Privacy? Abortion? Physician-assisted suicide? FrontPage: Does the Constitution explicitly guarantee any of the following “rights”? Privacy? Abortion? Physician-assisted suicide? Gay marriage? Homework: #7 and Obergefell Dissent for tomorrow

The 9th Amendment and the right to privacy A penumbr(ell)a?

How would you translate this amendment? The 9th Amendment 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?

The Purpose of the 9th: Purpose: Why was the 9th Amendment was added to the BoR? Why might this have worried some of the Framers? What rights might be included under the 9th? Is anything NOT a possible right?

The Purpose of the 9th: Purpose: Why was the 9th 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.

The 9th In Practice: 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 9th amendment, to “create” new rights/protections

Griswold vs. Connecticut (1965) 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  

Griswold vs. Connecticut (1965) 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 = 9th + 4th + 3rd + 1st    

Roe vs. Wade (1972)  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.  

Roe vs. Wade (1972) 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.  

More recent action on Abortion 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

The 9th amendment and euthanasia

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

Washington vs. Glucksberg (1997) 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 1979. 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”.

Washington vs. Glucksberg (1997) The Decision: The Court held that because assisted-suicide is not a fundamental liberty interest, it was not protected under the 14th Amendment. The Court felt 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/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 PAS a constitutionally protected right, it would start down the path to voluntary and perhaps involuntary euthanasia. The Effect: PAS is NOT a “right” protected by the 5th or 14th amendment…

Oregon vs. Gonzales (2005) 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”.

Oregon vs. Gonzales (2005) 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