Griswold

1. Griswold • The Court talked about privacy in the marital relationship • “Would 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.” (next to last paragraph of Douglas opinion) • Was this really about a privacy right?Would it have been okay to prohibit the sale of contraceptives rather than their use? And was it really about marriage? • This case is really about the right to separate procreation from sexual relations. To be able to have sex without having children. Is that right mentioned at all in the case?

2. The meaning of Griswold • Later cases tell us that Griswold really was about sexual freedom • In Eisenstadt, note 2, the Court extended Griswold to single persons. Moreover, it did so under an equal protection theory. State could not treat married and unmarried persons differently. But if Griswoldrested on marital privacy, states could treat unmarried persons differently. • In both Eisenstadtand Carey (note 4), the Court struck down limits on distribution rather than simply use of contraceptives. No need to invade the privacy of the marital bedroom to enforce either of the laws being challenged. • Not surprisingly, we Griswoldis now characterized as having established a general right of access to contraception.

3. Roe v. Wade • Issue • Are the Texas criminal abortion statutes unconstitutional on their face? • Rule • Yes, a woman has a liberty right to privacy in this decision under the 14th Amendment • The government may interfere with this right to protect the health of the mother or the life of a child • Viability determined to be the compelling point at which the state may intervene for a child • Level of Scrutiny • Strict

4. Roe v. Wade • After the first trimester, the state may regulate abortion to preserve and protect maternal health • After viability, the state may prohibit abortion to promote its interest in the potential for human life • Abortion must always be available if “necessary to preserve the life or health of the mother” • last paragraph of majority opinion

5. Legal-ethical confusion • At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. (‘‘If the Constitution guarantees abortion, how can it be bad?’’—not an accurate line of thought, but a natural one.) (Scalia, J.)

6. Abortion post-Roe, pre-Casey • structuring informed consent dialogue (no) • waiting periods (no) • requirements that hospitals be used for second trimester abortions (no) • requirements for spousal consent (no) • requirements for parental consent for minors (yes, if judicial bypass) • refusals to fund abortions even when necessary to protect woman’s health (yes)

7. Casey • State may regulate abortion throughout pregnancy unless its regulation causes undue interference and has the purpose or effect of placing a substantial obstacle in the path of a woman’s choice to seek abortion • State may adopt regulations to protect the health of the woman • State may take measures to inform the woman’s choice and to persuade the woman to choose childbirth • Required information must be truthful and not misleading • State may prohibit abortion after viability as long as it permits abortion when necessary to preserve the life or health of the mother

8. Standard of Review from Roe to Casey

9. Abortion post-Casey • structuring informed consent dialogue (yes) • waiting periods (yes) • requirements that hospitals be used for second trimester abortions (probably not) • requirements for spousal consent (no) • requirements for parental consent for minors (yes, if judicial bypass) • refusals to fund abortions even when necessary to protect woman’s health (yes)