Explaining the TurnAbout

1
Explaining the Turn-About

• What changed between Bowers and Lawrence?
• Does the approach to stare decisis here square
  with that in Casey?

2
The Reach of Lawrence

• What implications for other laws based on a
  moral disapproval of homosexuality?
• Adoption laws?
• Marriage laws?
• Dont ask, Dont Tell?
• The level of equal protection scrutiny for sexual
  orientation?

3
The Reach of the Privacy Right Background to
Glucksberg

• Cruzan v. Mo. Dept. of Health (1990) upholding
  states requirement of clear and convincing
  evidence that person in a persistent vegetative
  state would have wanted termination of life
  support
• Court suggests (in dicta) a fundamental right to
  refuse unwanted life-saving medical treatment,
  including life-support
• Lingering question is there a fundamental right
  to control ones death, and how far does it reach?

4
Glucksberg Does A Ban on Physician-Assisted
Suicide Violate Due Process?

• What is the Majoritys method for deciding for
  whether there is a fundamental right?
• Contrast Souter/Breyer method Harlan-like
  reasoning, asks if it is implicit in ordered
  liberty, much like common law reasoning from
  precedents.
• Which method best squares with the Courts
  precedent?

5
The Scope of Glucksberg

• Does the holding in Glucksberg foreclose any
  fundamental right to control ones own death?
• Do the opinions, taken together, suggest that
  there is a fundamental right at least in some
  circumstances? When?

6
Glucksbergs Various Opinions

• Rehnquist plurality (plus OConnor) uphold
  Washingtons ban as applied to competent,
  terminally ill adults who wish to hasten death
• OConnor (joined by Ginsburg, Breyer) agrees
  that there is no general right to suicide by a
  physician, but assumes that a terminally ill
  patient in great pain has a right to seek pain
  medication, even it hastens death.
• Stevens suggests that some terminally ill
  patients and their doctors may have a right to
  physician-assisted suicide and suggests
  agreement with OConnor on right to terminal
  sedation to treat end-of-life pain
• Souter sees a liberty interest in controlling
  end-of-life pain by medication or sedation, even
  it if hastens death and a liberty interest under
  the WA law, but finds sufficient state interests
  to justify it.

7
Fundamental Interest Analysis

• A different path to strict scrutiny the
  importance of the benefit/deprivation, not the
  disadvantaged class, triggers strict scrutiny
• Different from an absolute right to the benefit
  at issue (some things cant be taken away at all,
  however evenhandedly). If the benefit itself were
  guaranteed by the Constitution, there would be no
  need for an equal protection challenge when it is
  taken away unequally.
• Key question what sort of interests are
  sufficiently fundamental to trigger strict
  scrutiny, and why?

8
The Courts first fundamental interest case
Skinner v. Oklahoma (1942)

• OKl. law sterilize 3-time larcenists, but not
  3-time embezzlers
• Background Buck v. Bell (1927) rejected a DP
  challenge to a state law sterilizing inmates of
  state mental institution there is no due process
  right not to be sterilized. J. Holmes three
  generations of imbeciles are enough.
• Skinners equal protection ruling the state can
  sterilize felons evenhandedly, but cant
  sterilize some (larcenists) but not others
  (embezzers) where the crimes are otherwise
  similar (felonies)
• Note what the Court is NOT saying the Court does
  NOT prohibit the state from sterilizing
  altogether it just prevents it from treating
  similarly situated persons differently with
  respect to sterilization.
• We mention these matters not to reexamine the
  scope of the police power of the States.

9
Why is the EPC Interest Here Fundamental?

• Why does the Court recognize a fundamental
  interest in involuntary sterilization?
• Marriage and Procreation are fundamental to the
  very existence and survival of the race.
• The power to sterilize, if exercised, may have
  subtle, far-reaching and devastating effects.
• In evil or reckless hands it can cause races or
  types which are inimical to the dominant group to
  wither and disappear.
• There is no redemption for the individual whom
  the law touches. irreparable injury forever
  deprived

10
Possible Principles for Finding Fundamental
Interests

• Tradition/common law protection bodily integrity
  and marriage/procreation as one of the basic
  civil rights of man
• Autonomy/personhood need to protect some core of
  personal autonomy for representative democracy to
  function
• Permanence of harm/irreversibility there is no
  redemption for the individual whom the law
  touches
• Subject to misuse against a suspect class likely
  to be misused for invidious purposes, to
  further a racist agenda (not really race-neutral)
• Importance to society/foundational to democracy
  the very existence and survival of the race