Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. The concept has come to include disparate lines of cases, and various labels have been applied to the rights protected, including
liberty interests and
incorporated rights. The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law, 1 serves as the basis for some of the most significant constitutional holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the
incorporation of fundamental rights. 2 Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion, 3 remain controversial.
Determining Noneconomic Substantive Due Process Rights
More so than other areas of law, noneconomic substantive due process seems to have started with few fixed precepts. Were the rights being protected property rights (and thus really protected by economic due process) or were they individual liberties? What standard of review needed to be applied? What were the parameters of such rights once identified? For instance, did a right of
privacy relate to protecting physical spaces such as one’s home, or was it related to the issue of autonomy to make private, intimate decisions? Once a right was identified, often using abstract labels, how far could such an abstraction be extended? Did protecting the
privacy of the decisions whether to have a family also include the right to make decisions regarding sexual intimacy? Although many of these issues have been resolved, others remain.
One of the earliest formulations of noneconomic substantive due process was the right to privacy. This right was first proposed by Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article 4 as a unifying theme to various common law protections of the
right to be left alone, including the developing laws of nuisance, libel, search and seizure, and copyright. According to the authors,
the right to life has come to mean the right to enjoy life, – the right to be let alone . . . . This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
The concepts put forth in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice Brandeis regarding the Fourth Amendment. 5 Then, in the 1920s, at the heyday of economic substantive due process, the Court ruled in two cases that, although nominally involving the protection of property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska, 6 the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade. Two years later, in Pierce v. Society of Sisters, 7 the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties. 8 Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of
Without doubt, Justice McReynolds said in Meyer, liberty
denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. 9 The right of the parents to have their children instructed in a foreign language was
within the liberty of the [Fourteenth] Amendment. 10 Meyer was then relied on in Pierce to assert that the statute there
unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. 11
Although the Supreme Court continued to define noneconomic liberty broadly in dicta, 12 this new concept was to have little impact for decades. 13 Finally, in 1967, in Loving v. Virginia, 14 the Court held that a statute prohibiting interracial marriage denied substantive due process. Marriage was termed
one of the ‘basic civil rights of man’ and a
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men, and the classification of marriage rights on a racial basis was
unsupportable. Further development of this line of cases was slowed by the expanded application of the Bill of Rights to the states, which afforded the Court an alternative ground to void state policies. 15
Despite the Court’s increasing willingness to overturn state legislation, the basis and standard of review that the Court would use to review infringements on
fundamental freedoms were not always clear. In Poe v. Ullman, 16 for instance, the Court dismissed as non-justiciable a suit challenging a Connecticut statute banning the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness – the same lenient standard he would have applied to test economic legislation. 17 Applying a lengthy analysis, Justice Harlan concluded that the statute in question infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court in Griswold v. Connecticut, 18 a majority of the Justices rejected reliance on substantive due process 19 and instead decided it on another basis – that the statute was an invasion of privacy, which was a non-textual
penumbral ri 20ght protected by a matrix of constitutional provisions. Not only was this right to be protected again governmental intrusion, but there was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom.
The apparent lack of deference to state interests in Griswold was borne out in the early abortion cases, discussed in detail below, which required the showing of a
compelling state interest to interfere with a woman’s right to terminate a pregnancy. 21 Yet, in other contexts, the Court appears to have continued to use a
reasonableness standard. 22 More recently, the Court has complicated the issue further (again in the abortion context) by the addition of yet another standard,
undue burden. 23
A further problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike. 24 However, in Bowers v. Hardwick, 25 the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples. 26 Then, in Lawrence v. Texas, 27 the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.
More broadly, in Washington v. Glucksberg, the Court, in an effort to guide and
restrain a court’s determination of the scope of substantive due process rights, held that the concept of
liberty protected under the Due Process Clause should first be understood to protect only those rights that are
deeply rooted in this Nation’s history and tradition. 28 Moreover, the Court in Glucksberg required a
careful description of fundamental rights that would be grounded in specific historical practices and traditions that serve as
crucial guideposts for responsible decisionmaking. 29 However, the Court, in Obergefell v. Hodges largely departed from Glucksberg’s formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex. 30 Instead, the Obergefell Court recognized that fundamental rights do not
come from ancient sources alone and instead must be viewed in light of evolving social norms and in a
comprehensive manner. 31 For the Obergefell Court, the two-part test relied on in Glucksberg—relying on history as a central guide for constitutional liberty protections and requiring a
careful description of the right in question—was
inconsistent with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as
received practices could serve as their own continued justification and new groups could not invoke rights once denied. 32
Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man. 33 While recognizing the protection traditionally afforded a father, Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i.e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection, arguing that courts should limit consideration to
the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. 34 Dissenting Justice Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should
ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.’ 35
In Roe v. Wade, 36 the Court established a right of personal privacy protected by the Due Process Clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review. 37 Then, the Court established that the word
person as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection. 38 Finally, the Court summarily announced that the
Fourteenth Amendment’s concept of personal liberty and restrictions upon state action includes
a right of personal privacy, or a guarantee of certain areas or zones of privacy 39 and that
[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. 40
It was also significant that the Court held this right of privacy to be
fundamental and, drawing upon the strict standard of review found in equal protection litigation, held that the Due Process Clause required that any limits on this right be justified only by a
compelling state interest and be narrowly drawn to express only the legitimate state interests at stake. 41 Assessing the possible interests of the states, the Court rejected justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions as unsupported in the record and ill-served by the laws in question. Further, the state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue of when life begins. Two valid state interests were, however, recognized.
[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.' 42
Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother’s womb, the Court found that the state has no
compelling interest in the first trimester and
the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. 43 In the intermediate trimester, the danger to the woman increases and the state may therefore regulate the abortion procedure
to the extent that the regulation reasonably relates to the preservation and protection of maternal health, but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded. 44
With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. 45
Thus, the Court concluded that
(a) for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician; (b) for the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; (c) for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions. 46 These regulations required that an abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician’s judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the state’s interest in maternal health because they were not reasonably related to that interest. 47 But a clause making the performance of an abortion a crime except when it is based upon the doctor’s
best clinical judgment that an abortion is necessary was upheld against vagueness attack and was further held to benefit women seeking abortions on the grounds that the doctor could use his best clinical judgment in light of all the attendant circumstances. 48
After Roe, various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion. 49 The Court, however, held that (1) requiring spousal consent was an attempt by the state to delegate a veto power over the decision of the woman and her doctor that the state itself could not exercise, 50 (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy, 51 and (3) that a criminal provision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe. 52 The Court sustained provisions that required the woman’s written consent to an abortion with assurances that it is informed and freely given, and the Court also upheld mandatory reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks. 53
In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing
a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure. 54 The Court held, however, that a state may require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not
depart from accepted medical practice. 55 Various
informed consent requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman’s decision. 56 The Court also invalidated a 24-hour waiting period following a woman’s written, informed consent. 57
On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery. 58 The Court also upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus. 59 Further, the Court refused to extend Roe to require states to pay for abortions for the indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose. 60
The equal protection discussion in the public funding case bears closer examination because of its significance for later cases. The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to childbirth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion – indigency – was not created or exacerbated by the government.
In reaching this finding the Court held that, while a state-created obstacle need not be absolute to be impermissible, it must at a minimum
unduly burden the right to terminate a pregnancy. And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right. 61 What is interesting about this holding is that the
undue burden standard was to take on new significance when the Court began raising questions about the scope and even the legitimacy of Roe.
Although the Court expressly reaffirmed Roe v. Wade in 1983, 62 its 1989 decision in Webster v. Reproductive Health Services 63 signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination. 64 This retrenchment was also apparent in two 1990 cases in which the Court upheld both one-parent and two-parent notification requirements. 65
Webster, however, exposed a split in the Court’s approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach sought to water down Roe by applying a less stringent standard of review. For instance, the plurality found the viability testing requirement valid because it
permissibly furthers the State’s interest in protecting potential human life. 66 Justice O’Connor, however, concurred in the result based on her view that the requirement did not impose
an undue burden on a woman’s right to an abortion, while Justice Scalia’s concurrence urged that Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did
not reasonably further any legitimate state interest. 67
Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life after viability, and hence did not challenge Roe’s ‘trimester framework. 68 Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest
should come into existence only at the point of viability; 69 Justice O’Connor repeated her view that the trimester approach is
problematic; 70 and, as mentioned, Justice Scalia would have done away with Roe altogether.
Three years later, however, the Court invoked principles of stare decisis to reaffirm Roe’s
essential holding, although it had by now abandoned the trimester approach and adopted Justice O’Connor’s
undue burden test and Roe’s
essential holding. 71 According to the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 72 the right to abortion has three parts.
First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
This restatement of Roe’s essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability, however, still marked
the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions, 73 but less burdensome regulations could be applied before viability.
What is at stake, the three-Justice plurality asserted,
is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose. Thus, unless an undue burden is imposed, states may adopt measures
designed to persuade [a woman] to choose childbirth over abortion. 74
Casey did, however, overturn earlier decisions striking down informed consent and 24-hour waiting periods. 75 Given the state’s legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying
undue burden analysis, the three-Justice plurality found these requirements permissible. 76After The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.
On the other hand, the Court 77 distinguished Pennsylvania’s spousal notification provision as constituting an undue burden on a woman’s right to choose an abortion.
A State may not give to a man the kind of dominion over his wife that parents exercise over their children (and that men exercised over their wives at common law). 78 Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e.g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife’s liberty to decide whether to bear a child.
The passage of various state laws restricting so-called
partial birth abortions gave observers an opportunity to see if the
undue burden standard was in fact likely to lead to a major curtailment of the right to obtain an abortion. In Stenberg v. Carhart, 79 the Court reviewed a Nebraska statute that forbade
partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery. Although the state argued that the statute was directed only at an infrequently used procedure referred to as an
intact dilation and excavation, the Court found that the statute could be interpreted to include the far more common procedure of
dilation and excavation. 80 The Court also noted that the prohibition appeared to apply to abortions performed by these procedures throughout a pregnancy, including before viability of the fetus, and that the sole exception in the statute was to allow an abortion that was necessary to preserve the life of the mother. 81 Thus, the statute brought into question both the distinction maintained in Casey between pre-viability and post-viability abortions, and the oft-repeated language from Roe that provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or the health of a pregnant woman. 82 The Court, however, reaffirmed the central tenets of its previous abortion decisions, striking down the Nebraska law because its possible application to pre-viability abortions was too broad, and the exception for threats to the life of the mother was too narrow. 83
Only seven years later, however, the Supreme Court decided Gonzales v. Carhart, 84 which, although not formally overruling Stenberg, appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales, the Court, by a 5-4 vote, 85 upheld a federal criminal statute that prohibited an overt act to
kill a fetus where it had been intentionally
deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother. 86 The Court distinguished this federal statute from the Nebraska statute that it had struck down in Stenberg, holding that the federal statute applied only to the intentional performance of the less-common
intact dilation and excavation. The Court found that the federal statute was not unconstitutionally vague because it provided
anatomical landmarks that provided doctors with a reasonable opportunity to know what conduct it prohibited. 87 Further, the scienter requirement (that delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns. 88
In a departure from the reasoning of Stenberg, the Court held that the failure of the federal statute to provide a health exception 89 was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. Noting that the Court has given
state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty, the Court held that, at least in the context of a facial challenge, such an exception was not needed where
[t]here is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women. 90 The Court did, however, leave open the possibility that as-applied challenges could still be made in individual cases. 91
As in Stenberg, the prohibition considered in Gonzales extended to the performance of an abortion before the fetus was viable, thus directly raising the question of whether the statute imposed an
undue burden on the right to obtain an abortion. Unlike the statute in Stenberg, however, the ban in Gonzales was limited to the far less common
intact dilation and excavation procedure, and consequently did not impose the same burden as the Nebraska statute. The Court also found that there was a
rational basis for the limitation, including governmental interests in the expression of
respect for the dignity of human life,
protecting the integrity and ethics of the medical profession, and the creation of a
dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. 92
The Court revisited the question of whether particular restrictions place a
substantial obstacle in the path of women seeking a pre-viability abortion and constitute an
undue burden on abortion access in its 2016 decision in Whole Woman’s Health v. Hellerstedt. 93 At issue in Whole Woman’s Health was a Texas law that required (1) physicians performing or inducing abortions to have active admitting privileges at a hospital located not more than thirty miles from the facility; and (2) the facility itself to meet the minimum standards for ambulatory surgical centers under Texas law. 94 Texas asserted that these requirements served various purposes related to women’s health and the safety of abortion procedures, including ensuring that women have easy access to a hospital should complications arise during an abortion procedure and that abortion facilities meet heightened health and safety standards. 95
In reviewing Texas’s law, the Whole Woman’s Health Court began by clarifying the underlying
undue burden standard established in Casey. First, the Court noted that the relevant standard from Casey requires that courts engage in a balancing test to determine whether a law amounts to an unconstitutional restriction on abortion access by considering the
burdens a law imposes on abortion access together with the benefits those laws confer. 96 As a consequence, the Whole Woman’s Health articulation of the undue burden standard necessarily requires that courts
consider the existence or nonexistence of medical benefits when considering whether a regulation constitutes an undue burden. 97 In such a consideration, a reviewing court, when evaluating an abortion regulation purporting to protect woman’s health, may need to closely scrutinize (1) the relative value of the protections afforded under the new law when compared to those prior to enactment 98 and (2) health regulations with respect to comparable medical procedures. 99 Second, the Whole Woman’s Health decision rejected the argument that judicial scrutiny of abortion regulations was akin to rational basis review, 100 concluding that courts should not defer to legislatures when resolving questions of medical uncertainty that arise with respect to abortion regulations. 101 Instead, the Court found that reviewing courts are permitted to place
considerable weight upon evidence and argument presented in judicial proceedings when evaluating legislation under the undue burden standard, notwithstanding contrary conclusions by the legislature. 102
Applying these standards, the Whole Woman’s Health Court viewed the alleged benefits of the Texas requirements as inadequate to justify the challenged provisions under the precedent of Casey, given both the burdens they imposed upon women’s access to abortion and the benefits provided. 103 Specifically as to the admitting privileges requirement, the Court determined that nothing in the underlying record showed that this requirement
advanced Texas’s legitimate interest in protecting women’s health in any significant way as compared to Texas’s previous requirement that abortion clinics have a
working arrangement with a doctor with admitting privileges. 104 In particular, the Court rejected the argument that the admitting privileges requirements were justified to provide an
extra layer of protection against abusive and unsafe abortion facilities, as the Court concluded that
[d]etermined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. 105 On the contrary, in the Court’s view, the evidentiary record suggested that the admitting-privileges requirement placed a substantial obstacle in the path of women’s access to abortion because (1) of the temporal proximity between the imposition of the requirement and the closing of a number of clinics once the requirement was enforced; 106 and (2) the necessary consequence of the requirement of foreclosing abortion providers from obtaining such privileges for reasons having
nothing to do with ability to perform medical procedures. 107 In the view of the Court, the resulting facility closures that the Court attributed to the first challenged requirement meant fewer doctors, longer wait times, and increased crowding for women at the remaining facilities, and the closures also increased driving distances to an abortion clinic for some women, amounting to an undue burden. 108
Similarly as to the surgical-center requirement, the Whole Woman’s Health Court viewed the record as evidencing that the requirement
provides no benefits in the context of abortions produced through medication and was
inappropriate as to surgical abortions. 109 In so doing, the Court also noted disparities between the treatment of abortion facilities and facilities providing other medical procedures, such as colonoscopies, which the evidence suggested had greater risks than abortions. 110 The Court viewed the underlying record as demonstrating that the surgical-center requirement would also have further reduced the number of abortion facilities in Texas to seven or eight and, in so doing, would have burdened women’s access to abortion in the same way as the admitting-privileges requirement (e.g., creating crowding, increasing driving distances). 111 Ultimately, the Court struck down the two provisions in the Texas law, concluding that the regulations in question imposed an undue burden on a
large fraction of women for whom the provisions are an
actual restriction. 112
The use of strict scrutiny to review intrusions on personal liberties in Roe v. Wade seemed to portend the Court’s striking down many other governmental restraints upon personal activities. These developments have not occurred, however, as the Court has been relatively cautious in extending the right to privacy. Part of the reason that the Court may have been slow to extend the rationale of Roe to other contexts was that
privacy or the right
to be let alone appears to encompass a number of different concepts arising from different parts of the Constitution, and the same combination of privacy rights and competing governmental interests are not necessarily implicated in other types of
For instance, the term
privacy itself seems to encompass at least two different but related issues. First, it relates to protecting against disclosure of personal information to the outside world, i.e., the right of individuals to determine how much and what information about themselves is to be revealed to others. 113 Second, it relates inward toward notions of personal autonomy, i.e., the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences. 114 These dual concepts, here referred to as
informational privacy and
personal autonomy, can easily arise in the same case, as government regulation of personal behavior can limit personal autonomy, while investigating and prosecuting such behavior can expose it to public scrutiny. Unfortunately, some of the Court’s cases identified violations of a right of privacy without necessarily making this distinction clear. While the main thrust of the Court’s fundamental-rights analysis appears to emphasize the personal autonomy aspect of privacy, now often phrased as
liberty interests, a clear analytical framework for parsing of these two concepts in different contexts has not yet been established.
Another reason that
privacy is difficult to define is that the right appears to arise from multiple sources. For instance, the Court first identified issues regarding informational privacy as specifically tied to various provisions of Bill of Rights, including the First and Fourth Amendments. In Griswold v. Connecticut, 115 however, Justice Douglas found an independent right of privacy in the
penumbras of these and other constitutional provisions. Although the parameters and limits of the right to privacy were not well delineated by that decision, which struck down a statute banning married couples from using contraceptives, the right appeared to be based on the notion that the government should not be allowed to gather information about private, personal activities. 116 However, years later, when the closely related abortion cases were decided, the right to privacy being discussed was now characterized as a
liberty interest protected under the Due Process Clause of the Fourteenth Amendment, 117 and the basis for the right identified was more consistent with a concern for personal autonomy.
After Griswold, the Court had several opportunities to address and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal information. 118 For example, in United States v. Miller, 119 the Court, in evaluating the right of privacy of depositors to restrict government access to cancelled checks maintained by the bank, relied on whether there was an expectation of privacy under the Fourth Amendment. 120 Also, the Court has held that First Amendment itself affords some limitation upon governmental acquisition of information, although only where the exposure of such information would violate freedom of association or the like. 121
Similarly, in Fisher v. United States, 122 the Court held that the Fifth Amendment’s Self-incrimination Clause did not prevent the IRS from obtaining income tax records prepared by accountants and in the hands of either the taxpayer or his attorney, no matter how incriminating, because the Amendment only protects against compelled testimonial self-incrimination. The Court noted that it
has never suggested that every invasion of privacy violates the privilege. Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence that, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort. 123 Furthermore, it wrote,
[w]e cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy – a word not mentioned in its text and a concept directly addressed in the Fourth Amendment. 124
So what remains of informational privacy? A cryptic opinion in Whalen v. Roe 125 may indicate the Court’s continuing willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs with abuse potential, and a centralized computer record-keeping system through which prescriptions, including patient identification, could be stored. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to
pose a sufficiently grievous threat to either interest to establish a constitutional violation. 126 Lower court cases have raised substantial questions as to whether this case established a
fundamental right to informational privacy, and instead found that some as yet unspecified balancing test or intermediate level of scrutiny was at play. 127
More than two decades after Whalen, the Court remains ambivalent about whether such a privacy right exists. In its 2011 decision in NASA v. Nelson, the Supreme Court unanimously ruled against 28 NASA workers who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights. 128 In so doing, the Court assumed without deciding that a right to informational privacy could be protected by the Constitution and instead held that the right does not prevent the government from asking reasonable questions in light of the government’s interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures. 129 As a result, the questions about the scope of the right to informational privacy suggested by Whalen remain.
The Court has also briefly considered yet another aspect of privacy — the idea that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home. In Stanley v. Georgia, 130 the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues. In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns. 131 Nonetheless, the Court based its decision upon a person’s protected right to receive what information and ideas he wishes, which derives from the
right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy, 132 and from the failure of the state to either justify protecting an individual from himself or to show empirical proof of such activity harming society. 133
The potential significance of Stanley was enormous, as any number of illegal personal activities, such as drug use or illegal sex acts, could arguably be practiced in the privacy of one’s home with little apparent effect on others. Stanley, however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home. 134 In Paris Adult Theatre I v. Slaton, 135 which upheld the government’s power to prevent the showing of obscene material in an adult theater, the Court recognized that governmental interests in regulating private conduct could include the promotion of individual character and public morality, and improvement of the quality of life and
tone of society.
It is argued that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice – those in politics, religion, and expression of ideas – are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. 136
Furthermore, continued the Court in Paris Adult Theatre I,
[o]ur Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.’ The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States’ ‘right . . . to maintain a decent society.’ 137
Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Hardwick. 138 The Court in Bowers, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley did not implicitly create protection for
voluntary sexual conduct [in the home] between consenting adults. 139 Instead, the Court found Stanley
firmly grounded in the First Amendment, 140 and noted that extending the reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between consenting adults, including adultery, incest, and other sexual crimes. Although Bowers has since been overruled by Lawrence v. Texas 141 based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places.
So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior.
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-54; id. at 460, 463-65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra. 142
Despite the limiting language of Roe, the concept of privacy still retained sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services Int'l, 143 recognition of the
constitutional protection of individual autonomy in matters of childbearing led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16. 144 The Court significantly extended the Griswold-Baird line of cases so as to make the
decision whether or not to beget or bear a child a
constitutionally protected right of privacy interest that government may not burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests.
For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick, 145 where the Court by a 5-4 vote roundly rejected the suggestion that the privacy cases protecting
family, marriage, or procreation extend protection to private consensual homosexual sodomy, 146 and also rejected the more comprehensive claim that the privacy cases
stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription. 147 Heavy reliance was placed on the fact that prohibitions on sodomy have
ancient roots, and on the fact that half of the states still prohibited the practice. 148 The privacy of the home does not protect all behavior from state regulation, and the Court was
unwilling to start down [the] road of immunizing
voluntary sexual conduct between consenting adults. 149 Interestingly, Justice Blackmun, in dissent, was most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited. 150
Yet, Lawrence v. Texas, 151 by overruling Bowers, brought the outer limits of noneconomic substantive due process into question by once again using the language of
privacy rights. Citing the line of personal autonomy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals
seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. 152
Although it quarreled with the Court's finding in Bowers v. Hardwick that the proscription against homosexual behavior had
ancient roots, Lawrence did not attempt to establish that such behavior was in fact historically condoned. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. Although the Court seems to recognize that a state may have an interest in regulating personal relationships where there is a threat of
injury to a person or abuse of an institution the law protects, 153 it also seems to reject reliance on historical notions of morality as guides to what personal relationships are to be protected. 154 Thus, the parameters for regulation of sexual conduct remain unclear.
For instance, the extent to which the government may regulate the sexual activities of minors has not been established. 155 Analysis of this questions is hampered, however, because the Court has still not explained what about the particular facets of human relationships – marriage, family, procreation – gives rise to a protected liberty, and how indeed these factors vary significantly enough from other human relationships. The Court’s observation in Roe v. Wade
that only personal rights that can be deemed 'fundamental' are included in this guarantee of personal privacy, occasioning justification by a
compelling interest, 156 provides little elucidation. 157
Despite the Court's decision in Lawrence, there is a question as to whether the development of noneconomic substantive due process will proceed under an expansive right of
privacy or under the more limited
liberty set out in Roe. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is also now settled to be a
liberty protected under the due process clauses, however, the analytical significance of denominating the particular right or interest as an element of privacy seems open to question.
Starting with Meyer and Pierce, 158 the Court has held that
the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. 159 For instance, the right to marry is a fundamental right protected by the Due Process Clause, 160 and only
reasonable regulations of marriage may be imposed. 161 Thus, the Court has held that a state may not deny the right to marry to someone who has failed to meet a child support obligation, as the state already has numerous other means for exacting compliance with support obligations. 162 In fact, any regulation that affects the ability to form, maintain, dissolve, or resolve conflicts within a family is subject to rigorous judicial scrutiny.
In 2015, in Obergefell v. Hodges, the Supreme Court clarified that the
right to marry applies with
equal force to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. 163 In so holding, the Court recognized marriage as being an institution of
both continuity and change, and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry. 164 More broadly, the Obergefell Court recognized that the right to marry is grounded in four
principles and traditions. These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families; 165 and (4) marriage is essential to the nation’s social order, because it is at the heart of many legal benefits. 166 With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately
stigma[tized] those couples and any children resulting from such partnerships. 167 Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed
natural, such a limitation was inconsistent with the right to marriage inherent in the
liberty of the person as protected by the Fourteenth Amendment. 168 The open question that remains respecting the substantive due process right to marriage post-Obergefell is whether the right of marriage, as broadly envisioned by the Court in the 2015 case, can extend to protect and require state recognition of other committed, autonomous relationships, such as polyamorous relationships. 169
There is also a constitutional right to live together as a family, 170 and this right is not limited to the nuclear family. Thus, a neighborhood that is zoned for single-family occupancy, and that defines
family so as to prevent a grandmother from caring for two grandchildren of different children, was found to violate the Due Process Clause. 171 And the concept of
family may extend beyond the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited. 172 On the other hand, the Court has held that a child born to a married woman living with her husband is that husband's child is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights. 173
The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children’s rights. 174 The Court has, however, imposed limits on the ability of a court to require that children be made available for visitation with grandparents and other third parties. In Troxel v. Granville, 175 the Court evaluated a Washington State law that allowed
any person to petition a court
at any time to obtain visitation rights whenever visitation
may serve the best interests of a child. Under this law, a child’s grandparents were awarded more visitation with a child than was desired by the sole surviving parent. A plurality of the Court, noting the
fundamental rights of parents to make decisions concerning the care, custody and control of their children, 176 reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the best interests of a child.
Liberty Interests of People with Mental Disabilities: Civil Commitment and Treatment
The recognition of liberty rights for people with mental disabilities who are involuntarily committed or who voluntarily seek commitment to public institutions is potentially a major development in substantive due process. The states, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others. 177 A state, however,
cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. 178 Moreover, a person who is constitutionally confined
enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests. 179 Influential lower court decisions have also found a significant right to treatment 180 or "training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints" 181 although the Supreme Court’s approach in this area has been tentative.
For instance, in Youngberg v. Romeo, the Court recognized a liberty right to
minimally adequate or reasonable training to ensure safety and freedom from undue restraint. 182 Although the lower court had agreed that residents at a state mental hospital are entitled to
such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit, 183 the Supreme Court found that the plaintiff had reduced his claim to
training related to safety and freedom from restraints. 184 But the Court’s concern for federalism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower federal courts must defer to professional decision-making to determine what level of care was adequate. Professional decisions are presumptively valid and liability can be imposed
only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment. 185 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures. 186
The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks, 187 the Court upheld a Kansas law that allowed civil commitment without a showing of
mental illness, so that a defendant diagnosed as a pedophile could be committed based on his having a
mental abnormality that made him
likely to engage in acts of sexual violence. Although the Court minimized the use of this expanded nomenclature, 188 the concept of
mental abnormality appears both more encompassing and less defined than the concept of
mental illness. It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other recidivists such as drug offenders. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior. 189
Still other issues await exploration. 190 Additionally, federal legislation is becoming extensive, 191 and state legislative and judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests that the Due Process Clause protects. 192
Right to Die
Although the popular term
right to die has been used to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, some distinct and some overlapping. For instance,
right to die could include issues of suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process). Recently, a new category has been suggested – physician-assisted suicide – that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician.
There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens. 193 On the other hand, the right of a seriously ill person to terminate life-sustaining medical treatment has been addressed, but not squarely faced. In Cruzan v. Director, Missouri Department of Health, 194 the Court, rather than directly addressing the issue,
a competent person [has] a constitutionally protected right to refuse lifesaving hydration and nutrition. 195 More importantly, however, a majority of the Justices separately declared that such a liberty interest exists. 196 Yet, it is not clear how actively the Court would seek to protect this right from state regulation.
In Cruzan, which involved a patient in a persistent vegetative state, the Court upheld a state requirement that there must be
clear and convincing evidence of a patient’s previously manifested wishes before nutrition and hydration could be withdrawn. Despite the existence of a presumed due process right, the Court held that a state is not required to follow the judgment of the family, the guardian, or
anyone but the patient herself in making this decision. 197 Thus, in the absence of clear and convincing evidence that the patient had expressed an interest not to be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her, the state may refuse to allow withdrawal of nutrition and hydration. 198
Despite the Court’s acceptance of such state requirements, the implications of the case are significant. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized. 199 However, the Court made clear in a subsequent case, Washington v. Glucksberg, 200 that it intends to draw a line between withdrawal of medical treatment and more active forms of intervention.
In Glucksberg, the Supreme Court rejected an argument that the Due Process Clause provides a terminally ill individual the right to seek and obtain a physician’s aid in committing suicide. Reviewing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with
utmost care before breaking new ground in the area of liberty interests. 201 The Court pointed out that suicide and assisted suicide have long been disfavored by the American judicial system, and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court rejected the applicability of Cruzan and other liberty interest cases, 202 noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia. 203