Substantive Law Study Support

Griswold v. Connecticut, 381 U.S. 479 (1965)

Appellants, the executive director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife’s use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception.
Appellants claimed that the accessory statute as applied violated the Fourteenth Amendment. An intermediate appellate court and the state’s highest court affirmed the judgment.

Held: 1. Appellants have standing to assert the constitutional rights of married people. Tileston v. Ullman, 318 U.S. 44, distinguished. 2. The Connecticut statute forbidding the use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights.

Zablocki v. Redhail, 434 U.S. 374 (1978)

A Wisconsin statute provides that any resident of that state “having minor issue not in his custody and which he is under obligation to support by any court order or judgment” may not marry without a court approval order, which cannot be granted absent a showing that the support obligation has been met and that children covered by the support order “are not then and are not likely thereafter to become public charges. ”
Held: The statute violated the Equal Protection Clause of the Fourteenth Amendment.

Skinner v. Oklahoma, 316 U.S. 535 (1942)

This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right that is basic to the perpetuation of a race—the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari. The statute involved is Oklahoma’s Habitual Criminal Sterilization Act.
Petitioner was convicted in 1926 of the crime of stealing chickens and was sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of the crime of robbery with firearms and was sentenced to the reformatory. In 1934 he was convicted again of robbery with firearms and was sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In 1936 the attorney general instituted proceedings against him. Petitioner in his answer challenged the Act as unconstitutional by reason of the Fourteenth Amendment.
It is true that the Act has a broad severability clause. But we will not endeavor to determine whether its application would solve the equal protection difficulty. The Supreme Court of Oklahoma sustained the Act without reference to the severability clause. We have therefore a situation where the Act as construed and applied to petitioner is allowed to perpetuate the discrimination which we have found to be fatal. Whether the severability clause would be so applied as to remove this particular constitutional objection is a question which may be more appropriately left for adjudication by the Oklahoma court. That is reemphasized here by our uncertainty as to what excision, if any, would be made as a matter of Oklahoma law. It is by no means clear whether if an excision were made, this particular constitutional difficulty might be solved by enlarging on the one hand or contracting on the other the class of criminals who might be sterilized.
Held: The decision of the Supreme Court of Oklahoma was reversed.

Eisenstadt v. Baird, 405 U.S. 438 (1972)

Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician’s prescription. The district court dismissed appellee’s petition for a writ of habeas corpus. The court of appeals vacated the dismissal, holding that the statute is a prohibition on contraception per se and conflicts “with fundamental human rights” under Griswold v. Connecticut, 381 U.S. 479.

Appellant, inter alia, argues that appellee lacks standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under the statute nor a single person unable to obtain contraceptives.
Held: 1. If, as the court of appeals held, the statute under which appellee was convicted is not a health measure, appellee may not be prevented, because he was not an authorized distributor, from attacking the statute in its alleged discriminatory application to potential distributees. Appellee, furthermore, has standing to assert the rights of unmarried persons denied access to contraceptives because their ability to obtain them will be materially impaired by enforcement of the statute. 2. By providing dissimilar treatment for married and unmarried persons who are similarly situated, the statute violates the Equal Protection Clause of the Fourteenth Amendment.

Carey v. Population Services International, 431 U.S. 678 (1977)

Section 6811 (8) of the New York Education Law makes it a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under 16; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives. In appellees’ action against appellant state officials challenging the constitutionality of 6811 (8), a three-judge district court declared the statute unconstitutional in its entirety under the First and Fourteenth Amendments, insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied.
Held: The judgment is affirmed.

Roe v. Wade, 410 U.S. 113 (1973)

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife’s health. A three-judge district court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights. The court ruled the Does’ complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the district court’s grant of declaratory relief to Roe and Hallford.
Held: 1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. 2. Roe has standing to sue; the Does and Hallford do not. 3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the state cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term. 4. The state may define the term “physician” to mean only a physician currently licensed by the state and may proscribe any abortion by a person who is not a physician as so defined. 5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the Court’s ruling that the Texas criminal abortion statutes are unconstitutional.

Webster v. Reproductive Health Services, 492 U.S. 490 (1989)
Appellees, state-employed health professionals and private nonprofit corporations providing abortion services, brought suit in the district court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth “findings” in its preamble that “[t]he life of each human being begins at conception” and that “unborn children have protectable interests in life, health, and well-being,” 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the federal Constitution and this Court’s precedents, 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is “viable” by performing “such medical examinations and tests as are necessary to make a finding of [the fetus’s] gestational age, weight, and lung maturity,” 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother’s life, 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of “encouraging or counseling” a woman to have an abortion not necessary to save her life, 188.205, 188.210, 188.215. The district court struck down each of the above provisions, among others, and enjoined their enforcement. The court of appeals affirmed, ruling that the provisions in question violated this Court’s decisions in Roe v. Wade, 410 U.S. 113, and subsequent cases.
Held: The judgment is reversed.

Planned Parenthood v. Casey, 505 U.S. 833 (1992)

At issue are five provisions of the Pennsylvania Abortion Control Act of 1982: 3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure and specifies that she be provided with certain information at least twenty-four hours before the abortion is performed; 3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; 3203, which defines a “medical emergency” that will excuse compliance with the foregoing requirements; and 3207(b), 3214(a), and 3214(f), which impose certain reporting requirements on facilities providing abortion services. Before any of the provisions took effect, the petitioners, five abortion clinics and a physician representing himself and a class of doctors who provide abortion services, brought this suit seeking a declaratory judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief. The district court held all the provisions unconstitutional and permanently enjoined their enforcement. The court of appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others.
Held: The essential holding in Roe is retained and reaffirmed as to each of its three parts.

Gonzales v. Carhart, 550 U.S. 124 (2007)

Congress made it a crime to carry out an abortion by a procedure referred to as an “intact Dilation and Extraction (D&E).” Congress defined the crime of a “partial-birth abortion” as a two-step process intentionally performed by a physician:
1) The physician would cause a still-living fetus to begin to be delivered until either the entire head of the fetus was outside the mother’s body, or any part of the fetus’s body, past its naval, was outside of the mother’s body; and
2) The physician would perform an “overt act” on the partially delivered fetus for the purpose of killing it.
The Supreme Court concluded by a 5–4 vote that the federal statute was not invalid on its face. They determined the statute was not vague, it did not bar standard D&Es, and the statute was not an undue burden on a woman’s right to control her reproductive destiny.
Held: The Court reversed the decisions of the United States Court of Appeals for the Eighth and Ninth Circuit and affirmed the district court rulings.

Bowers v. Hardwick, 478 U.S. 186 (1986)

After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in federal district court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants’ motion to dismiss for failure to state a claim. The court of appeals reversed and remanded, holding that the Georgia statute violated respondent’s fundamental rights.
Held: The Georgia statute is constitutional.

Lawrence v. Texas, 539 U.S. 558 (2003)

Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the state court of appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841, controlling on that point.
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

Goodridge v. Department of Public Health, 440 Mass. 309 (2003)

Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

We are mindful that our decision marks a change in the history of our marriage law.

Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472, 2480 (2003) (Lawrence), quoting Planned

Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992).

Held: The decision of the Superior Court was reversed. The Massachusetts Supreme Judicial Court ruled that the state could not “deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.” Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) Petitioner Nancy Cruzan is incompetent, having sustained severe injuries in an automobile accident, and now lies in a Missouri state hospital in what is referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. The state is bearing the cost of her care. Hospital employees refused, without court approval, to honor the request of Cruzan’s parents, copetitioners her, to terminate her artificial nutrition and hydration, since that would result in death. A state trial court authorized the termination, finding that a person in Cruzan’s condition has a fundamental right under the state and federal Constitutions to direct or refuse the withdrawal of death-prolonging procedures and that Cruzan’s expression to a former housemate that she would not wish to continue her life if sick or injured unless she could live at least halfway normally suggested that she would not wish to continue on with her nutrition and hydration. The State Supreme Court reversed. While recognizing a right to refuse treatment embodied in the common-law doctrine of informed consent, the court questioned its applicability in this case. It also declined to read into the state constitution a broad right to privacy that would support an unrestricted right to refuse treatment and expressed doubt that the federal Constitution embodied such a right. The court then decided that the State Living Will statute embodied a state policy strongly favoring the preservation of life and that Cruzan’s statements to her housemate were unreliable for the purpose of determining her intent. It rejected the argument that her parents were entitled to order the termination of her medical treatment, concluding that no person can assume that choice for an incompetent in the absence of the formalities required by the Living Will statute or clear and convincing evidence of the patient’s wishes.
Held: 1. The U.S. Constitution does not forbid Missouri to require that evidence of an incompetent’s wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. 2. The State Supreme Court did not commit a constitutional error in concluding that the evidence adduced at trial did not amount to clear and convincing proof of Cruzan’s desire to have hydration and nutrition withdrawn. The trial court had not adopted a clear and convincing evidence standard, and Cruzan’s observations that she did not want to live life as a “vegetable” did not deal in terms of withdrawal of medical treatment or of hydration and nutrition. 3. The Due Process Clause does not require a state to accept the “substituted judgment” of close family members in the absence of substantial proof that their views reflect the patient’s. This Court’s decision upholding a state’s favored treatment of traditional family relationships, Michael H. v. Gerald D., 491 U.S. 110, may not be turned into a constitutional requirement that a state must recognize the primacy of these relationships in a situation like this. Nor may a decision upholding a state’s right to permit family decision making, Parham v. J.R., 442 U.S.
584, be turned into a constitutional requirement that the state recognize such decision making.

Something to Consider

Read the entire Zablocki case and the concurring opinions. Do you find the due process or the equal protection analysis most compelling? Explain. (Follows Zablocki v. Redhail, 434 U.S. 374 (1978))
One thing is clear. The right to procreate is a fundamental right. Buck v. Bell was not expressly overruled in Skinner. Why do you think the Court avoided overruling Buck? Do you think that World War II and the Nazis’ concept of a master race had an impact on this decision? Explain. (Follows Skinner v. Oklahoma)
Review the concurring opinion written by Justice Goldberg found earlier in the chapter. Summarize what the justice wrote about the Ninth Amendment being the authority for the Court to protect nonenumerated rights. (Follows Griswold v. Connecticut)
Justice Douglas, in his concurring opinion in Eisenstadt, believed that the law should have been invalidated because (in his opinion) it violated the First Amendment. Read Justice Douglas’s concurring opinion and explain his reasoning. (Follows Eisenstadt v. Baird)

In Roe, Justice Blackmun stated: “This right of privacy, whether it be founded in the Fourteenth Amendment’s conception of personal liberty and restrictions upon state action, or . . . in the Ninth Amendment’s reservation of right to the people is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Why do you believe the Court chose to base this right to abortion under the Due Process Clause of the Fourteenth Amendment rather than the Ninth Amendment? (Follows Roe v. Wade)
Justice O’Connor cast the fifth vote for the outcome in Webster. She stated: “When the constitutional invalidity of a State’s abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.” Why do you believe Justice O’Connor was unwilling to overrule Roe? Consider Justice Scalia’s comment: “Avoiding the Roe question by deciding with this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so needlessly is to prolong this Court’s involvement in a field where the answers to the central questions are political rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly “broader- than-was- required-by-the-precise-facts” structure established by Roe v. Wade.” Consider these diverse viewpoints. (Follows Webster v. Reproductive Health Services)

Less than two decades passed between the Bowers (1986) and Lawrence (2003) decisions. Goodridge was also decided in 2003. How do you account for what appears to be a rapid shift in judicial reasoning in these cases? (Follows Goodridge v. Department of Public Health) “Whether or not Missouri’s clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation.” What state interests was Missouri seeking to protect in Cruzan? (Follows Cruzan v. Director Missouri Department of Health)