life. It’s an aspect of intimate life and privacy. History that supports rt to die is rt to reject treatment (tort and constitutional rt) if you’re competent adult. State’s interest in preserving her life isn’t enough to trump her rt to control her life (close to Roe/Casey). Mystery of birth vs. mystery of death.
         
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            Missouri requires clear & convincing evidence that Cruzan w’ve wanted to be removed from respirator b/c no living will. State is worried about decision to take her off life support being irreversible. Family’s interest may not be wholesome and be conflicted.
            
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            Dissent: using Cruzan for state’s conception of life that she d/n believe in and violates her privacy. Disagrees that the living will should be constit measure, too high a threshold since most people d/n have them. Family should be allowed to act as a proxy.
            
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      Active: killing: terminally ill person given something to facilitate their death
      
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         Washington v. Glucksberg (1997): p. 618 unanimous court (Rehnquist) held that WA’s prohibition vs. causing/aiding a suicide d/n offend 14^th A, facially and as applied. Can pass assisted-suicide law democratically but w/n say its constitutional rt to do so. Motivation is worry about what it would involve in terms of compelling state interests: p. 621
         
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            violates doctor’s role as healers
            
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            slippery slope to involuntary euthanasia; protect vulnerable groups (elderly, poor and disabled) from abuse, neglect and mistakes
            
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            irreversible decision, may be influenced by depression
            
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            unqualified secular interest in preserving life
            
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            Oregon and Netherlands allow active euthanasia pp. 621-22 lots of procedures
            
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            Concurrences: would only strikes this down as applied. May be cases where the rt is very clear and would be unconscionable not to honor it. Ex: Pain is so terrible, only humane thing to do is give deadly dose of painkiller.