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Two valid state interests were, however, recognized. These interests are separate and distinct. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions. After Roe , various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion. Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.

In other rulings applying Roe , the Court struck down some requirements and upheld others. On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery. The equal protection discussion in the public funding case bears closer examination because of its significance for later cases.

The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to childbirth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion—indigency— was not created or exacerbated by the government.

And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right. Although the Court expressly reaffirmed Roe v. Wade in , its decision in Webster v. Reproductive Health Services signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination.

The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe , but found no occasion to overrule it. Casey , the right to abortion has three parts. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

Regulations which do no more than create a structural mechanism by which the State. Casey did, however, overturn earlier decisions striking down informed consent and hour waiting periods. In Stenberg v. Only seven years later, however, the Supreme Court decided Gonzales v. Carhart , which, although not formally overruling Stenberg , appeared to signal a change in how the Court would analyze limitations on abortion procedures.

Of perhaps greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In a departure from the reasoning of Stenberg , the Court held that the failure of the federal statute to provide a health exception was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. These developments have not occurred, however, as the Court has been relatively cautious in extending the right to privacy. First, it relates to protecting against disclosure of personal information to the outside world, i.

For instance, the Court first identified issues regarding informational privacy as specifically tied to various provisions of Bill of Rights, including the First and Fourth Amendments. In Griswold v. Although the parameters and limits of the right to privacy were not well delineated by that decision, which struck down a statute banning married couples from using contraceptives, the right appeared to be based on the notion that the government should not be allowed to gather information about private, personal activities. After Griswold , the Court had several opportunities to address and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal information.

Miller , the Court, in evaluating the right of privacy of depositors to restrict government access to cancelled checks maintained by the bank, relied on whether there was an expectation of privacy under the Fourth Amendment. Similarly, in Fisher v. So what remains of informational privacy? A cryptic opinion in Whalen v. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. More than two decades after Whalen , the Court remains ambivalent about whether such a privacy right exists.

In its decision in NASA v. Nelson , the Supreme Court unanimously ruled against 28 NASA workers who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights. In Stanley v. Georgia , the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues.

In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns. Stanley , however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home. We do indeed base our society on certain assumptions that people have the capacity for free choice.

Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Although Bowers has since been overruled by Lawrence v.

Texas based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places. So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior.

In a line of decisions, however,. Connecticut , U. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia , U. Oklahoma , U. Baird , U. Massachusetts , U. Society of Sisters , U. Nebraska , supra. Despite the limiting language of Roe , the concept of privacy still retained sufficient strength to occasion major constitutional decisions. For instance, in the case of Carey v.

For a time, the limits of the privacy doctrine were contained by the case of Bowers v. Yet, Lawrence v. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy.

For instance, the extent to which the government may regulate the sexual activities of minors has not been established. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Family Relationships. In , in Obergefell v. There is also a constitutional right to live together as a family, and this right is not limited to the nuclear family.

In Troxel v. The states, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others. For instance, in Youngberg v. In Kansas v. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior.

Still other issues await exploration. Recently, a new category has been suggested—physician-assisted suicide—that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician. There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens.

In Cruzan v. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized. Glucksberg, that it intends to draw a line between withdrawal of medical treatment and more active forms of intervention.

The Court rejected the applicability of Cruzan and other liberty interest cases, noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia. As discussed earlier, however, the Court limited the effectiveness of that clause soon after the ratification of the 14th Amendment.

See Privileges or Immunities, supra. Instead, the Due Process Clause, though selective incorporation, became the basis for the Court to recognize important substantive rights against the states. Illinois, 94 U. Ames, U. Paramount Exch. Baldridge, U. Yick Wo v. Hopkins, U. Thompson, U. See Hellenic Lines v. Rhodetis, U. Riggs, U. Greenberg, U. Society of Sisters, U. Earlier, in Northern Securities Co. United States, U.

American Press Co. Bellotti, U. See id. But see id. Reis, U. Beckham No. Judges of Court of Registration, U. Foxworth, U. Miller, U. Pawhuska Oil Co. New Jersey, U. Mayor of Baltimore, U. But see Madison School Dist. WERC, U. Hutchinson Gas Co. Barnwell Bros. The converse is not true, however, and the interest of a state official in vindicating the Constitution gives him no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it.

Smith v. Indiana, U. West Virginia, U. Dye, U. Kansas City, U. See also Coleman v. Ogden, 22 U. See California Reduction Co. Sanitary Works, U. Walker, U.

City of Richmond, U. Chicago, U. Kirkwood, U. New York, U. Walters, U. See also Penn Central Transp. City of New York, U. Dukes, U. American Mini Theatres, U. McCarter, U. Richmond, U. Williams, U. Sebastian, U. Geiger-Jones Co. City of Goldsboro, U. Mahon, U. Swasey, U. City of Tiburon, U. Beckwith, U. Haskell, U. New Orleans, U. Bryan, U. Mow Sun Wong, U.

Fano, U. Haymes, U. Morrissey v. Brewer, U. For more recent cases, see DeShaney v. Winnebago County Social Servs. City of Harker Heights, U. Lewis, U. But see Chavez v. Martinez, U. Bull, 3 U. Smith, U. Greenwich Ins. See also French v. Barber Asphalt Paving Co.

There is support for the notion, however, that the proponents of the 14th Amendment envisioned a more expansive substantive interpretation of that Amendment than had developed under the Fifth Amendment. Whatever affects the peace, good order, morals, and health of the community, comes within its scope; and every one must use and enjoy his property subject to the restrictions which such legislation imposes. What is termed the police power of the State, which, from the language often used respecting it, one would suppose to be an undefined and irresponsible element in government, can only interfere with the conduct of individuals in their intercourse with each other, and in the use of their property, so far as may be required to secure these objects.

The compensation which the owners of property, not having any special rights or privileges from the government in connection with it, may demand for its use, or for their own services in union with it, forms no element of consideration in prescribing regulations for that purpose. Topeka, 87 U. There are limitations on [governmental power] which grow out of the essential nature of all free governments.

Implied reservations of individual rights, without which the social compact could not exist. These are fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all. A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Peck, 10 U. Pennsylvania, U.

Carolina Environmental Study Group, U. See also Usery v. Turner Elkhorn Mining Co. Orrin W. Fox Co. Governor of Maryland, U. Chicago, R. Skrupa, U. Freedom of contract was also alluded to as a property right, as is evident in the language of the Court in Coppage v. Kansas, U. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense.

McGuire, U. See also Wolff Packing Co. Industrial Court, U. Oregon, U. Oregon; Bunting v. Parrish, U. NLRB v. Wilson, U. McLaughlin, U. See also Muller v. Massachusetts, U. Hardy, U. Knoxville Iron Co. Harbison, U. Barton, U. Taylor, U. Louis, I. Paul, U. Rail Coal Co. See also McLean v. Arkansas, U. Beauchamp, U. Louis Consol. Coal Co. Illinois, U. Fulton, U. New York ex rel. Tipaldo, U. Missouri, U. See also Dean v. Gadsden Times Pub. White, U. Krinsky, U. New York Central R. Washington, U. Duffy, U.

Phoenix Co. Shuler, U. Bianc, U. Dysart, U. In his concurring opinion, contained in the companion case of AFL v. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. The result was that economic views of confined validity were treated by lawyers and judges as though the Framers had enshrined them in the Constitution.

With that attitude as a premise, Adair v. United States , U. Kansas , U. Corrigan , U. In Truax , the Court on similar grounds invalidated an Arizona statute which denied the use of injunctions to employers seeking to restrain picketing and various other communicative actions by striking employees. And in Wolff Packing Co. Cheek, U. Perry, U. In conjunction with its approval of this statute, the Court also sanctioned judicial enforcement of a local policy rule which rendered illegal an agreement of several insurance companies having a local monopoly of a line of insurance, to the effect that no company would employ within two years anyone who had been discharged from, or left, the service of any of the others.

On the ground that the right to strike is not absolute, the Court in a similar manner upheld a statute under which a labor union official was punished for having ordered a strike for the purpose of coercing an employer to pay a wage claim of a former employee. Dorchy v. Corsi, U.

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In a lengthy opinion, in which he registered his concurrence with both decisions, Justice Frankfurter set forth extensive statistical data calculated to prove that labor unions not only were possessed of considerable economic power but by virtue of such power were no longer dependent on the closed shop for survival. See also Giboney v. See also Davidson v.

New Orleans, 96 U. Minnesota, U. North Dakota ex rel. Stoesser, U. Kansas City Stock Yards Co. Yeomans, U. Hyde, U. Hartford Ins. Standard Oil Co. Banton, U. Liebmann, U. See also Adams v. Tanner, U. Palmer Bros. Thus, Justice Stone, dissenting in Ribnik v. McBride, U. I find in the due process clause no other limitation upon the character or the scope of regulation permissible. Older decisions overturning price regulation were now viewed as resting upon this basis, i. Adams v. DiCarlo, U. Beidelman, U. Insofar as judicial intervention resulting in the invalidation of legislatively imposed rates has involved carriers, it should be noted that the successful complainant invariably has been the carrier, not the shipper.

Of course the validity of rates prescribed by a State for services wholly within its limits must be determined wholly without reference to the interstate business done by a public utility. Domestic business should not be made to bear the losses on interstate business and vice versa. Thus a state has no power to require the hauling of logs at a loss or at rates that are unreasonable, even if a railroad receives adequate revenues from the intrastate long haul and the interstate lumber haul taken together. On the other hand, in determining whether intrastate passenger railway rates are confiscatory, all parts of the system within the state including sleeping, parlor, and dining cars should be embraced in the computation, and the unremunerative parts should not be excluded because built primarily for interstate traffic or not required to supply local transportation needs.

See Minnesota Rate Cases Simpson v. Shepard , U. Public Util. Duluth, S. The maxim that a legislature cannot delegate legislative power is qualified to permit creation of administrative boards to apply to the myriad details of rate schedules the regulatory police power of the state. To prevent a holding of invalid delegation of legislative power, the legislature must constrain the board with a certain course of procedure and certain rules of decision in the performance of its functions, with which the agency must substantially comply to validate its action.

Wichita R. ICC v. Illinois Cent. This statement, made in the context of federal ratemaking, appears to be equally applicable to judicial review of state agency actions. Garrett, U. Des Moines, U. Water Co. Consolidated Gas Co. Illinois Bell Tel. See also Minnesota Rate Cases Simpson v.

Jasper, U. See also Van Dyke v. Geary, U. The following excerpt from its holding in ICC v. Union Pacific R. In determining these mixed questions of law and fact, the court confines itself to the ultimate question as to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling. Unlike previous confiscatory rate litigation, which had developed from rulings of lower federal courts in injunctive proceedings, this case reached the Supreme Court by way of appeal from a state appellate tribunal.

In injunctive proceedings, evidence is freshly introduced, whereas in the cases received on appeal from state courts, the evidence is found within the record. See , e. National City, U. Southwestern Bell Tel. Public Serv. The sharp decline in prices that occurred during this period doubtless contributed to the loss of affection for reproduction costs. In Los Angeles Gas Co. Pacific Gas Co. Notwithstanding its early recognition as an allowable item of deduction in determining value, depreciation continued to be the subject of controversy arising out of the difficulty of ascertaining it and of computing annual allowances to cover the same.

Indicative of such controversy was the disagreement as to whether annual allowances shall be in such amount as will permit the replacement of equipment at current costs, i. In the FPC v. West, U. Franchise value and good will, on the other hand, have been consistently excluded from valuation; the latter presumably because a utility invariably enjoys a monopoly and consumers have no choice in the matter of patronizing it. The latter proposition has been developed in the following cases: Willcox v. Galveston, U.

Denver Union Water Co. Nor can past losses be used to enhance the value of the property to support a claim that rates for the future are confiscatory. Galveston Elec. New York Tel. Although this and the previously cited decision arose out of controversies involving the National Gas Act of , the principles laid down therein are believed to be applicable to the review of rate orders of state commissions, except insofar as the latter operate in obedience to laws containing unique standards or procedures. Ben Avon Borough, U. Illinois, and deprive courts of the power to void rates simply because they deem the latter to be unreasonable.

In a concurring opinion, in Driscoll v. Edison Co. Chicago, M. See also Wisconsin v. FPC, U. Barasch, U. Wellman, U. Iowa, 94 U. See also Prentis v. Atlantic Coast Line Co. Denver, U. See also Missouri Pacific Ry. Nebraska, U. Cleveland, U. Detroit, U.

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See also Denver v. New York Trust Co. Los Angeles Gas Corp. City of Newburyport, U. See also Skaneateles Water Co. Village of Skaneateles, U. Helena, U. City of Madera, U. Phoenix Ref. Virginia, U. Tranbarger, U. Clough, U. Police Court, U. But see Chicago, St. Holmberg, U. Hatch, U. However, if pipe and telephone lines are located on a right of way owned by a pipeline company, the latter cannot, without a denial of due process, be required to relocate such equipment at its own expense.

Panhandle Eastern Pipeline Co. See also Lehigh Valley R. Commissioners, U. But see Missouri Pacific Ry. See also New York ex rel. Woodhaven Gas Light Co.

Citizen Lane: Defending Our Rights in the Courts, the Capitol and the Streets

McCall, U. Bourland, U. Eastern Tex. South Carolina ex rel. Daniel, U. Jacobson, U. But manifestly that does not mean that a Commission may compel them to build branch lines, so as to connect roads lying at a distance from each other; nor does it mean that they may be required to make connections at every point where their tracks come close together in city, town and country, regardless of the amount of business to be done, or the number of persons who may use the connection if built. The question in each case must be determined in the light of all the facts and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier.

Where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute duties, the question of expense is of more controlling importance. In determining the reasonableness of such an order the Court must consider all the facts—the places and persons interested, the volume of business to be affected, the saving in time and expense to the shipper, as against the cost and loss to the carrier.

Oregon R. Fairchild, U. See also Michigan Cent. Michigan R. Georgia R. Nor are railroads denied due process when they are forbidden to exact a greater charge for a shorter distance than for a longer distance. Kentucky, U. McGrew Coal Co. Wadley Southern Ry. Georgia, U. Nor may a carrier be required to deliver its cars to connecting carriers without adequate protection from loss or undue detention or compensation for their use. Stock Yards Co. But a carrier may be compelled to interchange its freight cars with other carriers under reasonable terms, Michigan Cent.

Iowa, U. Richmond, 96 U. Goldsboro, U. Minnesota ex rel. Clara City, U. Alabama, U. Louis I. Norwood, U. Solomon, U. Wisconsin, U. Nye Schneider Fowler Co. Jackson Vinegar Co. Adams Express Co. Croninger, U. Glenn, U. Mathews, U. But see Kansas City Ry. Anderson, U. Wynne, U. Polt, U. Tucker, U. Humes, U. Cram, U. But see Southwestern Tel. Danaher, U. See also New Motor Vehicle Bd. Louisiana, U. State Council, U. Wisconsin Trust Co. Duel, U. Employers Liability Assurance Corp. Similarly a statute requiring a foreign hospital corporation to dispose of farm land not necessary to the conduct of their business was invalid even though the hospital, because of changed economic conditions, was unable to recoup its original investment from the sale.

New Orleans Debenture Redemption Co. Mississippi, U. See Waters Pierce Oil Co. Texas, U. See also American Machine Co. South Dakota, U. But cf. Fairmont Co. Seagram Corp. Pyroil, U. Oklahoma Grocers, U. City of Chicago, U. See Hauge v. Young, U. Musselman Grocer Co.

North Dakota, U. Burns Baking Co. Worst, U. Eddy, U. Bradley, U. Jackson, U. Sioux Falls Stock Yards Co. Parker, U. Little, U. Mayes, U. Love, U. Federal Reserve Bank, U. First State Bank, U.


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  • Dolley, U. Malone, U. Luckett, U. The depositor has no property right in any particular form of remedy. Gibbes v. Zimmerman, U. Connecticut, U. Martell, U. McMaster, U. Insurance Co. See also Hoper v. California, U. Family Ins. Ozlin, U. Dissenting from the conclusion, Justice Roberts declared that the plain effect of the Virginia law is to compel a nonresident to pay a Virginia resident for services that the latter does not in fact render. Maloney, U. Dodge, U. Wanberg, U. Nelson Co. Smart, U. Daggs, U. Cullen, U. Hale, U. See also Carroll v. McCray, U. Aetna Life Ins.

    Mutual Reserve Fund, U. Carpenter, U. Johnson, U. See Dent v. Michigan, U. Maryland, U. Board of Regents, U. Justices Black, Douglas, and Frankfurter dissented. Dental Examiners, U. See also Douglas v. Noble, U.

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    In the course of the decision, the Court overruled Liggett Co. See DeVeau v. Braisted, U. With four Justices dissenting, the Court in Adams v. Cargill Co. Atlanta, U. Chapman, U. Utah, U. Tobin, U. The Court also upheld a state law forbidding 1 solicitation of the sale of frames, mountings, or other optical appliances, 2 solicitation of the sale of eyeglasses, lenses, or prisms by use of advertising media, 3 retailers from leasing, or otherwise permitting anyone purporting to do eye examinations or visual care to occupy space in a retail store, and 4 anyone, such as an optician, to fit lenses, or replace lenses or other optical appliances, except upon written prescription of an optometrist or ophthalmologist licensed in the state is not invalid.

    A state may treat all who deal with the human eye as members of a profession that should refrain from merchandising methods to obtain customers, and that should choose locations that reduce the temptations of commercialism; a state may also conclude that eye examinations are so critical that every change in frame and duplication of a lens should be accompanied by a prescription. Williamson v. Peerless Co. Oklahoma, U.