Right of Privacy

1. Right of Privacy The classic conundrum of political theory: Book’s framing of problem: should society protect individuals from themselves? should society prevent sin and/or require “moral choices” under penalty of legal sanctions for the wrong choice? The theological take on the state: the state is God’s secular instrument for restraining man’s evil impulse and works in conjunction with “the church” to achieve man’s “redemption/salvation” This conception of the purpose of the state was the basis for the traditional formulation of the “police power” to protect/promote the “health, safety, morality, and general welfare”

2. Romans 13:1-2 "Everyone must obey state authorities, because no authority exists without God's permission, and the existing authorities have been put there by God. Whoever opposes the existing authority opposes what God has ordered and anyone who does will bring judgment on himself.“ I Peter 2:13 "For the sake of the Lord, submit yourselves to every human authority: to the Emperor who is the supreme authority and to the governors who have been appointed by him to punish the evildoers." Good News for Modern Man translation individual’s “wants” vs individual’s “needs”

3. Alternative structuring of problem: individual vs society (“others,” especially in a collective context) The Hobbesian formula: the state is man’s rationally created instrument for escaping from the “state of nature” by restraining his own (generically speaking) evil, not to save himself from himself, but to protect others, thus making possible the creation of “civil society” the part vs the whole atomistic vs organic conceptions of society libertarianism vs classical conservatism libertarianism vs modern liberalism

4. Roe v Wade • Balancing act between individual’s and state’s claims • Trimesters of pregnancy • 1st trimester: privacy – 100% state – 0% • 2nd trimester: privacy – 75% state – 25% • 3rd trimester: privacy – 0% state – 100%

5. PPSP v Casey • Reaffirmed “central rule” of Roe • Abandoned trimesters framework • Substituted pre- & post-viability framework • Pre-viability: an “undue burden” test for limits of state’s legitimate interests in protecting mother’s health/safety • Post-viability: state’s interest in protecting life remains paramount (as under the 3rd trimester of the former scheme

6. Stenberg v Carhart • Struck Nebraska law outlawing an abortion technique [D&X = dilation and extraction] • Semantic confusion: “late term” or “partial birth” • Court’s problems with law • No exceptions for “preservation of the health of the mother” • Imposes an undue burden of woman’s ability to choose D&E [dilation and evacuation] abortion because the law does not make a sufficiently clear medical distinction between D&X and D&E procedures

9. Partial-Birth Abortion Ban Act • Signed into law on Nov. 5, 2003 • This statute deals with pre-viability second trimester abortions • Congress made a finding after extensive testimony that this procedure is never necessary for the health of the mother • Despite its finding that "partial-birth abortion ... is ... unnecessary to preserve the health of the mother", the statute includes the following provision: • “This subsection [imposing penalties] does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

10. Partial-Birth Abortion Ban Act • The law in court • 3 U.S. district courts declared the law void on the basis of the Stenberg precedent • The U.S. appealed the case from the 9th Circuit • Gonzales v Planned Parenthood [Carhart] • Question presented: Whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face? • Oral argument: Nov. 11, 2006 • Outcome?

11. Gonzales v Carhart, 2007 • First, Congress found that unlike this Court in Stenberg, it was not required to accept the District Court’s factual findings, and that that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. • Second, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. Among other things, the Act prohibits “knowingly perform[ing] a partial-birth abortion … that is [not] necessary to save the life of a mother,” 18 U. S. C. §1531(a). It defines “partial-birth abortion,” §1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.”

12. Holding • Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, • or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception.

13. Right to Die? • There is NO constitutionally protected right to die at time, place, circumstance of one’s choosing • Competent patients [extended to guardians] may refuse life-prolonging treatments, procedures, medications, etc. • State laws prohibiting artificially-induced death or physician-assisted suicide do not violate the U.S. Constitution • States may grant the “right to die” if they wish