Fundamental Rights Under Privacy in the USA - …

1 Jul 2012 Page 1 of 26 Fundamental RightsUnder Privacy in the USAC opyright 1998, 2004-2005 by Ronald B. StandlerNo copyright claimed for works of the copyright claimed for quotations from any source, except for selection of such , Bowers, Boyd, Carrie Buck, Carey, case, cases, Comstock, Constitution,contraception, court , courts, Eisenstadt, Griswold, Katz, law, legal, marriage,medical, Privacy , private, procreation, right, Rights , Roe, Skinner, Stanley, ,USA, WadeTable of ContentsIntroduction .. 21. Rearing Children .. 22. Procreation .. 4sterilization .. 4contraception .. 7abortion .. 93. Marriage and Family Relationships .. 114. Privacy in Home.

2 145. Right to Refuse Medical Treatment .. 17children .. supreme court cases .. 196. Reasonable Expectation Test .. 217. supreme court Unwilling to Expand Privacy .. 22 deeply rooted in history ? .. 23conclusion .. Jul 2012 Page 2 of 26 IntroductionThis essay is an annotated list of supreme court cases involving Privacy . The supreme court uses the concept of Privacy to designate a zone surrounding individuals,the family, and the home, into which the government may not intrude without a are only a few Fundamental Rights that have been recognized by the supreme Courtunder the classification of Privacy . Each of these Fundamental Rights is summarized below.

3 Giventhe large number of cases on, for example, search and seizure, obscenity, gender discrimination,racial discrimination, and affirmative action, it is surprising that there have been so few cases onprivacy Rights . This essay is intended only to present general information about an interesting topic in law andis not legal advice for your specific problem. See my disclaimer . I list the cases in chronological order in this essay, so the reader can easily follow the historicaldevelopment of a national phenomenon. If I were writing a legal brief, then I would use theconventional citation order given in the Bluebook. 1. Rearing Children Meyer v. Nebraska, 262 390 (1923).Meyer struck state law that required schools to teach only in English to children who had notpassed the eighth grade.

4 In dicta, the court said: While this court has not attempted to define with exactness the liberty thus guaranteed[by the Fourteenth Amendment], the term has received much consideration and some of theincluded things have been definitely stated. Without doubt, it denotes not merely freedomfrom bodily restraint but also the right of the individual to contract, to engage in any of thecommon occupations of life, to acquire useful knowledge, to marry, establish a home andbring up children, to worship God according to the dictates of his own conscience, andgenerally to enjoy those privileges long recognized at common law as essential to the orderlypursuit of happiness by free men. [citations to 14 cases omitted] The established doctrine isthat this liberty may not be interfered with, Under the guise of protecting the public interest, bylegislative action which is arbitrary or without reasonable relation to some purpose within thecompetency of the state to effect.

5 Determination by the Legislature of what constitutes properexercise of police power is not final or conclusive but is subject to supervision by the courts.[citation omitted]Meyer, 262 at 399-400. Pierce v. Society of Sisters, 268 510 (1925).The supreme court struck state law that required all children to attend public Jul 2012 Page 3 of 26 Prince v. Massachusetts, 321 158 (1944).The supreme court affirmed conviction of guardian, a member of Jehovah's Witnesses, forallowing girl to sell religious magazines, in violation of Massachusetts state statute that prohibitedchild Rights of children to exercise their religion, and of parents to give them religioustraining and to encourage them in the practice of religious belief, as against preponderantsentiment and assertion of state power voicing it, have had recognition here, most recently inWest Virginia State Board of Education v.

6 Barnette, 319 624, 63 1178. Previouslyin Pierce v. Society of Sisters, 268 510, 45 571, 69 1070, 39 468, thisCourt had sustained the parent's authority to provide religious with secular schooling, and thechild's right to receive it, as against the state's requirement of attendance at public schools. And in Meyer v. Nebraska, 262 390, 43 625, 67 1042, 29 1446,children's Rights to receive teaching in languages other than the nation's common tongue wereguarded against the state's encroachment. It is cardinal with us that the custody, care andnurture of the child reside first in the parents, whose primary function and freedom includepreparation for obligations the state can neither supply nor hinder.

7 Pierce v. Society of Sisters,supra. And it is in recognition of this that these decisions have respected the private realm offamily life which the state cannot , 268 at , Mrs. Prince lost her case, because the child labor law was held to be a valid exerciseof the state s authority. Stanley v. Illinois, 405 645 (1972).Mother of Stanley s children had died and Stanley sought custody of the children. BecauseStanley had never married the children s mother (despite living together for 18 years), Illinoisstatute made the children wards of the state and put them in foster homes. Illinois presumed thatStanley was an unfit parent, without any showing of his individual circumstances, and denied himcustody of his children.

8 supreme court held that this statute denied due process. Wisconsin v. Yoder, 406 205 (1972).The supreme court upheld right of Amish to withdraw their children from public schoolafter the eighth grade. Yoder struck state law that required twelve years of attendance at school. Troxel v. Granville, 530 57, 65 ( 2000) ( The liberty interest at issue in this case the interest of parents in the care, custody, and control of their children is perhaps the oldest ofthe Fundamental liberty interests recognized by this court . The court cited both Meyer and Pierce v. Society of Sisters from 1923 and 1925.). Jul 2012 Page 4 of 26 2. Procreationsterilization Buck v. Bell, 274 200 (1927).

9 In the only reported decision from lower courts on this case, the Virginia supreme court explainedthe alleged facts:At the time Carrie Buck was committed to the State Colony for Epileptics and Feeble-Minded, she was seventeen years old and the mother of an illegitimate child of defectivementality. She had the mind of a child nine years old, and her mother had theretofore beencommitted to the same Colony as a feeble-minded person. Carrie Buck, by the laws ofheredity, is the probable potential parent of socially inadequate offspring, likewise affected asshe is. Unless sterilized by surgical operation, she must be kept in the custodial care of theColony for thirty years, until she is sterilized by nature, during which time she will be a chargeupon the State.

10 If sterilized Under the law, she could be given her liberty and secure a goodhome, Under supervision, without injury to society. Her welfare and that of society would bepromoted by such v. Bell, 130 516, 517-518 (Va. 1925).The supreme court affirmed the Virginia supreme court s holding that the sterilization waspermissible. Justice Oliver Wendell Holmes wrote for the supreme court :There can be no doubt that so far as procedure is concerned the Rights of the patient aremost carefully considered, and as every step in this case was taken in scrupulous compliancewith the statute and after months of observation, there is no doubt that in that respect theplaintiff in error has had due process at attack is not upon the procedure but upon the substantive law.