Right of PrivacyRight of PrivacyThe classic conundrum of political theory:The classic conundrum of political theory:Book’s framing of problem: Book’s framing of problem:

should society protect individuals from should society protect individuals from themselves?themselves?should society prevent sin and/or require “moral should society prevent sin and/or require “moral choices” under penalty of legal sanctions for the choices” under penalty of legal sanctions for the wrong choice?wrong choice?

The theological take on the state: the state is The theological take on the state: the state is God’s secular instrument for restraining man’s God’s secular instrument for restraining man’s evil impulse and works in conjunction with “the evil impulse and works in conjunction with “the church” to achieve man’s church” to achieve man’s “redemption/salvation” “redemption/salvation” This conception of the purpose of the state This conception of the purpose of the state was the basis for the traditional formulation of was the basis for the traditional formulation of the “police power” to protect/promote the the “police power” to protect/promote the “health, safety, morality, and general welfare”“health, safety, morality, and general welfare”

Romans 13:1-2 "Everyone must obey state Romans 13:1-2 "Everyone must obey state authorities, because no authority exists authorities, because no authority exists without God's permission, and the without God's permission, and the existing authorities have been put there existing authorities have been put there by God. Whoever opposes the existing by God. Whoever opposes the existing authority opposes what God has ordered authority opposes what God has ordered and anyone who does will bring judgment and anyone who does will bring judgment on himself.“on himself.“

I Peter 2:13 "For the sake of the Lord, I Peter 2:13 "For the sake of the Lord, submit yourselves to every human submit yourselves to every human authority: to the Emperor who is the authority: to the Emperor who is the supreme authority and to the governors supreme authority and to the governors who have been appointed by him to who have been appointed by him to punish the evildoers." punish the evildoers." Good News for Good News for Modern ManModern Man translation translation

individual’s “wants” vs individual’s individual’s “wants” vs individual’s “needs”“needs”

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

the part vs the wholethe part vs the wholeatomistic vs organic conceptions of societyatomistic vs organic conceptions of societylibertarianism vs classical conservatismlibertarianism vs classical conservatismlibertarianism vs modern liberalismlibertarianism vs modern liberalism

Roe v WadeRoe v Wade

Balancing act between individual’s and Balancing act between individual’s and state’s claimsstate’s claims

Trimesters of pregnancyTrimesters of pregnancy11stst trimester: privacy – 100% trimester: privacy – 100% state – state –

0%0%22ndnd trimester: privacy – 75% trimester: privacy – 75% state – state –

25% 25% 33rdrd trimester: privacy – 0% trimester: privacy – 0% state – state –

100%100%

PPSP v Casey PPSP v Casey

Reaffirmed “central rule” of RoeReaffirmed “central rule” of RoeAbandoned trimesters framework Abandoned trimesters framework Substituted pre- & post-viability Substituted pre- & post-viability

frameworkframeworkPre-viability: an “undue burden” test for Pre-viability: an “undue burden” test for

limits of state’s legitimate interests in limits of state’s legitimate interests in protecting mother’s health/safety protecting mother’s health/safety

Post-viability: state’s interest in protecting Post-viability: state’s interest in protecting life remains paramount (as under the 3life remains paramount (as under the 3rdrd trimester of the former schemetrimester of the former scheme

Stenberg v Carhart Stenberg v Carhart Struck Nebraska law outlawing an abortion Struck Nebraska law outlawing an abortion

technique [D&X = dilation and extraction]technique [D&X = dilation and extraction]Semantic confusion: “late term” or “partial Semantic confusion: “late term” or “partial

birth”birth”Court’s problems with lawCourt’s problems with law

No exceptions for “preservation of the health of No exceptions for “preservation of the health of the mother”the mother”

Imposes an undue burden of woman’s ability to Imposes an undue burden of woman’s ability to choose D&E [dilation and evacuation] abortion choose D&E [dilation and evacuation] abortion because the law does not make a sufficiently because the law does not make a sufficiently clear medical distinction between D&X and clear medical distinction between D&X and D&E procedures D&E procedures

Partial-Birth Abortion Ban Partial-Birth Abortion Ban ActAct

Signed into law on Nov. 5, 2003Signed into law on Nov. 5, 2003 This statute deals with pre-viability second This statute deals with pre-viability second

trimester abortionstrimester abortions Congress made a finding after extensive Congress made a finding after extensive

testimony that this procedure is testimony that this procedure is nevernever necessary for the health of the mothernecessary for the health of the mother Despite its finding that "partial-birth abortion ... is ... Despite its finding that "partial-birth abortion ... is ...

unnecessary to preserve the health of the mother", unnecessary to preserve the health of the mother", the statute includes the following provision:the statute includes the following provision:

““This subsection [imposing penalties] does not apply This subsection [imposing penalties] does not apply to a partial-birth abortion that is necessary to save to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, physical disorder, physical illness, or physical injury, including a life-endangering physical condition including a life-endangering physical condition caused by or arising from the pregnancy itself.caused by or arising from the pregnancy itself.

Partial-Birth Abortion Ban Partial-Birth Abortion Ban ActAct

The law in courtThe law in court3 U.S. district courts declared the law void on 3 U.S. district courts declared the law void on

the basis of the Stenberg precedentthe basis of the Stenberg precedentThe U.S. appealed the case from the 9The U.S. appealed the case from the 9thth Circuit Circuit

Gonzales v Planned Parenthood [Carhart]Gonzales v Planned Parenthood [Carhart] Question presented: Whether, notwithstanding Question presented: Whether, notwithstanding

Congress's determination that a health exception Congress's determination that a health exception was unnecessary to preserve the health of the was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is is invalid because it lacks a health exception or is otherwise unconstitutional on its face? otherwise unconstitutional on its face?

Oral argument: Nov. 11, 2006Oral argument: Nov. 11, 2006 Outcome?Outcome?

Gonzales v Carhart, 2007Gonzales v Carhart, 2007 First, Congress found that unlike this Court in First, Congress found that unlike this Court in Stenberg,Stenberg, it was not it was not

required to accept the District Court’s factual findings, and that that required to accept the District Court’s factual findings, and that that there was a moral, medical, and ethical consensus that partial-birth there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. necessary and should be prohibited.

Second, the Act’s language differs from that of the Nebraska statute Second, the Act’s language differs from that of the Nebraska statute struck down in struck down in StenbergStenberg. Among other things, the Act prohibits . Among other things, the Act prohibits “knowingly perform[ing] a partial-birth abortion … that is [not] “knowingly perform[ing] a partial-birth abortion … that is [not] necessary to save the life of a mother,” necessary to save the life of a mother,” 18 U. S. C. §1531(a). It defines . It defines “partial-birth abortion,” §1531(b)(1), as a procedure in which the doctor: “partial-birth abortion,” §1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside 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 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 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 purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.”other than completion of delivery, that kills the fetus.”

HoldingHolding

Respondents have not demonstrated Respondents have not demonstrated that the Act, as a facial matter, is that the Act, as a facial matter, is void for vagueness, void for vagueness,

or that it imposes an undue burden or that it imposes an undue burden on a woman’s right to abortion based on a woman’s right to abortion based on its overbreadth or lack of a health on its overbreadth or lack of a health exception.exception.

Right to Die?Right to Die?There is NO constitutionally protected There is NO constitutionally protected

right to die at time, place, circumstance right to die at time, place, circumstance of one’s choosingof one’s choosingCompetent patients [extended to Competent patients [extended to

guardians] may refuse life-prolonging guardians] may refuse life-prolonging treatments, procedures, medications, etc.treatments, procedures, medications, etc.

State laws prohibiting artificially-induced State laws prohibiting artificially-induced death or physician-assisted suicide do not death or physician-assisted suicide do not violate the U.S. Constitutionviolate the U.S. Constitution

States may grant the “right to die” if they States may grant the “right to die” if they wishwish