Planned Parenthood v. Casey 1992

1
Planned Parenthood v. Casey (1992)

• The reasoning of Roe is not defended -- there is
  no appeal to any supposed right of privacy.
• In addition, Roes trimester system is rejected.
  Instead, viability becomes central after
  viability, the independent essence of the second
  life can now be the object of state protection.

2
Liberty replaces privacy

• Importance of precedent (stare decisis) an
  entire generation has come of age free to assume
  Roes concept of liberty.
• Court must generate a specific rule it falls to
  us to give some real substance to the womans
  liberty to determine whether to carry the
  pregnancy to full term.

3
Limitations to liberty

• State may encourage philosophical and social
  arguments, adoption, state assistance to pregnant
  women.
• May inform a womans free choice -- but must not
  hinder it (before viability). No undue burden
  substantial obstacle.
• After viability, reaffirms Roe may prohibit
  abortion except where necessary for the life or
  health of the mother.

4
Scalias Dissent

• What makes this liberty Constitutionally
  protected? Nothing to do with whether it concerns
  my concept of existence, of meaning, of the
  universe, and of the mystery of human life.
  (Kennedy)
• Not protected, for the same reason bigamy is not
  
• Not mentioned in Constitution.
• Longstanding tradition of prohibition.

5
Scalias Dissent, cont.

• Begs the question is the fetus a living human
  being, or merely potential life. By what
  reasoned judgment does the Court reach this
  conclusion?
• Many decisions that are basic, intimate,
  deeply personal can be criminalized sodomy,
  bigamy, incest, suicide.

6
Lawrence v. Texas (2003)

• Overturns Bowers. Kennedy writing the majority
  opinion, OConnor concurring.
• Sodomy is a liberty protected by due process in
  14th amendment
• Tradition emerging awareness that liberty gives
  substantial protection to adults in decidingin
  matters pertaining to sex.
• Appeal to European Court of Human Rights.
• Stare decisis is not an inexorable command.

7
The Mystery passage from Planned Parenthood v.
Casey

• At the heart of liberty is the right to define
  ones concept of existence, of the meaning of the
  universe, and of the mystery of human life.

8
Rights to privacy and equal protection also
involved

• Privacy progression Griswold, Eisenstadt, Roe,
  Carey v. Population Services (1977) --
  invalidated a law barring the distribution of
  contraceptives to persons under 16.
• Also, the equal protection clause is relevant,
  as ruled in Romer v. Evans (1996).

9
Sodomy is not defined as a fundamental liberty

• Kennedy nowhere asserts (contrary to Bowers) that
  there is a fundamental liberty to commit sodomy.
• Consequently, the Texas law must pass only
  minimal scrutiny a rational relation to a
  legitimate purpose.

10
Enforcing morality is no longer legitimate

• Our obligation is to define the liberty of all,
  not to mandate our own moral code.

11
OConnors opinion

• OConnor stands by the reasoning in Bowers --
  sodomy is not a fundamental liberty.
• However, the Texas statute violates the equal
  protection clause the conduct (sodomy) is
  closely correlated with being homosexual. The
  act is directed toward gay persons as a class.

12
No legitimate purpose

• OConnor does not claim that the classification
  of homosexual/ heterosexual is suspect. So,
  minimal scrutiny?
• Moral disapproval of a group cannot be a
  legitimate governmental interest because legal
  classifications must not be drawn for the purpose
  of disadvantaging the group

13
Scalias Dissent

• Nowhere does the Court in Lawrence declare sodomy
  to be a fundamental liberty, or subject the Texas
  law to strict scrutiny.
• This effectively decrees the end of all moral
  legislation bigamy, same-sex marriage, adult
  incest, prostitution, masturbation, adultery,
  fornication, bestiality and obscenity

14
The role of social dissent

• In Planned Parenthood v. Casey, widespread social
  discontent with Roe was given as a reason for
  upholding Roe to overrule under fire would
  subvert the Courts legitimacy.
• In Lawrence, social dissent from Bowers is given
  as reason for overturning it. No consistency!

15
Against OConnor

• Every law prohibiting any conduct whatsoever is
  directed against a class, namely, those more
  likely than average to engage in the forbidden
  act.
• A law against public nudity targets conduct that
  is closely correlated with being a nudist.

16
Same Sex Marriage?

• The Court claims the present case does not
  involve whether the government must give formal
  recognition to any relationship that homosexual
  person seek to enter.
• Scalia Do not believe it.

17
Enforcing Morality?

• Debate between Lord Devlin and H.L.A. Hart
• Defining Harm
• Paternalistic limitations to liberty
• Can we distinguish between moralistic and
  non-moralistic paternalism?

18
Lord Devlins Position

• Devlins Three Questions
• Is there a public morality?
• Does society have the right to use the law to
  enforce public morality?
• If so, under what conditions?
• Society is a community of ideas, held together by
  the invisible bonds of common thought.

19
Devlins Theory of Society

• Justified by a priori argument, not empirical
  research.
• Consequences society has a right to foster and
  enforce a common morality, even by force of law,
  since without it, society itself cannot continue
  to exist.

20
Two conditions

• To count as part of the common morality, it must
  be shared by the overwhelming majority, so as to
  constitute a view that can be presumed to be held
  by every reasonable man.
• It must be taken to be part of societys
  business, part of the social structure, and not a
  matter of purely private concern (like religious
  devotion).

21
Two further considerations

• We must balance the public interest in common
  morality against the claims of privacy.
• When the moral question concerns behavior
  occurring in private spaces (like the home), we
  must take into account the issue of fairness,
  since any enforcement is likely to be haphazard.

22
Harts Response

• Hart distinguishes the moderate thesis of
  moralism from the extreme thesis.
• According to the moderate thesis, morality should
  be enforced because doing so has good social
  consequences.
• According to the extreme thesis, enforcing
  morality is good in itself.

23
Harts Charge

• Hart accuses Devlin of confusing these two.
• Devlins essay ostensibly supports the moderate
  thesis.
• The moderate thesis requires empirical evidence
  of a causal connection.
• Devlins essay offers no such evidence.

24
Defending Devlin

• Must the law always offer empirical support of
  causal connection? Isnt common sense, or the
  consensus of the wise, sometimes sufficient?
• Hart himself accepts that society cannot function
  without a shared morality that discourages harm
  to others -- but offers no empirical support for
  this claim.

25
The Single, Seamless Web

• Hart also attacks what he calls Devlins
  undiscussed assumption that the shared
  morality forms a single web.
• He argues that Devlin accepts some kind of
  slippery slope if one part of the shared
  morality is weakened, the whole system is in
  danger of collapse.

26
The Public/Private Seam?

• Hart suggests that we can segregate morality into
  two parts that which concerns the private sexual
  conduct of consenting adults, and that which
  proscribes conduct injurious to others.
• We can weaken, or even jetttison the former,
  without affecting the latter.

27
What does society have a right to defend?

• Devlin the whole system of shared morality,
  since a shared morality is essential to society.
• Hart only that part of todays shared morality
  that is really essential to the continued
  existence of society. Therefore, not sexual
  morality.

28
Harts Two Assumptions

• Hart assumes that there is a unique core of our
  shared morality that can be identified and that
  alone is necessary and sufficient for the
  survival of society.
• This may be wrong - perhaps whats necessary is
  that a certain fraction (half, two-thirds, 9/10)
  of our morality survive, but it doesnt matter
  which part.

29
Harts Second Assumption

• Hart assumes that sexual morality has nothing to
  do with the common bonds that sustain society.
• In effect, he is arguing that we should treat
  sexuality as we treat religion.
• Devlin emphasizes the importance of marriage as
  an essential part of the social structure.

30
Sexual Privacy vs. Marriage

• We seem to face an inevitable choice to treat
  all matters of sexuality, including marital
  arrangements, as part of the zone of privacy, or
  to treat all of it as a matter of legitimate
  social regulation.
• If we follow Hart Lawrence, no grounds for
  prohibiting gay marriage, polygamy, adult incest,
  prostitution, etc.

31
Defining Harm

• Can anything besides damage to health, life or
  property count?
• Offense public sexual activity, expressions of
  racist ideas, pictures of aborted fetuses, or of
  victims of illegal abortions?
• Frustration of other-directed preferences?
  (Stephen)

32
More possibilities

• Weakening the social fabric by encouraging
  deviation from widely held norms?
• Increased danger to others, through damage to
  ones own character? (Drugs, pornography,
  gambling)
• Increased burden on the charity, compassion of
  others?

33
Can we distinguish moralistic from non-moralistic
paternalism?

• Non-moralistic paternalism seems much less
  controversial seat belts, helmets, FDA rules,
  medicine w/o license, no-smoking campaigns
  taxes.
• Is there a principled distinction? Historically,
  moralistic legislation was paternalistic helping
  others to achieve true happiness by avoiding
  spiritual/moral damage to their souls.

34
One Proposal Neutrality

• Utilitarian neutrality all desires, preferences
  cont equally.
• Dworkins equal respect. All preferences count
  equally,except other-directed preferences, or
  preferences rooted in hatred.
• Libertarain neutrality the state must defend
  neutrally defined boundaries of property, with no
  interference with private choice within those
  boundaries.

35
Procedural Neutrality

• The state must justify all coercive rules in
  terms that every citizen can understand and
  appreciate. No law may be justified in terms of
  controversial conceptions of religion, morality
  or human welfare.
• Use only a thin conception of what is good
  (John Rawls).

36
Is neutrality a viable standard?

• Interpreted strictly, it would seem to invalidate
  all coercive laws, including those against
  slavery, rape.
• Interpreted loosely (in terms of what ideally
  rational persons could agree to), it would seem
  to be vacuous, since different people will define
  ideal rationality in different ways.