Homework: #7 for Monday FrontPage: Does the Constitution explicitly guarantee any of the following “rights”? Explain. Privacy? Abortion? Physician-assisted suicide? Gay marriage?

A penumbr(ell)a?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. How would you translate this amendment?

Purpose:  Why do you think the 9 th Amendment was added to the BoR?  To ensure that the rights and protections given Americans would not be limited to only those rights specifically written down in the Bill of Rights or Constitution.  Some Framers, especially Madison, believed that:  Including a specific list of rights/protections might actually be counterproductive, because rights not included might be infringed upon or denied in the future.  That to protect Americans, an amendment of “construction” should be included that would provide for additional rights/protections not yet mentioned.

 This amendment has come to form the basis of many of the most personal and controversial rights that Americans have been granted  The “creation” of these “new rights” typically involves combining rights already contained in the Bill of Rights:  “Bill of Rights Chemistry”… Adding together rights/protections, along with the 9 th amendment, to “create” new rights/protections

 Griswold was Director of the Planned Parenthood League of Connecticut.  She gave information, instruction, and advice to married couples concerning birth control.  Griswold was convicted under a Connecticut law which made it a crime to provide counseling and other medical treatment, to married persons for purposes of preventing conception.  She challenged the law, claiming that the law violated her Constitutional rights.  Question Presented: Does the Constitution explicitly guarantee the right to a married couple’s access to information about contraceptives?  No, the Constitution makes no mention of the “right to marital, or other, privacy

 However, the Supreme Court determined that Connecticut’s law was Unconstitutional 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. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.  Thus, this decision “created” the right to privacy The Right to PRIVACY = 9 th + 4 th + 3 rd + 1 st

 Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. Roe challenged the law, claiming that it violated her personal rights.  Question Presented:  Does the Constitution explicity prevent a state from making laws that restrict a “private” matter (in this case, an abortion)? NO, the Constitution makes no mention of abortion. Therefore, it would seem that states are free to restrict this practice.

 The Supreme Court determined that the Texas law was… Unconstitutional  The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourth and Ninth Amendments.  The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.  Effect of the decision:  The Supreme Court essentially forced states to permit first trimester abortions. The second and third trimesters were still open for limitation.  Thus, the Constitution prevents states from infringing upon the right to an abortion. As with guns, “common sense” limitations are permitted, however.

 Gonzalez vs. Carhart  Establishes that the latest federal Partial Birth Abortion ban is constitutional  State-by-state response  Many states adopt time frame whereby abortion is outlawed after certain periods of time

Homework: 14 th questions due Thursday; test Monday FrontPage: Grab a computer – one for each person.

 Dr. Harold Glucksberg, a physician—along with four other physicians, three terminally ill patients, and the non-profit organization, Compassion in Dying, counseling those considering assisted-suicide— challenged Washington state's ban against assisted suicide in the Natural Death Act of  They claimed that assisted suicide was a liberty interest protected by the Due Process Clause of the Fifth (and the Fourteenth) Amendment to the United States Constitution.  Question Presented: Whether the protection of the Due Process Clause included a right to commit suicide, and therefore commit suicide with another's assistance.  Does the Constitution (anywhere) make mention of a “right” to physician-assisted suicide?  No, it makes no mention of this “right”.

 The Decision:  The Court held that because assisted-suicide is not a fundamental liberty interest, it was not protected under the 14th Amendment.  Assisted-suicide, the court found, had been frowned upon for centuries and a majority of the States had similar bans on assisted suicide.  The Court felt that the ban was rational in that it furthered such compelling state interests as the preservation of human life and the protection of the mentally ill and disabled from medical malpractice and coercion. It also prevented those moved to end their lives because of financial or psychological complications.  The Court also felt that if the Court declared physician- assisted suicide a constitutionally protected right, they would start down the path to voluntary and perhaps involuntary euthanasia.  The Effect: PAS is not a “right” protected by the 5 th or 14 th amendment…

 In 1994 Oregon enacted the Death with Dignity Act, the first state law authorizing physicians to prescribe lethal doses of controlled substances to terminally ill patients.  Attorney General John Ashcroft declared in 2001 that physician-assisted suicide violated the federal Controlled Substances Act (CSA), and that he would prosecute doctors under the federal law. Oregon challenged this action by the federal government. Question Presented: Does the federal government have the right to prevent PAS?  At the same time, we might ask if PAS is a “right”.

 The Supreme Court determined that the federal government’s actions were.. Unconstitutional  Effect of the decision:  Oregon’s assisted suicide law was allowed to stand; the Court essentially said that states could legislate either way. **To this day, only 6 “jurisdictions” in the world allow for euthanasia Oregon, Washington, Vermont, Montana, Belgium and the Netherlands. PA and 45 other states have laws that make physician-assisted suicide essentially the same as a murder.  The question of whether PAS is a right that cannot be denied was not addressed

 The federal Defense of Marriage Act (DOMA)  Defines marriage as a legal union between one man and one woman Note: PA has adopted DOMA as its own law regarding marriage; and also an amendment is pending in the state legislature to define marriage in the same way. It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.  This law was recently challenged in the case of Windsor vs. US

 Federal DOMA challenge: Windsor vs. US  DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law. The Court held that the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection.  State ban challenge: Hollingsworth vs. Perry  Hollingsworth v. Perry (2013) held that in line with prior precedent, the official sponsors of a ballot initiative measure did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so. As a result of this ruling, the district court trial decision from 2010, which found that the voter-approved California Proposition 8 had been unconstitutional, in effect allowed same-sex marriage in that state to resume.