Planned Parenthood v. Casey (1992)  The reasoning of Roe is not defended -- there is no appeal to any supposed right of privacy.  In addition, Roe’s trimester system is rejected. Instead, viability becomes central: after viability, “the independent essence of the second life can now be the object of state protection.”

Liberty replaces privacy  Importance of precedent (stare decisis): “an entire generation has come of age free to assume Roe’s concept of liberty.”  Court must generate a specific rule: “it falls to us to give some real substance to the woman’s liberty to determine whether to carry the pregnancy to full term.

Limitations to liberty  State may encourage philosophical and social arguments, adoption, state assistance to pregnant women.  May inform a woman’s free choice -- but must not hinder it (before viability). No undue burden = “substantial obstacle”.  After viability, reaffirms Roe: may prohibit abortion except where necessary for the life or health of the mother.

Scalia’s Dissent  What makes this liberty Constitutionally protected? Nothing to do with whether it concerns my “concept of existence, of meaning, of the universe, and of the mystery of human life.” (Kennedy)  Not protected, for the same reason bigamy is not: –Not mentioned in Constitution. –Longstanding tradition of prohibition.

Scalia’s Dissent, cont.  Begs the question: is the fetus a living human being, or merely “potential life”. By what “reasoned judgment” does the Court reach this conclusion?  Many decisions that are “basic”, “intimate”, “deeply personal” can be criminalized: sodomy, bigamy, incest, suicide.

Lawrence v. Texas (2003)  Overturns Bowers. Kennedy writing the majority opinion, O’Connor concurring.  Sodomy is a liberty protected by due process in 14th amendment: –Tradition: “emerging awareness that liberty gives substantial protection to adults in deciding…in matters pertaining to sex.” –Appeal to European Court of Human Rights. –Stare decisis is not an “inexorable command”.

The “Mystery” passage from Planned Parenthood v. Casey  At the heart of liberty is the right to define one’s concept of existence, of the meaning of the universe, and of the mystery of human life.

Rights to privacy and equal protection also involved  Privacy progression: Griswold, Eisenstadt, Roe, Carey v. Population Services (1977) -- invalidated a law barring the distribution of contraceptives to persons under 16.  Also, the equal protection clause is relevant, as ruled in Romer v. Evans (1996).

Sodomy is not defined as a fundamental liberty  Kennedy nowhere asserts (contrary to Bowers) that there is a fundamental liberty to commit sodomy.  Consequently, the Texas law must pass only minimal scrutiny: a rational relation to a legitimate purpose.

Enforcing morality is no longer legitimate  “Our obligation is to define the liberty of all, not to mandate our own moral code.

O’Connor’s opinion  O’Connor stands by the reasoning in Bowers -- sodomy is not a fundamental liberty.  However, the Texas statute violates the equal protection clause: the conduct (sodomy) is “closely correlated with being homosexual”. The act is “directed toward gay persons as a class.”

No legitimate purpose  O’Connor does not claim that the classification of homosexual/ heterosexual is suspect. So, minimal scrutiny?  “Moral disapproval of a group cannot be a legitimate governmental interest… because legal classifications must not be drawn for the purpose of disadvantaging the group…”

Scalia’s Dissent  Nowhere does the Court in Lawrence declare sodomy to be a fundamental liberty, or subject the Texas law to strict scrutiny.  This effectively decrees the end of all moral legislation: “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity…”

The role of social dissent  In Planned Parenthood v. Casey, widespread social discontent with Roe was given as a reason for upholding Roe: to overrule under fire would subvert the Court’s legitimacy.  In Lawrence, social dissent from Bowers is given as reason for overturning it. No consistency!

Against O’Connor  Every law prohibiting any conduct whatsoever is directed against a class, namely, those more likely than average to engage in the forbidden act.  A law against public nudity targets conduct that is “closely correlated” with being a nudist.

Same Sex Marriage?  The Court claims the present case “does not involve whether the government must give formal recognition to any relationship that homosexual person seek to enter.”  Scalia: “Do not believe it.”

Enforcing Morality?  Debate between Lord Devlin and H.L.A. Hart  Defining “Harm”  Paternalistic limitations to liberty  Can we distinguish between moralistic and non-moralistic paternalism?

Lord Devlin’s Position  Devlin’s Three Questions: –Is there a public morality? –Does society have the right to use the law to enforce public morality? –If so, under what conditions?  Society is a community of ideas, held together by “the invisible bonds of common thought”.

Devlin’s Theory of Society  Justified by “a priori” argument, not empirical research.  Consequences: society has a right to foster and enforce a common morality, even by force of law, since without it, society itself cannot continue to exist.

Two conditions  To count as part of the common morality, it must be shared by the overwhelming majority, so as to constitute a view that can be presumed to be held by every “reasonable man”.  It must be taken to be part of society’s business, part of the social structure, and not a matter of purely private concern (like religious devotion).

Two further considerations  We must balance the public interest in common morality against the claims of privacy.  When the moral question concerns behavior occurring in private spaces (like the home), we must take into account the issue of fairness, since any enforcement is likely to be haphazard.

Hart’s Response  Hart distinguishes the “moderate” thesis of moralism from the “extreme” thesis.  According to the moderate thesis, morality should be enforced because doing so has good social consequences.  According to the extreme thesis, enforcing morality is good in itself.

Hart’s Charge  Hart accuses Devlin of confusing these two.  Devlin’s essay ostensibly supports the moderate thesis.  The moderate thesis requires empirical evidence of a causal connection.  Devlin’s essay offers no such evidence.

Defending Devlin  Must the law always offer empirical support of causal connection? Isn’t common sense, or the consensus of the wise, sometimes sufficient?  Hart himself accepts that society cannot function without a shared morality that discourages harm to others -- but offers no empirical support for this claim.

The Single, Seamless Web  Hart also attacks what he calls Devlin’s “undiscussed assumption”: that the shared morality forms a single web.  He argues that Devlin accepts some kind of slippery slope: if one part of the shared morality is weakened, the whole system is in danger of collapse.

The Public/Private Seam?  Hart suggests that we can segregate morality into two parts: that which concerns the private sexual conduct of consenting adults, and that which proscribes conduct injurious to others.  We can weaken, or even jetttison the former, without affecting the latter.

What does society have a right to defend?  Devlin: the whole system of shared morality, since a shared morality is essential to society.  Hart: only that part of today’s shared morality that is really essential to the continued existence of society. Therefore, not sexual morality.

Hart’s Two Assumptions  Hart assumes that there is a unique core of our shared morality that can be identified and that alone is necessary and sufficient for the survival of society.  This may be wrong - perhaps what’s necessary is that a certain fraction (half, two-thirds, 9/10) of our morality survive, but it doesn’t matter which part.

Hart’s Second Assumption  Hart assumes that sexual morality has nothing to do with the common bonds that sustain society.  In effect, he is arguing that we should treat sexuality as we treat religion.  Devlin emphasizes the importance of marriage as an essential part of the social structure.

Sexual Privacy vs. Marriage  We seem to face an inevitable choice: to treat all matters of sexuality, including marital arrangements, as part of the zone of privacy, or to treat all of it as a matter of legitimate social regulation.  If we follow Hart & Lawrence, no grounds for prohibiting gay marriage, polygamy, adult incest, prostitution, etc.

Defining “Harm”  Can anything besides damage to health, life or property count?  Offense: public sexual activity, expressions of racist ideas, pictures of aborted fetuses, or of victims of illegal abortions?  Frustration of other-directed preferences? (Stephen)

More possibilities  Weakening the social fabric by encouraging deviation from widely held norms?  Increased danger to others, through damage to one’s own character? (Drugs, pornography, gambling)  Increased burden on the charity, compassion of others?

Can we distinguish moralistic from non-moralistic paternalism?  Non-moralistic paternalism seems much less controversial: seat belts, helmets, FDA rules, medicine w/o license, no-smoking campaigns & taxes.  Is there a principled distinction? Historically, moralistic legislation was paternalistic: helping others to achieve true happiness by avoiding spiritual/moral damage to their souls.

One Proposal: Neutrality  Utilitarian neutrality: all desires, preferences cont equally.  Dworkin’s equal respect. All preferences count equally,except other-directed preferences, or preferences rooted in hatred.  Libertarain neutrality: the state must defend neutrally defined boundaries of property, with no interference with private choice within those boundaries.

Procedural Neutrality  The state must justify all coercive rules in terms that every citizen can understand and appreciate. No law may be justified in terms of controversial conceptions of religion, morality or human welfare.  Use only a “thin” conception of what is good (John Rawls).

Is neutrality a viable standard?  Interpreted strictly, it would seem to invalidate all coercive laws, including those against slavery, rape.  Interpreted loosely (in terms of what ideally rational persons could agree to), it would seem to be vacuous, since different people will define ideal rationality in different ways.