I've now covered seven of the rights that are protected as to privacy. The eighth that I want to talk about is the Supreme Court has held that right to privacy protects a right to engage in private, consensual, adult homosexual activity. The initial case in this area, Bowers versus Hardwick, 1986 came to an opposite conclusion. Bowers versus Hardwick began as this case often do with unusual fan. And was a police officer came to a door to deliver a bench warrant, a man by the name of Michael Hardwick. And a roommate answered the door, and the roommate said, I don't know if Mike's here or not. You might want to check his bedroom and the police officer said he looked into the bedroom. The door was open a crack. He peered in, he saw two men engaged in sexual activity. Georgia had a law that prohibited oral-genital or anal-genital contact. The men were in violation of the statute, and they were arrested. Notice that Georgia law prohibited oral or anal sex to same sex as well as opposite sex couples. The Attorney General of Georgia Bowers decided not to prosecute Hardwick for this. Such laws existed still in many states, but they were rarely enforced, especially for homosexual activity in private. But Hardwick decided to bring a lawsuit against the Attorney General Bowers to have the Georgia statue declared unconstitutional. And the case came down 5 to 4 to uphold the Georgia statue. Justice Byron White wrote the opinion for the court, he said rights should be protected as fundamental. Only if they're in the text of the Constitution, where there's a clear intent of the framers to protect them or if there's a tradition to protect them. Says there's nothing in the text of the Constitution about a right to engage in sex. The framers didn't mean to protect such a right, and he says there's no tradition of protecting such a right as recently as 1961. All 50 states and the district of Columbia had laws that made it a crime to engage in homosexual activity. The 5th justice in the majority was justice Lewis Palm, he resigned from the supreme court in 1987, a year after Bowers. And soon after he gave a speech at New York University Law School saying he made a mistake in Bowers versus Hardwick. That he should have joined with the descending justices, but it wasn't until 17 years later in Lawrence versus Texas, that the supreme court overruled Bowers versus Georgia, Bowers versus Hardwick. In the case of Lawrence versus Texas, what you have as again, the police came to an apartment, this time in response to a complaint of noise. And they said that they saw men engaged in homosexual activity. Many dispute that this is really what happened. But the men who were engaged in homosexual activity got criminally prosecuted. So this is different than Bowers versus Hardwick. In that case, there was no criminal prosecution. In Lawrence versus Texas, there was a criminal prosecution. And the men got convicted under a Texas statute that prohibited quote, deviant sexual intercourse. The Texas statue applied only as the homosexual activity. The Texas court of criminal appeals of held their conviction and the punish will support all fine. The Supreme Court queen in review and the supreme court declared the Texas law unconstitutional. This is Anthony Kennedy wrote for the court. He said the right to privacy has long been protected as a fundamental right under the Constitution. He said if privacy means anything, it's what consenting adults choose to do in their own bedroom. He said Bowers versus Hardwick was wrong when it was decided, and is wrong today, and it's overruled. Justice Scalia wrote a vehement angry dissent. He said, if we're going to say that this law is unconstitutional, what about all the other laws that regulate sexual activities? What about laws that prohibit fornication, or adultery, or masturbation. I didn't know any state even had a law that prohibited masturbation but Justice Scalia said such laws were on the books. Justice Scalia said, if we're going to say this law's unconstitutional, isn't that going to then mean that laws that prohibit same sex marriage are unconstitutional? And then amazing that in 2003, Justice Scalia said that as part of his parade of horribles. And just 12 years later, the Supreme Court Obergefell versus Hodges that I mention, said that the right to marry includes the right for same sex couples to marry. Lawrence versus Texas holds that there is a constitutional right to engage in private, consensual, adult, same sex sexual activity. Interestingly, the court didn't indicate the level of scrutiny that it was using here. Didn't say whether it was using strict scrutiny, didn't say we'd using rational basis review. But it said, no state can criminally prohibit or punish private consensual adult homosexual activity. The ninth right that I want to talk about under privacy is the right of competent adults to refuse medical treatment, even life saving medical treatment. This was the holding of Cruzan versus Director of Health Services in 1990. Nancy Cruzan was a young woman in Missouri. She was in a tragic car accident. She was left in a permanent vegetative state. Her parents had to be told by the doctor that she would never recover from the persistent vegetative state, said that they wanted to remove food and water and end her life. The State of Missouri intervened to try to keep Nancy Cruzan alive. The case went all the way to the Supreme Court. And the Supreme Court, in Cruzan versus Director of Health Services made three points. First, it said competent adults have the right to refuse medical treatment. Even life saving medical treatment, confident adults, part of this can refuse through new water. Eight of the nine justices then under Supreme Court all the Justice Scalia agreed that competent adults have a right to refuse medical care. Here too, the court didn't indicate the level of scrutiny that it was using. Didn't say it was strict scrutiny, didn't say rational basis review. The court just said under the liberty of the due process clause, competent adults have a right to refuse medical care. Second the court said, a state can require clear and convincing evidence that a person wanted treatment terminated, before it's ended. The court said, states have an important interest in safeguarding the sanctity of life. A state therefore can require that there be clear and convincing evidence that a person wanted the treatment terminated before it's cut off. And third the court said, that a state can prevent family members from terminating treatment for another. The court explained that the right to refuse medical treatment belongs to each person. A state might believe that family members have a conflict of interest. That they want to cut off treatment, just to reduce their own emotional and financial burden. And so the Supreme Court said, a state can intervene from family members from terminating treatment for another. And that remains the law to this day, competent adults have a right to refuse medical care, even life saving medical care, even food and water. State can require clear and convincing evidence the person wanted treatment terminated before it's cut off. And the state can prevent family members from terminating treatment for another. The Supreme Court didn't decide the fate of Nancy Cruzan, it sent the case back to the lower courts. Testimony was there, from Nancy Cruzan's friend and she said, they heard her say, she never wanted her to be left in a vegetative state. The trial judge said that there was clear convincing evidence that was a desire and treatment was then terminated. Tenth and finally with regard to privacy, the right to privacy does not include a right to physician assisted death. This was the holding of a 1997 Supreme Court case, Washington versus Glucksberg. Washington versus Glucksberg involved a law in the State of Washington that prohibited aiding or embedding a suicide. Terminally ill patients brought a challenge saying, that the right to privacy should be interpretive include a right to death with dignity that there should be a right to physician-assisted death. But the Supreme Court, in Washington versus Glucksberg, unanimously rejectedly that claim and upheld the Washington statute. Then Chief Justice Rehnquist wrote the opinion for the court. He said, the court protects fundamental rights only if they're in the text of the Constitution, or clearly intended, or there's a long tradition. It says, there's nothing in the text. It says, there's nothing about the framers' intent here. He said, in terms of tradition, at this point 49 of 50 states all but Oregon prohibit physician assisted death. Since there's no right in the Constitution, since it's not a fundamental right, only rational basis review and the court found that the law was constitutional. Four of the justices concurred on the judgement and said, perhaps there'll be circumstances were as apply a law of prohibiting aiding and abetting a suicide is unconstitutional. This is the law facially constitutional and upheld it and that too remains the law to this day that the right to privacy does not include a right to physician assisted death. Now states to their state courts and state legislatures provide protection of more rights than the US Constitution. Several states, I said beginning with Oregon and most recently California have found through state laws or state constitutions, a right to physician assisted death. But it's still a small minority of states, and in terms of the Constitution, the right to privacy does not protect the right to physician assisted death. And that then completes all of the rights that the court has protected or considered under privacy.
