Category Archives: The Right to Privacy

Rights ch 10, Short Course ch 16

Love, marriage, and divorce

These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage.  At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws.  This week the “Healthy Marriage Act” was introduced in the North Carolina Senate.  Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together.  Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together.  If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”[1]

 

If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract?  After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage.  The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract.   Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry.  As Justice White noted in Griswold v. Connecticut:

‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.

If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.

 

If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden.  While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce.  Perhaps the waiting period is too onerous?  The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.

 

Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections.  To receive the dissolution of the marriage, you must take two to three courses.  Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it?  Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant.  But there is no other option to obtaining a divorce short of moving to another state and establishing residency.  Otherwise, a couple is forced to remain in a marriage.

 

Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week.  Divorce jurisprudence could pave the way for marriage jurisprudence.


[1] North Carolina Senate Bill 518 Section 1.a.3

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Is DNA more like GPS or like fingerprints?

On February 2nd, David Savage reported on an upcoming Supreme Court oral argument regarding the 4th Amendment search and seizure clause.[1]  The case deals with the standard procedure, practiced in 28 states and by the federal government, to take DNA samples of most individuals arrested for serious crimes.  The case before the Court is Maryland v. King.[2] King was arrested for rape, among other charges, in Maryland in 2009.  His DNA profile also matched a case from 2003 involving the rape of two pre-teens.  King was convicted of all three crimes.

 

King’s argument deals with probable cause.  He was arrested for one crime, but there was no evidence or suspicion that connected him to the earlier crime.  Therefore, the search and seizure of his DNA for the purposes of comparison to all other DNA is unconstitutional.  Commentary on the case links the question presented to the GPS case from last term, US v. Jones.  There the Court ruled that the placement of a GPS device on a suspect’s car was a search that violated the 4th amendment.  Now in Jones, Scalia says, “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.”[3]

 

It seems pretty clear that if a GPS device placed on a car requires probable cause and a valid warrant due to the infringement of privacy and the amount of details of life that can be gathered, certainly the taking of DNA evidence falls squarely within that precedent.  DNA provides more information than any other physical evidence from a person.  It provides medical information, it provides familial information, and it is unique to an individual.  Savage quotes a DNA law expert as saying, “If you are arrested for a drug crime, that doesn’t mean the police can walk into your house looking for evidence of other crimes.”[4]  Again, if Jones is the controlling precedent, then the privacy interests will clearly outweigh the interests of the state.

 

Yet, there are several precedents that would support the practice of taking DNA samples after arrest.  First, providing DNA evidence is no more invasive than fingerprinting and the Court noted in Hayes v. Florida[5] that “None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable case, is necessarily impermissible under the Fourth Amendment.”  And, fingerprint evidence can also be compared to outstanding cases and provide a match for the purposes of connecting one crime to another without suspicion.  We do not consider such comparisons of fingerprints to databases to be searches that run afoul of the constitution.

 

While DNA evidence does contain a great deal of information, the purpose for the collection and the use is the same as fingerprinting.  The scope of the search and the invasiveness of the seizure are quite similar.  In 1988, the Court also allowed the seizure and subsequent search of the curbside trash left by narcotics traffickers.  Despite Brennan’s protest from the dissent that our trash contains a great deal of personal information about our habits, our medical condition, and “intimate details of Greenwood’s private life…” , the Court ruled in CA v. Greenwood that you have no privacy expectation over your trash, once placed outside your house and curtilage for pickup.[6]

 

Pundits suggests that cases such as Jones and King will be harder for the justices as they deal with modern technology.  However, the justices can also eschew those arguments by making the analogy of DNA to fingerprints.  For political scientists, it will be informative to see which stimuli (privacy versus law & order) are hit during oral argument.  The framing of the case will likely determine the outcome.


[4] This, however, is not true.  The police can do some searching of home or the area around an arrestee under the many exceptions to the warrants rule.  Any evidence in plain view—evidence of other crimes—is fair game.  They can conduct a protective sweep, Maryland v. Buie, and again evidence in plain view is then admissible.

 

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Religion, privacy, and locator chips: Extralegal factors and decision-making

National Public Radio reported on a new federal lawsuit out of Texas on Monday, December 17, 2012.[1]  On the 17th, a federal judge will hear a case dealing with an experimental program that places locator chips into student IDs.  The motivation for the school is monetary.  Attendance equals dollars and the chips provide more accurate counts of how many students are on school grounds.  For money strapped school districts, this is a way to squeeze a few more dollars out of the federal government.  The school district in Texas estimates gaining 1.7 million dollars out of a program that cost between 260,000 to 500,000, according to the two NPR stories.

However, some students and parents are challenging the use of the locator chip.  One argument is that it violates the freedom of religion.  One evangelical student believes that the chip is analogous to the ‘mark of the beast’ discussed in Revelations.  The chip program is to this family of evangelicals the same as the flag salute or school prayer is to Jehovah’s Witnesses or a school prayer was to Engel (see Minersville v. Gobitas (1940); West Virginia State Board of Education v. Barnette (1943); Engel v. Vitale (1962)).  Other parents and students challenge the chip program as a violation of the right to privacy.

A classroom discussion of this case last week would probably be a good case to discuss the intent of the first amendment and the balancing approach that the courts tend to use when dealing with schools and their role as parens patriae.  The school claims that the chips will be used for attendance and not monitoring students whereabouts on a constant basis.  However, the motivation for the program is monetary and that definitely ranks below the preferred freedoms.

However, while the motivation may have been monetary, in the wake of the tragedy in Newtown, CT, the school district may have a more compelling rationale for keeping the chips—the ability to locate each and every student during a crisis and after a crisis.  Even if the attorneys for the school district did not prepare to argue the safety interest, the facts of the case surely will bring these events to mind and solidify the school district’s interest when balanced against the other fundamental rights.  The safety interest, even more so than a policy to protect students from drugs and the drug culture (Morse v. Frederick (2007), again would be hard to ignore.  This case may, in the end, be an excellent example of extra-judicial factors beyond personal preferences influencing judicial decision-making.

 

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Its Bigger than DOMA

The twitter and blogospheres are lighting up with the news coming out of the Court of Appeals for the Second Circuit.  Chief Judge Dennis Jacobs has ruled that the Defense of Marriage Act is unconstitutional.  As a conservative judge appointed by H.W. Bush, with a Clinton judge, Chester Straub[1], dissenting, the opinion turns the perceived ideological divide of the debate on its head.

Upon the first blush, more striking to me is the reasoning rather than the result.  Chief Judge Jacobs did not take the states’ rights position to void DOMA; he ruled it unconstitutional under the equal protection clause.  In doing so, he altered where the classification of homosexuality sits on the tripartite equal protection scheme.  Determining that homosexuals as a class have “A)…endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”  If his reasoning holds, homosexuality will be equivalent to gender and receive intermediate scrutiny rather than rational basis.  Any classifications not allowed for gender would be equally suspect as applied to homosexuals.

Again, if this reasoning is accepted, the first class will be added to the semi-suspect or suspect classification in several decades.  Eschewing rational basis with teeth for this decision, Judge Jacobs opens the door for one Supreme Court decision to alter a whole slew of federal laws.  Under heightened scrutiny, all federal benefits denied to same-sex couples would likely fall, and fall quickly and easily.  The precedents from the 1970’s and decisions regarding benefits for women versus men will pave the way.  This decision is much bigger than DOMA.


[1] Judge Straub dissented essentially stating a classic restrainist rationale.  This is a question for the people and their representatives not the courts.

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Is it Federalism or an Undue Burden?

As several states, most notably Arizona pass more restrictive abortion laws there is a lot of ire from the pro-choice side about reduction of access and impediments placed in front of women seeking to end a pregnancy.  And certainly several of the last major challenges to abortion laws were all about which restrictions violated the Roe test and then the undue burden standard.  For example, according to the Guttmacher Institute, 39 states require a physician perform the procedure; 21 require a hospital stay; 17 mandate counseling; and 26 require waiting periods between counseling and the procedure. Interest groups expend significant amounts of money challenging and protecting these restrictions in court, in the state and federal legislatures, and in public opinion.  Judges then apply the undue burden test as outlined in Planned Parenthood of SE PA v. Casey505 US 833 (1992).

What I find interesting is the similarities between the restrictions enacted in these new laws and Oregon’s Death with Dignity Act.  Under this law[1] you cannot make use of it unless you have reached majority (18) and you are a resident of Oregon; you must have a diagnosis from two different physicians and they must agree that you have six months or less left of life.  Doctors must discuss all other options with the patient and request notification of the family of the request. The patient must make two oral requests for the medication and these requests must be at least 15 days apart.  Afterwards, the patient must make a written request with two witnesses.  These witnesses cannot be family, beneficiaries, or medical personnel that treat the patient.  The doctors must agree that the patient is capable of making appropriate medical decisions.  The patient must wait 48 hours (2 days) after the written request to receive the prescription.  The doctor must mail or personally deliver the prescription to the pharmacy.  Finally, the doctor must contact the state health and human services department.  In other words, the Death with Dignity Act creates similar if not more significant hurdles for those wishing to undergo the procedure than the new abortion laws coming out of some states.

In Gonzales v. Oregon, 546 U.S. 243 (2006), the Supreme Court ruled that the use of the Controlled Substances Act to prosecute doctors prescribing the lethal doses under the Death With Dignity Act is beyond the Attorney General’s powers.  In essence, it was a question of federalism and state’s rights won the day.  The states retain their police power over the health (and delivery of health care) within their borders.  Therefore, the Death with Dignity Act withstood the challenge and remains good law.

Again, the constitutional question in Gonzalez focused on federal versus state powers, but the substance of the act dealt with the right to die.  Often when we consider issues under the rubric of the ‘right to die’, the case is connected to the right to privacy (i.e. Cruzan v. Director, MO DOH 497 US 26 (1990) or WA v. Glucksberg 521 US 702 (1997)).  A question that remains is does the Death with Dignity Act pass the undue burden test?  If physician’s assisted suicide is covered under the umbrella of the right to privacy can the states (OR and WA) place these significant obstacles in front of the terminal patient?[2]


[2] Granted, if the Death with Dignity Act was deemed unconstitutional under this hypothetical it would suggest that there can be physician’s assisted suicide on demand.   But the application of the undue burden test to the strictures of the Death with Dignity Act seems like a good test of student understanding of the privacy material.

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Defining Blogging and the First Amendment

This summer the Spokesman-Review, the local paper for Spokane, Wa and its surrounding area, found itself making national news and it wasn’t for winning a Pulitzer.  The paper maintains a blog, like many news outlets do, and in February of this year a picture of then candidate Rick Santorum’s visit to Idaho was posted.  The paper notes that “a freewheeling online discussion about politics, including derogatory remarks about the candidate’s jeans and a sweater vest and the attire of others in the photo” followed.  As part of the comments, one anonymous blogger intimated that a local leader of the county GOP had stuffed some missing monies in her blouse.  By June, the local leader was suing for defamation and asking a federal judge to order the newspaper to reveal the identities of the commentators.  Without the name of the commentators, there can be no suit for subjecting the local politician to ridicule and potentially harming future job prospects (she is a bookkeeper).

The initial comments were only visible for 2 ½ hours when the mediator of the blog deleted them.  The comments by ‘almostinnocentbystander’ were followed by requests for more information and then ‘almostinnocentbystander’ provided information about the missing monies from the local GOP county committee.  In July, Judge John Patrick Luster of the Kootenai County District Court ordered the Spokesman-Review to provide the names of the anonymous bloggers.

Now, the newspaper will not appeal the decision and ‘almostinnocentbystander’ is expecting notification of a civil suit for defamation.  The newspaper decided not to appeal because their likelihood of success was low.  The case, though relatively obscure, highlights some interesting First Amendment problems that will need serious attention.  First, Judge Luster determined that the blog, even though attached to a news-outlet, was not journalistic.  And, any right to anonymous free speech is limited by the rules of libel.  Other states have had similar cases.  For example, in Minnesota an appeals court overturned a damages award because the court found that the critical post was accurate even though the post cost someone a job.[1]  Earlier this year in Oregon, a federal judge denied a blogger the same protection as a journalist under shield laws.

Both state and federal courts are grappling with the question of how far free speech and press protections extend in this digital age.  What separates a blog from journalism?  Clearly some blogs are not journalistic in nature yet they do report on events.  For example, a personal favorite of mine is “Lowering the Bar” where you find a case law hall of fame with fabulous quotes from judicial opinions and more regular posts that highlight legally abysmal claims.  The purpose is humor.  However, the cases are real. Information is provided.  Is it journalism?  Does it deserve free speech or press protections?  And if so, what level of protection should be provided?  Do we need a new test that is below strict scrutiny for bloggers and their anonymous commentators?  Or will each and every situation need to be litigated to find if there was truth and/or malice involved?

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New Arizona bill allows employers to deny contraceptive coverage based on moral objections

The State Press[1] reported (March 13, 2012) on Arizona House Bill #2652.  Majority Whip Debbie Lesko (R) introduced this bill that grants employers the power to deny health care coverage for contraception based upon the employer’s religious beliefs.  This bill, passed out of the Arizona Senate Judiciary Committee 6-2, is a clear reaction to the federal controversy over requiring employers to provide health insurance coverage for birth control.  In the case of the federal legislation, after Catholic bishops expressed outrage, the Obama Administration offered a compromise that allows institutions, such as charities or hospitals, that are run by the Catholic Church to opt out; insurance companies themselves would still cover contraception.[2]   The bishops are not satisfied with the compromise and are pushing for a broader exemption to include all businesses owned by Catholics.[3]  House Bill #2652 essentially implements this religious exemption to the contraceptive mandate included in the Affordable Care Act at the state level.

The Arizona bill, if passed, broadens that state’s 2002 Contraceptive Equity Law.[4]  Supporters of the measure frame this bill as protecting religious freedoms, arguing that employers should not have to violate their religious beliefs in order to run a business.[5]   This argument clearly places free exercise of religion on one side of a scale in terms of judicial balancing.  However, what do we place on the other side of the scale?  Would this law violate the equal protection clause?  The only employees subject to this restriction and required to share their medical records, information that potentially places them at risk for dismissal for their personal sexual behavior, are women.  It is a state law that provides employers with a reason to deny coverage and demand ‘a doctor’s note’; is this state action?  The situation is somewhat reminiscent of Shelley v. Kraemer (1948).  In Shelley, the Court determined that restrictive housing covenants were unconstitutional under the equal protection clause; the contracts were private, but the enforcement mechanism was the state judicial system.  This connection provided a basis for sufficient state action to bring the private contracts within the reach of the equal protection clause. Likewise, without the support of the state law, employers would not be able to demand medical records for all female employees seeking coverage for their contraceptives.   So, perhaps the equal protection clause can be balanced against the free exercise clause.[6]

Given that the law allows employers to ask for proof of non-reproductive use for insurance coverage of contraceptives, is there also a right to privacy claim vying against the free exercise claim?  Does one person’s religious objections outweigh medical privacy?  This aspect of the right to privacy is one of the least controversial.  You have a right to refuse medical treatment and, under the Health Insurance Portability and Accountability Act (2003),  you have a right to preserve the privacy of your medical records.  The only people with access are ones that you approve.  Under this state law, women would have to provide access to their employers, whether they wanted to or not, if they want coverage for non-reproductive birth control.[7]

My final thoughts about this proposed law and its implication for women’s rights is whether the right to free exercise or prohibition against the establishment of religion rests on the other side of the scale.  Lesko stated that, “We don’t live in the Soviet  Union…So government should not be telling organizations or mom and pop employers to do something against their moral beliefs.”  But under the proposed Arizona law, employers may gain access to their female employees’ private medical records to determine if their health insurance claims include the cost of contraceptives.  This knowledge might well have consequences for the employee, if the employer does not approve of the implications of such information.  In these cases, does the employee have similar rights?  Or does an employee, in order to have the benefit of income and insurance, have to live by the moral standards of their employer?  How far does that standard extend?  Dress codes, drug testing, and general professionalism are all deemed acceptable infringements on rights in most contexts, but can an employer demand that her workers attend church or a specific church?  Fire or refuse to hire divorced individuals?   Is the state, by empowering the moral or religious beliefs of the employer over the employee, supporting or endorsing one religion over others?


[1] http://www.statepress.com/2012/03/12/senate -judiciary-committee-endorses-controversial-contraceptive-bill/

[4] This law provides a limited exception to contraceptive coverage for religious employers that employ or service like-minded individuals or non-profits.  Prescriptions for contraceptives for treatment of diagnosed conditions (i.e. endometriosis) cannot be curtailed. (http://reproductiverights.org/en/project/contraceptive-equity-laws-in-the-states accessed on March 15, 2012.)

[5] Additionally, it has been suggested that since Arizona is an ‘at will’ state in terms of employment, women could be fired for seeking contraception unless it’s for a medicinal purposes. (see http://jezebel.com/5893011/law-will-allow-employers-to-fire-women-for-using-whore-pills accessed in March 15, 2012.)

[6] There is also the issue that only employees with employers posing religious objections would be subject to the additional scrutiny.

[7] Of course, this leads to an additional question of federal pre-emption.  Has the federal government left any room for state authority given the breadth and scope of both HIPAA and the ACA?  This question cannot be fully addressed until after the Court decides if the ACA and/or the individual mandate are constitutional.

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