Objective: Explain the extent to which states are limited by the due process clause from infringing upon individual rights.
Starter: What is the most festive-sounding city name in the United States?
1.Would you like to live in any of these cities?
2.How much snow do you think typically falls in Snowflake, Arizona in a given year?
3.Which famous American painting enthusiast lived in North Pole, Alaska for over a decade?
4.Should auld acquaintance be forgot and never brought to mind?
5.For Americans who celebrate Christmas, what is the most common way they celebrate?
Recap: Explain the extent to which states are limited by the due process clause from infringing upon civil liberties.
Practice Questions
Right to Privacy
Explain how each of the following has been interpreted to imply a right to privacy:
- 1st Amendment
- 3rd Amendment
- 4th Amendment
- 5th Amendment
- 9th Amendment
- 14th Amendment
Development of Privacy Rights:
Griswold v. Connecticut (1964)
In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the Fourteenth Amendment before the Supreme Court.
Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?
In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that 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.
Roe v. Wade (1973)
In 1970, Jane Roe (a fictional name used in court documents to protect the plaintiff’s identity) filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas, where she resided, challenging a Texas law making abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, Roe alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Does the Constitution recognize a woman's right to terminate her pregnancy by abortion?
Inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental “right to privacy” that protects a pregnant woman’s choice whether to have an abortion. However, this right is balanced against the government’s interests in protecting women's health and protecting “the potentiality of human life.” The Texas law challenged in this case violated this right.
Although the state has legitimate interests in protecting the health of pregnant women and the “potentiality of human life,” the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability.
In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.
Planned Parenthood v. Casey (1992)
The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade?
In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.
Right to Privacy Questions
Practice Free Response Question
- Identify the assumed protection that is common to both Planned Parenthood v. Casey and Roe v. Wade.
- Based on the assumed protection identified in part A, explain why the facts of the case in Planned Parenthood v. Casey led to a modification of the holding in Roe v. Wade.
- Based on the holdings in Roe v. Wade and Planned Parenthood v. Casey, predict how the Supreme Court would handle a case on "heartbeat bills" that are becoming more common in states throughout the U.S.
Project: SCOTUS Case in a Box
You will research a landmark Supreme Court case and create a “Landmark Case Box” by bringing in tangible artifacts to represent that case. For example, if your assigned case was Texas v. Johnson (flag burning is protected free speech), you might choose to include a flag, a picture of Reagan, an EMPTY match book (some of these are sensitive issues, if you have to make a judgment call about the appropriateness of an object, you need to run it by Jacobson ahead of time), a typed or handwritten copy of the First Amendment, etc. You will present your case and box to the class. You will work in pairs on this project. Here are the requirements for the presentation:
- You must have at least eight objects in your box. These objects must relate to the case you’re assigned. I recommend using an empty cereal box.
- You must cover and then decorate the outside of your box with illustrations, words/phrases/constitutional clauses, photos, etc., that relate to your case. You must complete a Landmark Supreme Court Case chart with information about your case.
- Glue the chart to one side of the box and use it as a prompt when you present your case to the class. Your classmates will fill in their blank graphic organizers (one for each of the 9 cases) based on the information you present in class.
- You must present the contents of your box to the class. Show each item in the box and explain why it was significant to your case. Be prepared to answer questions from your audience about the case.
- List of Landmark Supreme Court cases:
- Brown v. Board of Education (equal protection under the law)
- Engel v. Vitale (establishment of religion)
- Gideon v. Wainwright (right to counsel)
- McDonald v. Chicago (right to bear arms)
- New York Times v. United States (prior restraint)
- Roe v. Wade (abortion)
- Schenck v. United States (clear and present danger)
- Tinker v. Des Moines (symbolic speech)
- Wisconsin v. Yoder (free exercise of religion)
Closer: Explain the extent to which states are limited by the due process clause from infringing upon individual rights.
On Deck
Next Topic: Social Movements and Equal Protection
Textbook: Read 5.1 and 5.2 (pp. 131-140)
Quiz Looming: Due Process and Rights of the Accused
Textbook: Read 5.1 and 5.2 (pp. 131-140)
Quiz Looming: Due Process and Rights of the Accused