HHP 4600 Law and Public Health Module 3 Power Point questions on Privacy 1. Where in the U.S. Constitution is the explicit provision recognizing the right to privacy? 2. How has the Supreme Court recognized the right to privacy? 3. Roe v Wade recognizes the privacy of women’s right to choose to reproduce or not. How does the decision to abort a fetus legally avoid clashing with the right to life of a child? Does Roe v Wade require every state to permit abortions? Why is it more difficult to have an abortion in some states than others? 4. What fundamental right is common in cases involving abortion, guardianship, right to refuse treatment, and sex between consenting adults? 5. What did the courts decide in Bowers v Hardwick? Was a fundamental right actually involved? Did the opinion of Justice White recognize that fundamental right? How was this different from Roe? 6. Karen Quinlan 1. What was decided in the case of Karen Quinlan? 2. What fundamental right do Quinlan and Cruzan have in common with abortion and contraceptive cases? 3. What prevalent practice became almost standard procedure by the public after the Quinlan and Cruzan decisions? 7. What did the court rule in 1. Bouvia? 2. Cruzan? 8. Has the Supreme Court decided we have a right to refuse treatment even if it leads to one’s death? 9. Has the Supreme Court decided we have a right to determine the timing and manner of our death, i.e. commit suicide? Teitelbaum and Wilensky Chapter 6 Individual Rights in Health Care 1. Does having a license to practice medicine legally obligate you to provide healthcare to those who need it? 2. What is meant by the no duty principle? 3. Does the Constitution confer to Americans the right to education and health? 4. Did the passage of the Affordable Care Act of 2010 alter Americans right to health care? 5. How might the idea of having a free market health care system and a negative view of government be a barrier to single payer universal healthcare? 6. To what does EMTALA entitle a person? 7. What does the Canterbury case demonstrate? 8. How might Jacobson v Massachusetts be a legal precedent today in resolving cases where some people contest states or cities require wearing protective masks or social distancing or closing some businesses during a pandemic? 9. Why is it important to recognize the courts’ interpretation of the Tenth Amendment or police powers as empowering, but not obligating government to act? 10. If one believes the federal government has not done enough to protect citizens during a Pandemic, could one successfully sue to make the government take better care of its citizens? 11. What is meant by a negative constitution? 12. What do the cases of DeShaney and Town of Castle Rock cases demonstrate? Updated 7/9/20 Government Power and Privacy Module 3 PrivacyMaking individual decisions without government interferenceTorts or violations of civil liberties, but privacy not explicit in U.S. Cons ...

1. HHP 4600 Law and Public Health
Module 3 Power Point questions on Privacy
1. Where in the U.S. Constitution is the explicit provision
recognizing the right to privacy?
2. How has the Supreme Court recognized the right to privacy?
3. Roe v Wade recognizes the privacy of women’s right to
choose to reproduce or not. How does the decision to abort a
fetus legally avoid clashing with the right to life of a child?
Does Roe v Wade require every state to permit abortions? Why
is it more difficult to have an abortion in some states than
others?
4. What fundamental right is common in cases involving
abortion, guardianship, right to refuse treatment, and sex
between consenting adults?
5. What did the courts decide in Bowers v Hardwick? Was a
fundamental right actually involved? Did the opinion of Justice
White recognize that fundamental right? How was this different
from Roe?
6. Karen Quinlan
1. What was decided in the case of Karen Quinlan?
2. What fundamental right do Quinlan and Cruzan have in
common with abortion and contraceptive cases?
3. What prevalent practice became almost standard procedure by
the public after the Quinlan and Cruzan decisions?
7. What did the court rule in
1. Bouvia?
2. Cruzan?

2. 8. Has the Supreme Court decided we have a right to refuse
treatment even if it leads to one’s death?
9. Has the Supreme Court decided we have a right to determine
the timing and manner of our death, i.e. commit suicide?
Teitelbaum and Wilensky Chapter 6 Individual Rights in Health
Care
1. Does having a license to practice medicine legally obligate
you to provide healthcare to those who need it?
2. What is meant by the no duty principle?
3. Does the Constitution confer to Americans the right to
education and health?
4. Did the passage of the Affordable Care Act of 2010 alter
Americans right to health care?
5. How might the idea of having a free market health care
system and a negative view of government be a barrier to single
payer universal healthcare?
6. To what does EMTALA entitle a person?
7. What does the Canterbury case demonstrate?
8. How might Jacobson v Massachusetts be a legal precedent
today in resolving cases where some people contest states or
cities require wearing protective masks or social distancing or
closing some businesses during a pandemic?
9. Why is it important to recognize the courts’ interpretation of

3. the Tenth Amendment or police powers as empowering, but not
obligating government to act?
10. If one believes the federal government has not done enough
to protect citizens during a Pandemic, could one successfully
sue to make the government take better care of its citizens?
11. What is meant by a negative constitution?
12. What do the cases of DeShaney and Town of Castle Rock
cases demonstrate?
Updated 7/9/20
Government Power and Privacy
Module 3
PrivacyMaking individual decisions without government
interferenceTorts or violations of civil liberties, but privacy not
explicit in U.S. ConstitutionExplicitly stated
libertiesReligionAssociateSearch and seizure
Privacy derived, not stated in constitutionBased on other
explicit amendments like right from interference in speech,

4. assembly, unlawful search and seizure, religion, case law in
court decisions has recognized right to privacy.
Griswold v Connecticut (1965)
Eisenstadt v Baird (1973)First mention of privacy is in
Griswold (1965)Privacy recognized in the federal
Constitution?Justice Douglas cites Fourth and Fifth
Amendments as right against all government invasions “of the
sanctities of a man’s home and the privacies of
life.”Connecticut law prohibiting use of contraceptives
invalidated
Eisenstadt (1973)
1. Fundamental interest to privacy protected by federal court
includes use of contraceptives by married and unmarried
2. Shows willingness of court to examine legislation and
discretion of state closely and suspiciously to see if there is a
state compelling interest and if it has minimal impact on the
individual
Roe v Wade & Doe v Bolton (1973)State’s Police power vs.
individual rightOverruled Texas law making abortion a felony
(except to save life of mother)Under “close scrutiny” State did
not meet criteria of having “compelling interest”Cited Griswold
and EisenstadtState argues two compelling interests:Protecting
health of motherProtecting potential human life, fetus
Roe & DoeState may have interest in regulating abortion and
invade woman’s right of privacy if it is for protection of a

5. living personFetus is a person after 6-8 months, so only rights
of a person, the mother, is a compelling interest. Until then
unborn fetus is not viable, not capable of life outside the womb,
therefore, not a person.
Roe & DoeState cannot regulate women’s right to privacy in
first two trimesters of pregnancyState can regulate after that if
reasonably related to maternal healthDoe challenged GA law
requiring restrictions on abortionOnly physician can perform it
Two other physicians concurPerformed only in hospital,
licensed and JCHA-O (now Joint Commission) accredited, and
Approved by committee of three other medical staff
Doe v Bolton (1973)Are four Georgia law conditions
constitutional?Earlier decisions said state couldregulate
“fundamental interest” in privacy if it can survive “close
scrutiny” had justification of a “compelling interest”
Court ruled these requirements not constitutional as same
conditions not required for other medical procedures
Applications and fallout of 1973 abortion decisionsCourt will
use power to review constitutionality of state legislation
including and beyond abortion issuesState could not require
women under 18 to get parental consentMarried women did not
have to have consent of husbandCould require consent in
writing and certification of “informed consent” prior to
procedureAbortion became political issue

6. Bowers v Hardwick (1986)Privacy application?Openly gay adult
male in GA arrested in the bedroom of his home for engaging in
sex with another consenting adult male (arrested by policeman
who had come to home to serve warrant regarding parking
tickets, invited in by roommate) Charged with violating state’s
sodomy law
BowersDid state of Georgia have compelling interest to
interfere with individual’s fundamental right?White, Rehnquist,
O’Connor, Burger, and Powell reversed Circuit Court
decisionSaid no “fundamental interest” was violated and
legislation only had to be “rational” to be constitutionalOpinion
by White: Rational can be just a notion of morality.. and if
Court intervenes in all morality cases, would be very busy, so
will not invalidate sodomy laws in 25 states.
Bowers and privacyIf deciding whether to have an abortion
possibly with the aid of a physician and whether to use
contraceptives without government interference are fundamental
rights, how is who you choose to have consensual sex with, not
a fundamental right? Did court follow the two tier test?
Bowers case reviewCourt seems to have applied close scrutiny
and asked state to show a compelling interest in other privacy
cases involving contraceptives and abortion, but in Bowers,
where fundamental right of who and how one has sex in privacy
of home is at question, the court says it is not worthy of their
time.

7. Webster v Reproductive Services (1989) Missouri
Court divided. One side arguing privacy is a fundamental
interest and others not in agreement that abortion is a
fundamental right.Sandra Day O’Connor is swing vote,
appointed by President Reagan, writes majority opinion
upholding right to abortion.
Planned Parenthood of Southeastern PA v Casey
(1992)Legislation proposed requiring restrictions on
abortion:Informing woman 24 hrs. prior of risks and age of
unbornMust read a state brochure to expose woman to options
like adoptionHusband must be notified
Earlier cases ruled these interfered with “fundamental right” of
woman and court applied “close scrutiny” to states law. Roe v
Wade would rule these unconstitutional, but Casey does not.
CaseySandra Day O’Connor reaffirms three principles from
Roe:Right of woman to choose to have an abortion before
viability without interference from the state State can restrict
abortion after fetal viabilityState has interest in pregnancy to
protect health of woman and life of the fetus that may become a
child
O’Connor’s opinion upheld constitutionality in Casey of
requiring informed consent, 24 hr waiting period and pro-life
information, but not husband notification. This considered an
undue burden.
Legal reasoning or pragmatic judicial politics?Did O’Connor

8. have a legal rationale or just found a majority opinion?Only
Souter and Kennedy endorsed opinion in entiretyStevens and
Blackmun voted with majority with concurring separate
opinionsFour justices would have overturned Roe entirely:
White, Rehnquist, Scalia, and ThomasScalia labeled O’Connor’s
opinion as “unjustified constitutional compromise”
Legal opinions or sour grapes?Justice Scalia’s minority opinion
took serious issue with O’Connor’s majority opinion:Scalia says
states should have complete discretion to regulate or prohibit
abortionsScalia writes, “The best the court can do to explain
how the word ‘liberty’ must be thought to include the right to
destroy human fetuses is to rattle off a collection of adjectives
that simply decorate a value judgment and conceal a political
choice.”
Right to Privacy and Right to Die CasesQuinlan (1976)New
Jersey parents of 21 yr old Karen Quinlan requested
guardianship to end life support for daughter in chronic
irreversible vegetative stateNJ Supreme Court decision became
a patternState had no compelling interest that could outweigh
the fundamental interest of individual to refuse treatment and
her right is meaningless unless someone can act on her behalf.
Bouvia v Superior Court (1986)Allowed a competent, disabled
woman to refuse forced feeding even if her intended result was
to terminate her life.Court decisions seen as constitutional
issue:Whether courts can intervene through guardianship in
what is normally an individual choice

9. Principles on right to life
State can claim “compelling interest” in Protecting or
promoting lifePreventing suicide or active taking of
lifeProtection of innocent third partiesPromotion of the ethical
integrity of the medical profession
Rarely do these interests override fundamental interest of the
individual
Cruzan v Director, Missouri Dept. of Health (1990)Family of
Nancy Cruzan asked hydration and nutrition be terminated for
her, concluding this from earlier statements she had made, but
family had no documentsWhile recognizing common law right
to refuse treatment based on informed consent, Court said
Missouri’s interest to promote life outweighed right to refuse
treatment in this circumstance.
Cruzan (1990)Family/Nancy needed a living will.Needed clear
and convincing evidence that when competent the patient had a
preference for refusing treatmentRehnquist in 5-4 decision
stated:14th amendment says no state may deprive any person of
life liberty or property without due process of lawDoes U.S.
Constitution prohibit establishing procedures to ensure person’s
wishes to refuse treatmentCourt says state can require
procedures
Conclusions
Individuals, disabled or not, have a right to refuse treatment
even if it results in their deathStates can require processes to

10. ensure due process for individualLiving wills and advanced
directives became popular after Cruzan case.
Glucksberg v Washington (1997)Appears to be debate within
court on right to die, but no clues from them on its
constitutionality Glucksberg: Washington state law says
physicians can withhold or withdraw life-sustaining treatment at
the request of a patient, but criminal code defines assisting or
promoting suicide as a felony. Lawsuit by plaintiffs argued
competent, terminally ill had right to hasten their death with
medication prescribed by their physicians.
GlucksbergCiting Casey and Cruzan said state laws are
constitutional.May have fundamental interest in right to refuse
treatment and privacy, but not to control timing and manner of
own death.Rehnquist: History, values, tradition prevents
assisted suicide.
Vacco v Quill
NY physicians can aid dying patients but not actively
participate in what was considered a suicide.Rehnquist opinion
that state did not affect suspect class nor a fundamental interest
and only needed to be rational to be upheld, meaning…Supreme
Court not willing to recognize right to die as a fundamental
right
Death with Dignity laws:

11. Oregon, et al States following the Oregon Death with Dignity
example have been permitted to create laws that allow
diagnosed terminally ill patients under certain conditions to
alleviate pain early through arranging an early death.Appears
that avoiding 6 months of pain until your death is not choosing
the timing and manner of your death.
Conclusion“Supreme Court over time has struggled to make
principled, not political, decisions and has managed to do so
most of the time with a fair degree of success.”—WingPersonal
preferences, philosophies, and political leanings affect how
justices read the Constitution.Justices, like us, have strongly
held feelings and beliefs over issues like abortion, sexual
privacy, and dying.
Updated 7/10/20
Slides developed using The Law and the Public’s Health, 7th
ed., 2007 by Kenneth Wing.