Privacy in the Information Age

19 April

• Questions:
  1. Is privacy protected?
  2. Is it a fundamental right?
     • Abortion: Roe
     • Contraception: Marital Griswold
     • Marriage: Loving
     • Refusing unwanted medical treatment: not Cruzan
     • Sodomy: No, says Bowers, but...
     • Intimate personal choices: Lawrence
  3. What sort of scrutiny/review does it get?
• These cases are classic examples oh how framing the issue can determine the outcome.
• Cruzan v. MO Dept. of Health
  Do parents have the right to withdraw hydration and nutrition from a patient in a vegetative state? MO Stat requires clear and convinving evidence that this would have been the patient's wish.

  Subjecting someone to unwanted medical treatment is battery, under common law. Starting with long-protected stuff like that makes it seems like maybe we'll be discussing a fundamental right. But the state has a rational interest in protecting the lives of citizens.

  But the court never articulates a fundamental right that merits strict scrutiny. Scalia, unsurprisingly, thinks the court should stay away from anything to do with suicide. Rhenquist (maybe to get a majority) distinguishes between assisting suicide and withdrawal of medical treatment.

• Tension between personal autonomy and capacity: do we want depressed people exercising their right to assisted die?
• Why does SCOTUS cast right-to-die cases as (decisional) privacy issues?
• Lawrence v. Texas
  If you want your anti-sodomy law to stand, make it equal-opportunity. What's the interest protected here?

  Again, asking the question gives the answer:

  • Bowers: is there a constitutional right to sodomy?
  • Lawrence: is there a right to choose intimate contact?
  Expanding the framing of the issue is the first step towards finding a protected interest.

  This is a quasi-1A issue.

  Note that the state has an interest in preventing divorce (i.e., adultery laws), because of the costs that procedure places on the system.

  Does sexual privacy exist only in secret?

• Using privacy as a vehicle for protecting unpopular interests is a slippery slope: it's analogous to a revival of Lochner-style substantive due process.
• Able
  DADT: note that the proscribed conduct goes way beyond stuff that would interfere with unit cohesion. And it's not just conduct: expression of intent is covered as well, etc.

  And look, this is a privacy case, even though you pretty much don't have any expectation of privacy when you're in the military.

• Just because we can't define privacy doesn't make it a meaningless concept. Consider "love," for example.