Repro

Madrigal v Quilligan:

10 Mexican-origin women sue USC for non-consensual/uniformed sterilization. Most don't speak English well and all part of rural Mexican subgroup where status of women/family determined by how many kids she has. Ps say concerted effort to sterilize low-income women of certain races, esp if already large families .Drs say didn't suggest sterilization unless patients asked or complications that would make sterilization good option. Drs say policy of explaining irreversibility and wouldn't perform unless sure patients understood and still wanted it. Judge says no ev of concerted efforts so look at case one-by-one, rejects idea that woman in labor pains can't give knowing informed consent, and says all result of miscommunication. P loses. Women testify to: Lying/fear: drs say will die if not sterilized bc of complications from previous pregnancies Women though tubal ligation was reversible even though didn't tell drs; drs didn't find out or communicate that was irreversible Physical pressure: wait until women in labor then ask (again) for consent Substitute consent: ask husbands for consent after telling them wife might die (even after women repeatedly said no) Lack of signature: supposed oral consent Drs testify that either got consent before any procedure/labor or that they weren't the ones who got consent => when conflict of ev, judge believes drs Judge looked at whether drs thought there was informed consent, not whether there actually was

Doe v Jindal:

9 Ps sue bc charged w agreeing to oral or anal sex for money = LA's Crimes against Nature by Solicitation laws require registration as sex offender but prostitution statute only misdemeanor. Statutes have same purpose (punish) and deal w same crime = no rational basis to distinguish. (Prosecutors usually charged white females w prostitution and POC/LGBTQ w CANS)

In re A.C.:

AC had terminal cancer. Drs discussed chemo and thought best for child to wait until 28 weeks to deliver. Unclear whether AC wanted c-section; she said at 28 weeks would die if meant baby could survive but never said anything about before that. Trial judge relies on Madyun to approve c-section since baby viable so state interest. AC initially consents but later says doesn't want it done. Court allows c-section = both baby and mother die. Case posthumously vacated. Right to abortion distinct from obligations to fetus once decided to not timely terminate pregnancy. Closest analogous cases are about right to refuse med treatment for self and for child. Right to bodily integrity recognized in 14th and 9th Amend privacy rights including right to refuse lifesaving treatment BUT limited by state interests in preserving life, preventing suicide, maintaining integrity of med profession protecting innocent third parties. State interest in protecting (un)born children but diff btw authorizing treatment for born child since there no infringement on privacy right of women AC wouldn't survive surgery and baby has slightly better chance if baby taken before AC's imminent death. Can argue that can't infringe on mother's right to bodily integrity to protect life/health of child unless won't significantly affect health of mother and unless child has significant chance of being born alive C-section will affect health of mother bc risks and possible complications. Here, AC only has 2 days of sedated life left at most so c-section won't really affect that but would give child greater chance of survival.

King v Smith:

AL law denies public assistance to single mothers that cohabitate w single or married able-bodies men ("substitute fathers"). P denied public assistance since married man came to her home on weekends for sex even tho wasn't legal/biological father of P's kids. No legit state interest related to law since about state's moral judgments about illegitimate kids and cohabitation no indication that man contributes to kid's funds/welfare so not protecting kid's interests (contravenes point of public assistance is helping needy kids) Siegel: judges still make biological assumptions like idea that pregnancy/potential to get pregnant is what separates women from men so it's natural => so can compel women to have children Ignores how policies affect social roles and political situation Gordon: Victorian feminists opposed birth control bc fear of male sexual tyranny (make it harder to say no when man demands sex since no consequences) and motherhood as only socially acceptable and respected career for women Modern feminist "divide": empower women in careers or focus on state support/recognition of domestic care-work

Cleveland Board of Education v LaFleur:

Board of Ed requires all pregnant teachers to take unpaid maternity leave w/o pay starting 5 mos before expected date of birth to next semester following day when kid turns 3 months. When come back, given priority in reassignment for position that she's qualified for (but not guaranteed job). If don't comply, can be fired. Law unconst. Freedom of personal choice in matters of marriage and family life are liberties protected by 14th Amend Due Process. maternity leave = penalizing pregnant teachers for bearing child P says need these firm cutoff dates to keep continuity in classroom instruction and hiring + some pregnant women become physically incapable of duties so protect health of teacher and baby and education of students. can be preserved when teacher gives Board advance notice of date she'll start leave + too broad since no indiv determination (permanent irrebuttable presumption that all women later on in preg become disabled) Rules limit teachers' eligibility to return to work after birth and no justifiable reason to wait for kid to turn 3 mos Rules help w school efficiency but Constitution protects rights, not speed/efficiency

Steve S v Deborah D:

CA law says sperm donor not treated as if he was natural father of child. P filed petition to establish relationship w Trevor. P originally provided sperm to D but didn't work so had sex for months but no pregnancy. D then used OG sperm donation and got pregnant = P argues child conceived during sex but trial court finds Trevor conceived through artificial insemination. D told child to refer to P as "Daddy Steve" and child has P's last name as his middle name and D and P took child CPR classes together and P often visited child. No rights since leg intent clearly to allow unmarried women to have kids thru sperm donor w/o fear of paternity suit (even when sexually intimate) and leg chooses btw competing public policies, not courts.

In re RIS:

CS (father) incarcerated = biological father or AIS and RIS but parental rights invol terminated. York County Children and Youth Services (CYS) filed app for protective custody bc biological mother KY made request for emergency placement of kids = children judged dependant so placed together in temporary foster home. CYS then file petition to say goal for kids is adoption not reunification = hearing where see goals set out for family = father met goals of keeping in touch w CYS, good behavior, etc and also sent kids cards and participated in prison's read to your children program and requested (virtual) visitation (prison too far and prison didn't have equipment) and tried to call kids (tho fosters refused calls) => goal change petitions denied since seeking termination only based on length of father's sentence. Father wins since made use of opportunities in prison to make sincere efforts to maintain imp position in children's lives. Right to conceive and raise child is fundamental right = complete and irrevocable termination of parental rights is most serious step possible. Parental absence or failure to support child due to incarceration is not conclusively determinative of parental abandonment or basis for termination of rights => need to look at whether parent has used resources at his command while in prison to pursue close relationship with child. Best interest of child guides change of goal proceedings. Concur: Incarceration alone indeterminative of parental incapacity but if length of sentence precludes court from reuniting child on timely basis in order to give child permanent home than incarceration should meet criteria for legal termination of rights. Single-minded focus on reunification leaves children in limbo in foster care. R: idea that prison sentence will mean parent neglectful so just terminate rights now before further harming kids or that clearly bad parent bc went to jail studies showing that takes more risk for white child to be removed than black child; same effects for poverty + doctors likelier to miss that head trauma from child abuse when child is white than when black => different perceptions of same actions based on income/race of parent what about other times when parents go away for long time like divorce or military parent but parental rights don't get terminated (in divorce just limited) other barriers to relationship like having huge distance btw parking lot and prison (hard for elderly to walk) or prisons too remote/far away

Poe v Ullman:

CT laws prohibiting contraceptives (applies to married couples and if drs thought life endangering) but only one prosecution on the books. Contraceptives sold in drug stores and widespread so de facto no enforcement. SCOTUS says no judgment since no live controversy. Douglas (dissent): live controversy since P had several babies w birth defects or stillborn and can't get contraceptive info since crime and CT shut down BC clinics. Also no one bound by "tacit agreement" to not enforce R: issues w selective enforcement and stiga eso against minorities and low income

Johnson v Calvert:

D Crispina underwent hysterectomy => surrogacy K w Johnson (black) w payment in installment (w last installment paid at birth) in return for carrying embryo w Crispina and Mark Calvert's egg/sperm. Relationship fell apart when Ds discovered P had history of stillbirths and miscarriages and P felt like D didn't help enough w insurance policy or premature labor => P threatens to keep baby unless Ds giver her all payments. Ds file suit seeking declaration that they were legal parents and P responds w own motherhood lawsuit = guardian ad litem appointed for child. Genetic tests revealed P wasn't genetic mother but all agreed child stays w Ds w visits from P = trial stipulated that Ds were child's natural, biological, and genetic parents + Johnson had no legal rights to child + surrogacy K enforceable + terminate Johnson's visitation rights. Parent-child relationship applies to natural or adoptive children => imposes rights, duties priv => clearly not meant to encompass surrogacy disputes (not an issue when passage) but provides mech for resolving parentage Act says proof of parentage may be proved by showing person gave birth to child When maternity relevant, can use genetic blood testing; for paternity blood testing can be dispositive that one person not father so using same logic should be dispositive that Johnson not the mother Both women showed proof of motherhood => can only have one natural mother so look at intentions of surrogacy K When genetics and giving birth performed by two diff women, mother is one who intended to procreate the child But for Crispina's actions, Johnson wouldn't have given birth and Crispina intended for herself to be the mother => Crispina is natural mother No public policy issue even tho crime to pay for adoption Gestational surrogacy different from adoption bc both parents voluntarily consent and Johnson not pressured economically to give up own child (since child is biologically the Calvert's) Payments not for termination of parental right; just for services No involuntary servitude prob since no sign of duress and contract acknowledges that couldn't deprive surrogate of right to terminate pregnancy Exploitation probs esp of poor women? No ev that exploits women more than other econ necessity (ex forced to take worse job bc need money) R: but maybe this is different type of labor since gestate baby and possible emotional connections to baby No ev that will foster attitude that children are commodities Argument that women can't knowingly and intelligently agree to gestate and deliver baby has overtones of reasoning that prev prevented women from attaining equal economic rights and professional status => personal and economic choice on part of surrogate Esp here where Johnson was nurse who had prev had her own kids B: also no similar reasoning for sperm donors; focus on inherent/natural maternity or biological event Johnson has no Const right to continued relationship w child since interest in child is that of less of a mother + any right she can assert infringes on the Calverts' parental rights Not analogous to Michael H (deny rights to child he father w someone else's wife) since here familial unit is the Calverts who just decided to form family of their own through novel processes Kennard (dissent): Both woman who provides egg and woman who gives birth have substantial claims to legal motherhood since pregnancy is unique commitment psych and emotionally to unborn child => should apply best interests of child test. Anti-surrogacy ppl say commodifies women/reproductive capabilities/children + also say whoever gives birth is the mother regardless of relatedness ("unique female role in reproduction"). Majority says use intent bc but-for cause, mental concept of child is controlling factor in its creation (sounds like IP), bargained for expectations (but courts don't enforce all Ks and kids not property) => this standard means genetic mother always wins. Surrogate agreeing to carry child is also assumption of parental responsibility = not mere container/breeding animal but conscious agent of creation and her role shouldn't be devalued. Majority should require requirements that comply w model act that would provide more oversight into surrogacy.

Meyer v State of Nebraska:

D charged w unlawfully teaching German to 10 yr olds when law said couldn't teach to students non-English languages below 8th grade => criminal misdemeanor. State Supreme court said it was ok use of police power and affirmed conviction. P wins since P has right to teach and parents have right to engage him to instruct their children. Liberty means not just freedom from bodily restraint, also to contract and engage in common occupations of life, marry, establish home and bring up children, to worship as his conscience dictates and other privileges recognized by common law as essential to orderly pursuit of happiness recognized by free men. Can't interfere w this liberty under the guise of protecting public interest by leg action that's arbitrary ot w/o reasonable relation to some purpose w/i the state police power. Education and acquisition of knowledge are important and should be promoted + related right/duty of parents to give their kids education suitable to station in life (usually enforced by state w laws). Can regulate that schools need to be taught by qualified people and teaching is seen as honorable calling essential to public welfare. State said law was meant to let children learn English and American ideals fully (useful citizens) before training in foreign tongues used by foreign communities and leaders. Leg may have wanted to create homogenous people w Am ideals esp after war but no emergency in US that makes child knowing non-English language so harmful that needs to be restricted so arbitrary and unreasonable relation to ends w/i competency of state idea that state has right to determine values of children rather than the parent The family in con law holds imp part in protection of indiv from direct control of state's imposed will based on racism and religion => this has been criticized by some people like family privacy/liberty shields people from needed protection (ex women from abusive husbands) but what about imp of families for disadvantaged people (esp WOC and religious minorities) that protects them from racist state => protection of family seen as essential part of democracy Some say family autonomy like anti-establishment clause => state shouldn't be able to establish official family form but this is more robust than actual doctrine => state still discrim against certain types of families (esp w unwed fathers or ppl on welfare)

State v McKnight:

D convicted of homicide by child abuse after gave birth to stillborn baby with cocaine metabolites in system = died a few days before delivery due to 2 conditions + cocaine consumption => sentenced to 20 yrs w suspended service for 12 yrs. S.C. Code says homicide by child abuse if commit child abuse/neglect and death occurs under circs manifesting extreme indifference to human life (R). Reckless disregard means indifference to consequences of actions or conscious failure to exercise due care or ordinary care. Maternal crack use effects common knowledge + D knew she was pregnant when using cocaine => sufficient ev of criminal intent (NEG!) No Due Process/notice issue since plenty of cases since 1960s that said fetus was a person and Whitner said fetus was child w/i child endangerment statute. No Eighth Amend issue since cruel and unusual punishment requires sentence out of proportion w severity of crime = look at gravity of offense compared to harshness, sentences imposed on other criminals in juris, sentences for same crime in other juris. Homicide is severe offense and 20 yrs no different from other murderers and other states don't define viable fetus as child but do impose severe penalties for murder or child neglect. No Fourth Amendment issue since urine sample ordered by doctor due to lack of prenatal care = made D sign consent form for forensic test but never told D could be used for arrest => but "clear consent" here (BUT NOT!) Dissent: Leg enacted crim abortion to deal with feticide by mother so clearly did not mean for homicide statute to apply

Eisenstadt v Baird:

D convicted of showing contraceptive articles and handing out vaginal foam at BU lecture to women = Mass overturned conviction for articles since 1st Amend but sustained conviction since crim to give contraceptives unless you're physician giving them to married couple. Struck down since indiv right to contraceptives. Marital couple not an entity w mind and heart of its own but rather consists of 2 individuals so right of privacy is indiv right to be free from unwarranted gov intrusion into matters fundamentally affecting person like decision to have child Griswold said right to contraceptives by married couples so no reason indiv don't also have right to contraceptives Law says meant to disincentivize fornication but can't do this by punishing w child. Law too broad if health is the rationale

McCormack v Hiedeman:

D filed suit against P for getting abortion in manner not authorized by Idaho Unlawful Abortion laws. P wanted abortion but not available in SE Idaho (knew that abortion in Utah) but found out could get abortion using medication and FDA approved meds could be bought online = self-abortion. Idaho laws fine/imprison women for using abortion methods other than 1st trimester by physician. Can't criminally prosecute women for getting abortions since abortion statutes usually regulate 3rd party activity but expressly exempt women from criminal prosecution. Statute places substantial burden on women seeking abortions by forcing them to police themselves and provider's policies for compliance with intricate Idaho law. Also burden bc delays abortion esp bc of access issues, mandatory wait period, travel/arrangements etc.

United Auto Workers v Johnson Controls:

D manufacture lead batteries = exposure is health risk. Before Civil Rights Act, D didn't employ any women in battery-manufacturing jobs but then announce policy: protection of health of unborn child is immediate and direct responsibility of prospective parents but can't assume all women want to be parents => stopped excluding women but said women expecting to have kids need to sign statement saying she had been advised about risk => 5 yrs later start excluding from jobs that could expose them to jobs => apply to all women of reproductive age except those that medically proven can't have kids. Indiv workers had chosen to be sterilized to avoid losing job or paid less bc of transfer and male who was denied leave to lower lead levels bc wanted to be father. Policy struck down. Pregnancy Discrim Act says discrim based on women's pregnancy is on its face discrim bc of her sex + can't be treated diff unless differ from others in ability to work (decision to get preg or work while preg is up to women) Title 7 BFOQ only in special instances when sex discrim reasonably necessary for normal operation of particular business => objective job-related skills/aptitudes. fertile men given choice to risk repro health => explicitly discriminates based on sex. BFOQ only in special instances when sex discrim reasonably necessary for normal operation of particular business => objective job-related skills/aptitudes. Dothard says danger to woman herself not excuse to discrim since she needs chance to weigh risks herself but employing female guard may cause issues if violence breaks out and can't control bc female (ev that this linked to gender). BFOQ qualification must relate to essence/central purpose of job => unconceived fetuses not customers or 3rd parties who are essential to business so no safety exception.

Whitner v State:

D plead guilty to criminal child neglect for causing her baby to be born with cocaine metabolites in system bc D took cocaine while pregnant => 8 yrs in prison. Criminal "child" abuse statutes read to include fetuses so conviction upheld. SC criminal child neglect = refuse/neglect to provide proper care and attention so that health or comfort of child is endangered. SC law recognizes that viable fetuses are persons (separate from the mother) => viable fetuses injured prenatally are covered by wrongful deaths statute. D says law can't include fetuses bc a ton of other laws already address issue + if include fetuses, every potentially harmful action by pregnant women like drinking or smoking could be included regardless of whether act itself illegal. Massachusetts case law similar to SC but in Pelligrini found that fetus not child under 18 yo=> legal rights given to a viable fetus only when protecting mother or parents' interest in child NOT state interest = fetus doesn't have indiv rights => Court refuses to follow Pellegrini bc say SC recognizes indiv right of viable fetus. No privacy issue even tho imprisonment much harsher punishment than maternity leave (LeFleur) since state has legit and compelling interest in health and potential life of fetus throughout pregnancy + no way that Const privacy rights protect right to use crack cocaine since using cocaine illegal pregnancy doesn't elevate otherwise illegal conduct to fundamental right extra burden just recognizes that third party harmed by use. Dissents: Children's Code defines child as someone under 18 and Doe said "child" elsewhere in code didn't apply to fetuses. Code clearly only meant to apply to child in being bc liability requires legal custody which can't apply to fetus + defined harms in statute can't be directed at fetuses. At best, statute ambiguous so should resolve in D's favor. leg has many failed attempts to pass laws addressing drug use during pregnancy so clearly this statute does not apply to fetuses (institutional competency)

NJ v Ikerd:

D sentenced to 5 yrs probation conditional on drug treatment. D hearing bc violated probation and still addicted to drugs but said she was going to methadone clinic. D 11 weeks pregnant at time of hearing and tests showed fetus viable. D wanted to continue probation to finish drug treatment but State wanted to incarcerate her bc of risk to her and fetus from drug abuse. OG Judge ordered incarceration since letting her get methadone treatment in hospital use taxpayer money and no guarantee D would seek necessary medical attention for fetus so only place D can be monitored and baby "saved" is in prison. Judge sentences her to 3 years w 18 month period of no probation eligibility after getting D to plead guilty to violating parole. Order vacated. Punishment like incarceration can be imposed for violation of probation but only if relate to original offense. Sentences should be oriented towards offense and not offender. incarcerated bc pregnant (and to save fetus) = no relation to OG offense = overly punitive and no legitimate penal aim (esp since OG crime = welfare fraud) focused too much on possibility of rehabilitation and baby = enhanced sentence for parole violation so woman would be incarcerated for all of pregnancy (B: like punishing for being pregnant or at least making "bad" reproductive choices) R: this esp true since war on drugs and crack epidemic disp affects black communities B: doesn't forcing women to go to prison and quit cold turkey negatively affect her and fetus Linking incarceration w some repro requirement like using norplant or probation only if promise not to have any more kids for man who didn't pay child support) women on Medicaid in NY need to see nurse who screens them about things like drug use, HIV health educator (nutrition and determine if social worker necessary), social worker (being on medicaid=make women see social worker bc considered "at social risk" but private insurance holders can go to private hospital and avoid this) like gov saying we'll pay your bills but you need to let us surveil your body => pregnancy for some women brings them (private activity of private indiv) into state juris treating pregnant women as exceptional status so can take away rights that wouldn't for other people

Elisa B v Superior Court of El Dorado:

Elisa and Emily in lesbian relationship, told ppl they were partners, exchanged rings => decided to have kids. Both got artificially inseminated by same donor = Elisa gives birth to Chance and Emily gives birth to twins. Elisa claims all 3 kids as dependents since she's primary breadwinner and named Emily her beneficiary on life insurance. Elisa's family refers to twins as their biological family, told employers she had triplets, treated them like her own. Emily says wouldn't have become pregnant if Elisa hadn't promised to support her financially so she could be at home mom. They talked about adopting each other's kids and becoming domestic partners but never did => eventually separated and Elisa supported Emily and twins for a while but then lost job and told Emily couldn't support her anymore. At time of trial, Elisa making $95k. Emily must support based on presumed parenthood. If actively participated in bringing child into world, received children into own home and held them out as own => parent so must support children regardless of gender or sexual orientation (or else the equivalent of leaving child fatherless) Legal parentage not determined exclusively by biology. Uniform Parentage Act also says parentage not dependant on marital status of parents Just bc child can only have one natural mother doesn't mean lesbian couple can't both be parents esp since in Johnson v Calvert both women had produced ev of mother-child relationship => Johnson said child couldn't have 3 parents, not that couldn't have 2 parents of same gender Sharon S v Superior court said both women could be parents of child when mother of artificially inseminated child consented to adoption of child by lesbian partner Legal principles re presumed father status apply to women seeking presumed mother status: receives child into home and openly hold him out to be his/her own (doesn't matter if not biological parent) Leg allowed presumed paternity bc recognized value in having 2 parents as source of emotional and financial support Presumption rebutted by unwillingness of candidate But Elisa not always unwilling since helped w pregnancy and financial support and raised kids ad her own One who consent to the creation of a child cannot create a temporary relation to be assumed and disclaimed at will => impose obligation of supporting If man agrees to have wife art insem and hope for child to treat as own = legal resp of fatherhood and crim resp if nonsupport

Florida Dept of Child and Family Services v Adoption of X.X.G and N.R.G.:

FG became adoptive father of boys XXG and NRG. FG is homosexual and FL last state to ban all gay adoptions w/o exception. Stipulated facts that FG is fit parent w safe/suitable home and that gays and straights make equally good parents. Children arrived ill and in bad condition but thrived w FG. DCFS filed to terminate parental rights of natural parents = children up for adoption and FG applied. Private agency monitoring foster said FG met all criteria and home suitable but recommended against adoption since he was gay. DCFS would have approved application if not for FL law. Law struck down. RB class upheld even if another class/no class appears more reasonable BUT class must be based on real diffs P says unequal treatment since prohibit adoption solely bc gay while let others, even those w crim histories, adopt => could be seen to reflect leg judgment that gays as a group unfit to be parents but no one making this argument. DCFS says RB since better role models and less discrim if in straight family but that's not what FL law does since lets unmarried ppl adopt too Also no prohibition on gay fosters or legal guardians including permanent guardians that state doesn't supervise anymore Less risk of discrim against children of straight couples so then why allow foster R: like Palmore v Sidoti where state can't base on opinions it couldn't hold itself (also can't use discrim as reason to further discrim) No social science justification since studies find no diff btw kids raised in gay vs straight households = accepted by a host of orgs like Am Psych Ass and Am Pediatric Ass => would be irrational for court to hold otherwise => not in best interests of child to prohibit gay adoption No ev that gay households less stable or more prone to domestic violence or that gay parents support adolescent sex/experimentation or that environ determines sexuality of child.

Lofton v Secretary of Department of Children and Family Services:

FL adoption law prevents "homosexuals" (defined as ppl known to engage in current voluntary homosexual activity) from adopting. P registered pediatric nurse who raised 3 HIV+ foster kids from infancy and was exemplary in his efforts. John Doe tested positive for coke and HIV at birth = placed in foster care = private agency placed him w P. P files adoption petition but refuses to answer question about sexual orientation and didn't disclose cohabitation w partner Croteau and refused further requests to supply the info = app rejected. 2 yrs later DCFS offered for P to be legal guardian since stayed so long in house. P declines since lose $300/month in foster care subsidies and jeopardize Doe's medicaid = P says will only do this if interim to adoption. FL law says adoption not right => statutory privilege State acts in loco parentis for kids = overriding state interest is best interests of children seeking adoption, not right of adopter to be parent => ppl seeking to adopt asking state to examine their background to determine best interests of child. P says state refusing to protect Const protected parent-child relationship btw P and Doe as well as relationship btw P and Croteau since right of parents to care/custody/control of child is fundamental right and P shares relationship as loving and deep as those of natural parent and child Usual understanding of family implies biological relationship under FL law neither fosters not legal guardians can have justifiable expectation of permanent relationship and foster designed to be short-term => regulating family units it created, not interfering w natural family units that exist indep. No reason to recognize new fundamental right to family integrity for groups of indiv that formed deeply loving and interdependent relationships since then any group living together w strong bonds could claim to be family => deny state right to remove kids from long-term fosters. Nowhere in Lawrence does court say right of adults to engage in private sexual conduct is fundamental + reluctant to infer new fundamental right from opinion whose language inconsistent w standard fundamental rights analysis + Lawrence never applied SS (applied RB) Lawrence also doesn't control since different issue at stake even tho involves homosexuality since Lawrence explicitly said that it didn't involve minors and this case does + not negative right to engage in private conduct w/o criminal sanctions but rather aff right to receive official/public recognition => no aff right for homosexuals to adopt. B: stereotypes about gays as HIV+, child molesters, recruiters to the gay lifestyle R: putting penalty on homosexual conduct (not sexuality) so violates Lawrence

Johnson v State:

FL statute treats drug dependant mother and crack babies as public health problem, no criminal one => can't prosecute mother (FL statute punishes "delivery" of drugs but nothing on involuntary delivery through diffusion and blood flow like how mother does to child + leg history against criminalizing). OG judge said 7 yrs in prison or 1 yr + Norplant even tho D found out her health conditions made it dangerous for her to use. Instead can use drug use as ev to remove baby to child protective services Prosecution ineffective since incentivize home deliveries for most at-risk population (mother and child) and abortions Court language on women "choosing" to become pregnant even if unwanted pregnancy (choice to not use contraceptives etc) R: issue bc hard to tell difference btw women who have abortion and those that take something and give birth to stillborn or have miscarriage

Gonzales v Carhart:

Fed statute Partial-Birth Abortion Ban since "moral, ethical, medical consensus that partial birth inhumane" = 2 yr sentence for dr but no penalty for woman. Partial Birth Abortion like dilation and evacuation=partially pull out fetus, cut open skull and suction content, then remove fetus entirely. Other 2nd trimester methods like hysterectomy or inducing labor. No undue burden since only prohibits intact D&E not all D&E and showing respect for unborn life. Gov objective of preserving integrity and ethics of med community and law does this since procedure could devalue human life since looks kinda like infanticide. Abortion hard choice so dr may not tell woman all details of procedure so law protects women against regretting abortion or allowing dr to pierce fetus' head. Law and awareness may encourage women to carry child to term or incentivize med advance which further state interest in respect for life. Conflicting ev that normal D&E is always safe alternative => drs don't have unrestrained discretion re patients ever and debate about necessity of procedure so this ban is fine. Convenience not reason to disregard medical standards. Ginsberg (dissent): challenges to abortion are about autonomy, equality and women's right to realize full potential => must have safeguards for women's health. Precedent says so long as substantial med authority support a procedure then need health exception. Ev that this safer for women w certain conditions. Majority allowing moral concerns to override rights and uses paternalistic, antiquated ideas re woman's place to justify (concern for women's emotions, bond of love). Majority disregard viability standard and look at whether fetus anatomically similar to baby. Court's decision jeopardizes women's health and doesn't allow drs to do what's best for patients.

Quilloin v Walcott:

GA adoption laws prevent unwed father from adopting his illegit child. Child in mother's custody for whole life but mother never married or established home with P. Mother remarried Walcott and consented to adoption of child by new husband. P tried to block adoption and secure visitation rights but didn't object to custody of child or child living with mother. Adoption approved even tho P not found to be unfit. GA law = usually child can't be adopted w/o consent of each parent that hasn't voluntarily given up rights to child or been declared unfit even when parents divorced or separated BUT only consent of mother required for adoption of illegit child. Father must either marry mother or acknowledge child as his own or get court order saying child can inherit from him to get veto rights. In response to adoption, P filed petition for legitimation. Trial court finds that P only supported child on irregular basis and tho child visited P and was given lots of toys and gifts by him, mother recently decided these visits disruptive. Child said wanted Walcott to adopt him and to take his name so court decides to grant adoption and deny visitation rights since in best interests of child. Const protects relationship btw parent and child and personal choice in matters of family life = DPC would be offended if state tried to break up natural family over objections of parents and children w/o showing of unfitness just bc state thinks it's in child's best interest. BUT this is diff from unwed father who never sought actual or legal custody of child and when adoption won't place child w completely new parents => this is just giving recognition to family unit already in existence which is what everyone but P wants. (R: unwed father framed as interfering w family unit bounded by marriage = more interested in protecting rights of marital family unit than rights of unwed father) Also no EPC issue since easily distinguishable interests from a married father or one that's separated or divorced. P subject to child support proceedings like any of these categories of fathers but never sought actual or legal custody of child so no significant resp re daily supervision, education, protection, or care of child. P doesn't even want these resp now. These resp and legal custody central aspect of marital relationship so even when marriage breaks apart, father will have borne some resp for child. R: Best thing father can do is marry the mother but the cases that win is when they cohabitate and when they lose is when they're separated/new family unit => here, court ignores facts about relationship btw father and child so court doesn't care that much about this

GE v Gilbert:

GE gives all employees disability plan but excludes disabilities arising from pregnancy => company won't pay for absences due to pregnancy. D.C. says this is violation of Title 7 since sex dicrim since tho pregnancy not disease or accident, still disabling for 6-8 weeks and complications/miscarriages are disabling. Cost of this would be same or higher than disability benefits to male employees per person. Scheme upheld. Geduldig v Aiello = rejected EPC challenge to similar insurance program = insurance plan didn't exclude anyone bc of gender but rather just removed pregnancy from list of compensable disabilities. True only women can get pregnant but not every leg. decision about pregnancy is sex-based. Program divides people into pregnant and nonpregnant people and latter category isn't just women. No risk from which only men are protected and women aren't or vv. Pregnancy different from other included diseases/disabilities. Insurance package can choose to cover some risks and not others = no need to cover pregnancy-related disabilities, which are unique to women, voluntary, and an additional risk, since plan is otherwise evenhanded. Brennan (dissent): Not gender-neutral assignment of risks since excludes risk only women capable on suffering. Classification surrounding pregnancy at least sex-related => can still show that pregnancy discrim is pretext for invidious discrim. GE history of undercutting women's role in labor force and discrim attitude so discrim. Pregnancy not always voluntary and GE covers other voluntary disabilities like sports-related injuries. Plan also covers male-specific procedures like vasectomies and circumcisions so not sex neutral. Discrim effect under Title 7 since plan covers: gender neutral risks, male-specific risks, female specific risks except for pregnancy (which is most common risk).

In re Madyun:

Hospital wanted to order mother to get C-Section. Order granted and affirmed on appeal. Maydun 19 and experiencing first pregnancy + said consistently that wanted natural delivery but not dilated enough. Refused to consent even after told risk of infection and said denial based on Muslim religion. Husband refused and said it was bc no demonstrable danger and not enough time given for vaginal delivery and hospital had not allowed her to move around to assist w delivery. Dr said that dilation abnormal and if don't deliver w/i 24 hours of water breaking, higher chance of infection to baby causing brain damage/death => Maydun had 50-75% chance of this and only 0.25% of this w c-section => court says can force c-section. When competent adult declines medical treatment based on religion, must respect choice unless state can show compelling interest. In case of children, state can act as parens patriae and restrict parental control even when religious objection or just objection under general right of parenthood State has compelling interest in protecting potentiality of human life + by third trimester compelling enough to interfere w privacy interest if not unduly burdensome => can override religious conviction re unborn infants Only thing that separated the infant from separate existence was a scalpel so its life needed to be protected = parents may not make a martyr out of their unborn infant. Forcing drs to wait and see could have killed baby = difference btw gambling w nature re your own body and another to do it w the life of an unborn infant. Here, huge risk to infant and minimal risk to mother. Parents objections based on fact that neither of them thought procedure necessary but neither of them are trained drs but even if objections based on religious beliefs still sufficient state interest to override. R: disproportionately women forced to get c-sections are black and/or from minority religions (muslim, jehovah's witness) this is like saying c-section affects health of newborn but no consideration of consequences of unwanted surgery

Harris v McRae:

Hyde Amendment says no Medicaid funding for abortions unless mother's life endangered, racep/incest victims who promptly report to law enforcement/public health service. No EPC issue since poverty standing alone not suspect class and legit interest in protecting potential life so can subsidize maternal care so indigent women can carry to term w/o having to fund abortions. No duty to fund by fed or state gov in general => no duty for states to fund abortions for which fed funds withheld. Freedom of personal choice in certain matters of marriage/family life including when to terminate pregnancy but states can make value judgment favoring childbirth over abortion => just showing that judgment through allocation of funds Women's freedom of choice doesn't mean constitutional entitlement to financial resources to avail herself of full range of protected choices (would translate DP limit on gov into add obligation to make sure financial resources to pursue choices) No obstacle to abortion here, just funding choice = gov doesn't need to remove obstacles not of its own creation Only excluding abortions bc have potential to purposely end life

Mississippi Band of Choctaw Indians v Holyfield:

Indian Child Welfare Act (ICWA) happened bc concern that lots of Indian children seperated from families bc of abusive child welfare practices and placed w non-Indian families => heart of scheme is dual juris element and procedural safeguards like provision that absent good cause, kids must be placed preferentially in extended family, tribe, or other Indian family (fed policy that indian children should remain in indian community if possible). BB and GB born out of wedlock and both parents Choctaw Indians that lived on reservation. Mother JB gave birth in hospital 200 mi from reservation and executed consent to adoption form before chancery court = Holyfields file petition for adoption and court grants it tho judge aware of ICWA. Tribe moves to vacate saying exclusive juris in tribal court but court says no juris since mother went out of her way to make sure kids born off reservation and arranged adoption and kids never been on reservation. SCOTUS says tribal custody since mother domiciled on reservation. Juris provision central to ICWA = turns on whether kids domiciled on reservation but ICWA silent on def of domicile No reason to think congress meant to rely on state law to provide def of domicile esp since concern about rights of Indians vis a vis state authorities (states part of problem) => wanted to make sure state didn't have juris in some cases and wanted uniformity of law Minor incapable usually of forming requisite intent to remain = usually determined by parents' domicile => illegit children usually determined by mother's domicile even if kid has never been there. Doesn't matter that they were vol surrendered since statute didn't intend to divest tribal juris on basis on indiv action since Congress concerned about indiv but also kids themselves and tribal community esp when kids adopted to non-Indian families. Tribe has interest in child that can't be defeated by woman trying her best to give birth off reservation esp since relationship btw tribe and kids is special. Court acknowledges that kids living w Hollyfields for 3 yrs so painful and prob traumatic if seperate them BUT this isn't determination for court to make => up to tribal court and trauma of this might be less than trauma of not being raised Choctaw. Stevens (dissent): ICWA about forcible removal but parents showed intention that state courts have juris. Majority's def distorts balance btw indiv and tribe/group rights. ICWA gives tribe rights to complement indiv rights not to restrict them. Allowing this to defeat parent's choice not in child's best interests or in interest of stability/security of Indian tribes/families. Tribe has interest when no or one parent abandons child to someone off reservation BUT not when both parents abandon. B: this seems like reproduction is labor in service of the tribe here (as opposed to the state) since don't allow mother to use own Const right to determine placement of child ICWA meant to uphold indiv rights of Indian parental authority against the states but here interpretation of ICWA to oppress parents by tribe Issue is tribes are sov nations But also issue bc maybe western indiv approach vs community approach to raising child Congress started boarding schools to force N Am children to go where can't speak their own language or get traditional knowledge => turns into idea that N Am children better off is raised in white homes Like cultural genocide esp since decimated some tribes bc some tribes had no more children in them ME truth and reconciliation commission ICWA Indian tribes have juris over child custody proceedings if child domiciled on reservation State proceedings re indian children not residing w tribe or on reservation => transfer juris to child's tribe (concurrent juris if not domiciled on reservation) Written consent before judge by indian parents needed for vol termination of parental rights/foster care placement = parents can withdraw consent Higher standards for termination Preference in adoption given to indians Foster care placement w extended family or other places approved by indian tribe

Stanley v Illinois:

Joan Stanley lived w Peter Stanley intermittently for 18 yrs and had 3 kids w him. Joan dies = kids of unwed fathers under IL law become wards of state => kids placed w court-appointed guardians. D says never shown that he was unfit father and married fathers and unwed mothers/married fathers could keep kids so 14th Amend violation. Law allows state to intervene in neglect proceedings on theory that unwed father's existing relationship w children doesn't need to be considered since state defines parent as father/mother, legit child or natural mother of legi child, or adoptive parents. All these people can have kids taken away but only after notice and hearing on unfitness while for unwed father, just need to show unwed and unfitness presumed at law. Cognizable and substantial private interest of a man in children he sired and raised warrants deference and protection if no powerful countervailing interest. Interest of parent in companionship, care, custody of child deserves more protection than economic liberties. Law recognizes unwed family structures like allowing tort recovery for illegit child since familial bonds there are just as warm, enduring, and important as those in more formally organized family unit. IL says law to protect moral, emotional, mental, physical welfare of child and best interests of community and to strengthen family ties but here issue is means, not ends since no one saying state can't take child away from neglectful parents Actually, state goals met by allowing fit unwed fathers to stay with children like in this case Can try to argue that most unwed fathers unfit and neglectful but state concedes that some unwed fathers including D not in this category can't make efficiency argument that enough unfit that can presume since BOR meant to protect liberty from overreaching gov efficiency (state said shouldn't have admin burden of going through hearings since most unwed fathers don't care for child) Also EPC violation since all parents entitled to this hearing. Burger (dissent): No EPC violation when state only recognizes family units bound together by marriage or adoption since these are contractual relationships w legally enforceable rights and duties. State can be justified in concluding based on basis of common human experience that biological roles of mother in carrying and nurturing child creates stronger bonds w child that those formed by male's casual encounter + this supported by fact that unwed mothers usually care more about kids than unwed fathers. R: sounds like saying only way to force fathers to care for children is to force them into contract to care for children + father can just walk away while mothers can be arrested if mothers drop babies off

Pierce v Society of Sisters of the Holy Names of Jesus and Mary:

Law requires all parents to send children to public school = if not, misdemeanor. Supposed interest is to compel general attendance. Enforcement of law would impair/destroy P's business and other private schools. P wins. State can regulate, examine, and inspect all schools/teachers/pupils, make sure teachers are of good moral character and patriotic disposition, certain subjects necessary to citizenship must be taught, and nothing taught that's bad for public welfare. Fundamental understanding of liberty means that state doesn't have power to standardize its children by forcing children to accept instruction from public teachers only. P's undertaking not inherently harmful and usually seen as useful and good + nothing shows that P was doing anything wrong or that emergency that would require extraordinary reg of primary education. Child is not mere creature of the state + those who raise him have right and duty to recognize an prepare him for other obligations.

Webster v Repro Health Services:

MIssouri law prohibits using public employees/facilities/funding to perform abortions + require viability tests before abortion. Preamble says life starts at conception w all rights, P+I available to other citizens. Preamble doesn't regulate abortion so doesn't mean adopting one theory of life to justify regs = just judgment in favor of childbirth over abortion. Public employees/facilities ok since no affirm right to gov aid even when necessary to secure life/liberty/property rights that gov can't take away (just funding/policy choice since women still can go to private places). Viability requirement only ok is drs can use judgment to not perform test if would endanger mother. Roe trimester framework should be reconsidered since not in Const and arbitrary line for state interest in life. Blackmun (dissent): Silently overruling Roe = inviting states to regulate as they please. Roe protects moral fact that every person belongs to himself and not to others or society as a whole. Trimester framework just defines and limits privacy rights and establish benchmark for jurisprudence. Plurality's new test "permissibly furthers the state's interests in protecting human life" is circular and meaningless since this is question court needs to answer to begin with.

Davis v Davis:

Mary and ex husband Junior fighting over who gets custody of frozen IVF embryos as part of divorce proceedings. Trial court decided embryos human beings from moment of fertilization. Mary wants to use them to get pregnant but Junior wants to keep them frozen. Appeals says no const right to beget child when no pregnancy and no state interest in implantation against will of one party. Now, Mary wants to donate embryos to childless couple and Junior wants to discard them. No agreement or law saying what would be done w embryos if not used at time they were frozen. Trial court finds life at conception so embryos are children in vitro => invoke parens patriae and say in best interests to be born so Mary wins => Appeals reverse and say embryos are property but still give them to Mary. TN SC gives eggs to Junior. Proposed models: auto-preserve, auto-discard, give woman choice bc greater physical/emotional contribution, let IVF facility decide, use for research, equity (divide equally) but TN chooses to balance interests If give to Mary, unwanted parenthood forced on Junior = esp imp bc Junior separated from parents as kid and felt like he suffered bc didn't have chance to establish relationship w parents so opposed to fathering child that doesn't live w parents Mary's interest in donating embryos = if don't allow, IVF procedures futile => interest not as significant as Junior's (would be closer if Mary wanted to use them for herself) Conflicting ev about whether these are embryos (life at conception = persons) or pre-embryos (after 14 days cells begin to differentiate = pre-14 days are property not people) => latter supported by all but one expert and Am Fertility Society Prevailing view that pre-embryos deserve more respect than human tissue (since potential to become person) but not respect given to actual persons (no features of personhood yet) => "special respect" => not persons or property but in the middle Agreements about unused embryos should be presumed valid and enforced => if none, weigh interests and usually party wanting to avoid procreation should prevail if other party has reasonable alternative possibility to procreate Here, no implied contract since no ev that either party considered what to do w unused embryos Can't allow Junior veto right to use of embryos bc embryos expire after a while so allowing Junior power to destroy them Const right to privacy = includes right to procreate and to not procreate (procreational autonomy is inherent to basic concepts of liberty) IVF procedure more traumatic and involves more labor than for men but both parents are equal gamete providers

Bellotti v Baird:

Mass law requiring minors to get consent from both parents before abortion; if not, judge can issue court order for good cause shown. Law unconst since allows judge to withhold abortion from competent mature minor who can decide herself and requires parental notification in all cases w/o letting minor seek indep judicial review of competence to decide. Minor's rights to abortion can be conditioned on parental consent so long as state provides another procedure if can't get consent (either way, inquiry is best interests of minor)

Goodridge v Dept of Public Health:

Mass statutes ban gay marriage. (R: selection of straight-acting Ps/traits to say just like you). Law struck down. 3 partners in every marriage: spouses and approving state since marriage is highest institution and enhances welfare of the state State can't interfere directly and substantially w civil right to marriage and right to marry person of choice (choice as essential element of marriage) w limits for safety/welfare No state interest in promoting procreation w marriage since fertility not condition for marriage No interest in raising kids in "optimal" setting since imply standards for family units and penalize kid'd for parent's orientation No interest in conserving state resources since irrational to see gay couples are less financially dependant on each other No moral condemnation Dissents: this is Congressional choice and no EPC issue since no one denied right to marriage and nothing says right to choice applies to same-sex spouses Marriage is institutional mechanism for sanctioning certain family structure/behavior since no biological bonds btw father and child so marriage fills this void => If allow same-sex behavior then sex, procreation, childcare in chaos

McKnight v State:

McKnight appeals on ineffective assistance of counsel claim arguing that counsel failed to call adequate expert witnesses (failed to ask about favorable studies and failed to call expert who said cocaine not cause of death). Counsel ineffective since failed to find another expert even though knew one expert's testimony and conclusions attacked. Also failed to object to using neg definition when required recklessness Ineffective assistance of counsel = 1) failed to render reasonably effective counsel under prevailing professional norms 2) performance prejudiced case No failure to raise Equal Protection issue since not similarly situated classes = leg placed crim abortion law in health section and HCA in crim offenses so clearly two diff purposes (protect unborn children vs expectant mother and unborn child) so sentencing differences fine. No failure to raise intent bc since side effects of cocaine common knowledge so reasonable jury wouldn't have believed argument that D didn't know R: prob is that stillbirth and self-induced abortion looks similar so this started bunch of cases prosecuting women who had stillbirths => charges of killing a fetus => prosecutors can now bring dual charges so either you neglected baby so that it died or you killed the baby (bc took drugs to terminate pregnancy or took drugs)

Matter of Michael B:

Michael B born w positive test for cocaine = mother voluntarily places him in foster care and didn't list father on birth certificate = place in Maggie L's care (foster) and remained for 5+ yrs. Mother identifies father = agency wants to terminate their rights so Michael can be adopted => mother consents to finding of neglect and P does too on condition that kid splaced w godmothers based on facts that both had means to contact kids and help them plan for future but didn't. Court vacates order re P and doesn't place w godparents but P withdraws his objections and mother dies. P, substance abuser, finally get treatment and starts visiting Michael. Agency, Guardian, and P agree to reinstate neglect finding but suspend judgment conditioned on P staying drug-free and getting periodically tested, taking parenting classes, keeping steady job, submitting childcare plan. When suspension almost up = hearing to determine status of child => P unemployed and hadn't been drug tested but Court found he was otherwise compliant so released other kids to him. State showed ev that Michael bonded w fosters and didn't bond w P so psych damage if separated so not in child's best interests => court eventually releases Michael to P bc only reason no bonding w P is bc agency failed to ensure sufficient contacts, not bc P's insufficiency as parent. Appeals says need rehearing to determine best interests esp since extraordinary circ of long time spent in foster care and bonding. Family court rehears = extensive testimony (including from social workers who favored remaining w foster) = still decide that P fit and capable of caring for Michael and best interests that he stay w P. Appeals looks at ev and reverses, gives custody to foster, remands to diff family court to determine visitation rights. Remanded since need to look primarily at whether biological parent fit. Biological parent has right to care and custody of child superior to others unless parent has abandoned right or proven unfit even if state could find "better parents." Children not state or parent's property so look at child's rights and rights of parent to bring up children = child's "natural" home best way to get normal family life in permanent home. Parents going thru temporary crisis encouraged to put kids in foster care w/o giving up parental rights = agency and foster parent priority is to work w parents and help them strengthen relationship btw parent/child and help parent regain custody. State emphasis on biological parents = limited rights to child for foster parents (legal custody remains w agency) esp since don't want placing child in foster care to lead to inchoate right to adopt (or else discourage placement). Parental rights can only be terminated w clear/convincing ev of abandonment, abuse, inability to care, permanent neglect => for last one, allow suspended judgment. Best interests = not hearing where biological and foster parents stand on equal footing and only child's interests at stake => weight past and continued foster care v discharge to parent or other suitable person. Fitness of biological parent is primary factor in determining best interests when child not freed for adoption yet + other factors like emotional wellbeing of child, agency's plan to help reunite family or consideration of other options.

Loving v VA:

Mildred (black) married Richard (white) in D.C. then returned to VA. Police came into bedroom and charged them for violating VA Act to Preserve Racial Integrity. Act prevented interracial marriages and made people get racial composition certificates. Strict scrutiny because of racial classifications so must show legitimate state interest independent of racial discrimination. Laws meant to uphold White Supremacy so violate Equal Protection even if equal application (same punishment for blacks and whites). Also violates Due Process because freedom to marry is a liberty and vital to pursuit of happiness (basic civil right of man). P wins. Right to marry can be regulated by state but within constitutional limit=> first case to strike down state marriage laws (extending civil rights movement into family/private sphere) Marriage as structure for state to regulate and legitimize certain types of sex and reproduction If Loving's marriage invalid, they are cohabitating and fornicating Griswold v CT: idea of marital bedroom as sacred and private place and police shouldn't be let in especially if use force Not super strong decision about fundamental right to marry; just says that can't use race to prevent Race as a social construct: racial composition here decided at birth ACLU challenged racial classifications for being unconstitutionally vague + amicus by Japanese groups saying they didn't know which race they belonged to => but nothing ends up in final opinion VA court's idea that God put races on different continents so they wouldn't mix (natural/religious law argument)

NJ Division of Youth and Family Services v L.V. and C.M.:

Mom refused to take meds to lessen chance that baby born HIV+ from 28% to 7% bc refused to accept that she was HIV+ =>so charged w abuse and neglect. Nurse says no mother who took meds ever passed on HIV to child in her experience. No ev baby born w HIV. Mother's refusal not sufficient for abuse/neglect since no actual harm to child and chance baby would have been born w/o HIV even if no meds. BUT won't transfer legal custody back to mother bc concern she won't be able to financially provide for baby so 6 mo supervision period in hospital to make sure baby receives all necessary care (mom can't take baby out of hospital). Mother's use of alcohol/narcotics while pregnant alone insufficient to find child abuse/neglect => need to look at suffering of child after birth. Act cannot be construed to permit gov interference w women's right to control body and future during pregnancy => mother's decisions about medication she takes during pregnancy left up to her discretion in consultation w doc (part of right to privacy) Mother's decision here not one that everyone would have made but that doesn't mean abuse/neglect.

Carey v Population Services International:

NY education law prohibits selling/giving contraceptives to minors under 16 and only pharmacists can distribute contraceptives to adults and can't advertise or display contraceptives. 14th Amend protect due process right to privacy in certain zones/areas including interest in independence in making certain types in important decisions like marriage, contraception, procreation, family relationships and childrearing (right to bear and beget a child) No interest in maintaining medical standards/maintaining life or other compelling interest that would limit distribution to licensed pharmacists (ex don't want kids to sell or want ppl to ask about merits/risks) Possible state interests in regulating conduct/morality of minors but right to privacy in procreation decisions extends to minors esp since non-hazardous contraceptives (esp after PP v Danforth says blanket parental consent to abortion not ok) Not disincentivizing minors from sex since would be prescribing pregnancy as punishment and also under same logic would have to ban abortions/contraceptives for unmarried couples since extramarital sex against public policy in some states Powell (concur): standard of review re social decisions should be RB. Sate can decide what minors incapable of re sex and marriage (ex could enact law requiring parents to counsel kids re sex) but here infringes on 14th Amend since can get married and have sanctioned sex but can't get contraceptives and interferes w parental rights to give kids contraceptives (childrearing decision). Rehnquist (dissent): this is state decision about children having sex, not about pregnant women => just seeking to deter conduct that could lead to unwanted pregnancy. KTBB: Gov programs for poor/black women focusing on norplant based on welfare queen stereotype (have more kids to increase welfare) => idea that ppl having the most kids are the ones least capable of supporting them ("innercity" "underclass") Put it in and refuse to take it out = 5 yrs protection => often medicaid covers implantation but won't remove early (in few cases, woman had to reimburse implantation cost too or remove conditional on consent to tubal ligation) = why is this any diff from China's one child policy (also enforced w gov "benefits") Ppl saying that helps break cycle of poverty, prevent teen pregnancy, prevents "unqualified" ppl from having kids = eugenics Norplant as tacit approval of teen sex? Doesn't prevent other harms like STDs or prevent teen sex Also based on moral judgment that kids should be had in marriage (since most teen moms don't marry father or give child up) Side effects = esp big issue for poor women who can't afford to see doctor and issues w removing Testing of norplant in 3rd world countries w/o informed consent of prev med exam + historical use in these places for population control Population Council developed Norplant but also linked to eugenics New methods like Depo injections = more affordable but need to wait til drug wears off and side-effects => may be even easier to abuse since can "inoculate" women w/o knowledge or consent Limits on contraceptives access Conscience clauses: right to refuse to provide abortion/contraceptives Church amendment: can't deny institutions funding for denying abortion/sterilization and institutions can't take actions against indiv for beliefs about abortion Argument that just failing to provide benefit, not inflicting liability or that it is lifestyle goal not med service (but often serious health risk) But failure to perform to professional standards is violating duty (refusal based on moral ethics not the standard in medicine)

Burton v FL:

OBGYN trying to force high-risk pregnant woman to undergo medical confinement/treatment that dr recommended => trial court finds "substantial and unacceptable risk" of severe injury or death to fetus if appellant continues to ignore. Trial court says that rule btw parent and child is that welfare of child is controlling factor so state interest overrides privacy concerns => says P must comply w bedrest, medication, delaying delivery (B: but this assumes family has resources/money to do this) Every person has right to be let alone and free from gov intrusion into private life = right to sole control of their person and to determine what will be done w their body. Competent person has right to choose/refuse med treatment and all decisions concerning one's health => can only be overcome if state has compelling interest. Viability is when state has compelling interest in fetus. If compelling interest, must show means narrowly tailored. Legal rule that welfare of child is controlling factor doesn't apply in this case since that case was about parents refusing blood transfusion for child so no privacy rights of pregnant woman involved there. Correct test is compelling interest. Childbirth now super high tech = increased medicalization (ex c-section) but US still has one of worst rates for infant/mother mortality in developed world => can look at doctor and pregnant women as power struggle (even tho drs supposed to help mothers) c-section=US has highest % in world and above WHO recommendations this just good way of defending against med mal since can say we did everything/most extreme intervention possible US is only developing country whose maternal mortality rate that's going up => lack of access to prenatal care and poor health of women bc of poverty and structural racism + also less availability of high quality of abortion services + crappy labor/delivery care esp for public hospitals or Medicaid women Colonization of womb

Skinner v OK:

OK habitual criminal sterilization statute allowed 3x offenders for felonies of "moral turpitude" to be sterilized but exception for political crimes. P convicted for theft => AG initiates proceedings => sterilization. Discrimination when law applies equally to two ppl who commit same quality of offense. Violates Equal Protection because sterilize for blue-collar felony of larceny but don't for white-collar misdemeanor of embezzlement even though same crime. No biologically inheritable trait that differentiates thief from embezzler. Different from Buck v Bell because here no chance to be heard that he won't be parent of socially undesirable children. P wins. Marriage and procreation are fundamental rights; sterilization is irreparable harm. Doesn't reject eugenics arguments or say sterilization illegal Stone (concur): if think biologically inheritable traits, must sterilize all criminals or none. Science hasn't proven all traits inheritable. States can't interfere with individual liberty to prevent passing on societally harmful traits without proper inquiry/procedures.

Muller v Oregon:

OR passs act that limits women's work hours but struck down same law for men OR says women have equal contractual rights as men whether married or not. But women bc of sex naturally have diff limitations and this is general knowledge. Women's physical structure and maternal functions = limitations. History shows woman always dependant on man esp since man stronger => women not equal competitor w man in terms of work/labor so diff class of people so can sustain leg for women even when can't for men bc she needs protection. Preserving health of woman is public interest bc healthy woman leads to healthy offspring (wellbeing of the race). R: most likely mean white race since this is eugenics era decision + since black women worked in houses all day during this era Even though equal contractually, politically, legally still can't ignore inherent physical differences => this law for woman's benefit and for benefit of all. R: medical system collaborates with criminal justice/legal system to determine which women to regulate => often trying to say that what they're doing is best for the women but actually what's best for state/fetus prior to eugenics was system of chattel slavery = laid foundation for eugenics=> critical for regulation of pregnant women's bodies since black women considered property => early idea that women could be actual property and made to work (but not white women => hypocrisy about role of women since ideas don't apply to all women) slavery as idea that fetus was separate property than mother (not some sort of new idea that grew with modern tech allowing imaging of fetus) = slaveholder could sell fetus prior to delivery of baby + idea that could hurt pregnant woman while protecting fetus (method of punishing pregnant woman was digging hole in ground to protect baby and beating woman on back) reproductive labor valuable to slaveholders since produced future slaves esp after abolition of slave trade one of first laws in colonies was that children born to black mothers would have status of black mothers (even when fathered by white men) => not natural that black children had status that they had bc of mother's reproduction + dev of race and linking repro w race)

Bradwell v IL:

P applies for law license but IL supreme court deny her admission to the bar because she's a woman. No violation of 14th Amendment Privileges and Immunities Clause because not a privilege for any citizen to pursue any and every profession so state can use police power to regulate => not a privilege for women to practice law. P loses. Women part of different sphere (domestic) and naturally timid so not fit for certain careers (role of wives and mothers) Religious views and morality that civil society must mirror (natural law) Women getting careers would break down family institutions R: other women working (ex black women, poor women) Women aren't even allowed to be self-governing (coverture, vote) so why let this happen

US v Flores-Villar:

P challenging INS 1401a which imposes 5 yr residency requirement after age 14 for citizen father but not for mothers. P born in Mexico to Mexican mom and US dad (who had citizenship bc his mother was birthright American). Father and grandma brought P to US for med treatment and raised him in US. Father not on birth cert but filed acknowledgment of paternity. P then arrested for being deported alien in US = tried to challenge on basis that thought he was US citizen by father. P loses. Intermediate scrutiny test set out in Nguyen = gov interests in IDing that legitimate parent-child relationship exists and opp that they had chance to develop actual relationship. Gov interests here are avoiding stateless children met by relaxing requirement for women since many countries confer citizenship jus sanguinis rather than jus soli so illegit children of US mothers likelier to be stateless. Also want link btw unwed citizen father and country is imp interest. Not irrational to think that residence in US advances link btw citizen, country, and foreign-born child.

K.M. v E.G.:

P filed petition to establish parental relationship w twins D, former lesbian partner, gave birth to. P says she gave ova to D, who gestated them. D says wanted child and applied for adoption before met P and made it clear to P that she wanted to be single parent. During donation, told P that wouldn't consider letting D adopt the child for at least 5 yrs until felt relationship was stable since didn't want custody battle => P signed form waiving all rights to the child (like wouldn't try to discover ID of child) and D signed form acknowledging custody of child. P says only had form for 10 mins and thought that part didn't apply to her since she would know ID of child anyway. Twins birth cert only lists EG as parent and EG added twins to health insurance but KM did not. KM referred to her parents as the kids grandparents but as promised did not tell anyone she donated ova to EG. EG asked KM to marry her after twins born but relationship falls apart 6 yrs later. Lower courts find only EG parent since only EG intended to bring about birth of children that she intended to raise as her own and KM did not hold children out to be her own tho she treated them as if they were. KM is parent. No reason to treat ovum donors as having greater claims to parentage than sperm donors Johnson v Calvert said wife whose ovum implanted in surrogate is natural mother since genetic consanguinity can be basis of finding maternity, just like it can be used to find paternity Likewise in this case, couple intended to produce child that would be raised in their own home since KM didn't intend to truly donate egg; intended to give ova to lesbian partner who she was living w so they could raise child in own home Consanguinity and circ = both KM and EG are mothers of child Recognizing KM's parenthood doesn't infringe on EG's rights since both have equal claim/rights to child Waiver irrelevant since woman who supplies ova to lesbian partner w understanding that resulting child will be raised in joint home can't waive responsibility to support kids Kennard (dissent): P donated ova and knowingly + voluntarily waived rights to the kids = analogous to sperm donor's situation. According to majority reading, sperm donor would also be legal parent if donate w understanding that resulting child will be raised in joint home Werdegar (dissent): when no natural or adoptive father exists, 2 women can become mothers of child through adoption or bc both qualify as natural mothers under Uniform Parentage Act. Should look at intent of parties (whether donate w intent to raise child as own) = only EG mother. Can't recognize KM's right w/o infringing on EG's. No reason to treat this differently from sperm donation

In re: Guardianship Moe:

P has schizophrenia, got pregnant, but psychotic break during pregnancy. Dept of Medical Health petition for P's parents to be appointed as her temporary guardians so they could consent to abortion. P said multiple times and at trial that she didn't want abortion. Lower court judge said she was delusional since she denied she was pregnant and said she knew the judge => incapable of making own choice about abortion. Judge P can be tricked/coerced into getting the abortion and sua sponte also says to sterilize her. Judge relied on too little ev that actually incompetent. Even if incompetent, substituted judgment based on what P would have wanted if competent, not what judge thinks is in P's "best interests." P wouldn't want abortion if competent so can't force on her. Sterilization order violates Due Process since no notice/chance to be heard/appeal. P wins. Parents appointed as general guardians but vacate order for sterilization and vacate appointment conditional on abortion. Decision to bear/beget child fundamental to everyone, including mentally incompetent people + must have notice, chance to be heard, right to appeal B: this is interesting in comparison to Buck v Bell's 3 generations of imbeciles Even if incompetent, must use substituted judgment, not best interests test since woman's "actual preference" must play a significant role in outcome Substituted judgment (what would patient decide to do if competent) vs best interest test (what would she want for her incompetent self if she were competent) Doesn't mean someone can't come in and petition for sterilization Issues w consent in institutions Sterilization and disability: sterilization still ok with proper procedures in most states => look at competency and best interests like ability to care for child, imminent sexual activity etc Courts often determine parental ability based solely on existence of disability HRW, ICESCR, ICCPR, CRC, CAT all ban forced sterilization Issue since disabled women told implicitly they shouldn't be mother but also hard to get BC so sterilization seems like only choice Sterilization in prisons for sex offenders and for women (idea that manipulating way into jail for better healthcare or that kids will be on welfare)

Relf v Weinberger:

P moved to housing projects with mom and sisters. All given unsolicited experimental birth control injections. Later, sisters taken to hospital and signed sterilization consent forms even though they couldn't read and drs told them just getting shots => sterilized. Public Health Services grants used to fund sterilizations and sterilizations often coerced (refuse to deliver baby unless sterilize) => PHS sets out new regs requiring informed written consent and committee review for sterilizations. No statutory authority to fund sterilizations (no constitutional challenge). Inadequate procedural safeguards so need to protect P from coercion like threat to revoke/deny welfare. Need to verbally tell Ps this and add to consent form that can't withdraw benefits. P allowed to withdraw consent. P wins. Mentally incompetent people and minors can't give consent to sterilization and representative's consent not substitute for irreversible op Must have appropriate standards/safeguards before depriving people of right to procreate Line between eugenics and family planning murky Also racial differences: white women have hard time getting sterilized bc drs think they should be having babies Socioeconomics since hard to come back for sterilization if waiting period

Villegas v Metropolitan Government of Nashville:

P pregnant when car stopped by police = couldn't produce license = later search revealed P was undocumented immigrant = held in jail for 2 days as medium-security inmate. Water broke while in jail so transported to hospital w/ legs and arm restraints = keep leg restrained to hospital bed so woman can't walk around. P loses since no ev that subj disregard of harm. 8th Amend deliberate indifference = obj substantial risk of serious harm + officer subj knows and disregards this. Shackling pregnant women offends modern decency = obj standard met BUT exceptions if serious/imminent harm to self/others or flight risk. Issue here is that shackling doesn't deny or interfere w med treatment but P argues that it may increase complications => this isn't really conditions of confinement issue. Other courts found that shackling violated modern standards of decency esp when look at AMA, Am College of OBGYN, UN min standards for treatment of prisoners say that shackling only as precaution against escape or prevent prisoner from injuring people/self/prop only if other means fail => shackling can interfere w ability to provide care and demeaning. D says P's status as medium security inmate ok bc threat of deportation made her flight risk and could encourage other unlawful behaviors but jury could find that P was so pregnant that not flight risk. Subj component not met since no ev that Ds knew about risks or no restraint order and conflicting med testimony about risk of shackling and DVT/clotting since women encouraged to be ambulatory to prevent this so question of whether leg restraints prevented this and created risk of imbalance/falling + possible psychological trauma. Dissent: Obj standard met bc no dispute of fact re flight risk. Ps security status was automatically assigned and didn't take into account that she was v pregnant so no flight risk or risk of harm to others since not held for violent crime. No need to shackle since armed officer w P wherever she went in hospital so escape unlikely so no legit penological purpose.

Doe v Gustavus:

P pregnant when incarcerated and refused to have labor induced when prison wanted to do it but agreed to have it done a week later. P wasn't supposed to know date of inducement appointment since "security risk" so put in segregated confinement (P says her refusal caused stir and that's why in seg). P's water broke at 1am = 4 hrs later nurse tested pants but found no amniotic fluid since pants already dry. Guard later refused to take P to hospital since nurse said water didn't break + no pain meds + no nurse until crowning. 2 nurses saw P's contractions throughout day and concluded she was in false labor. Midnight P presses emergency buzzer since to much pain so got some ibuprofen but nurse says not in labor since pain in wrong place and stomach soft. P ends up delivering baby herself. D says P did that on purpose to get out of seg => put P in max security and gave her no post-birth stuff. P wins on opposition to SJ on deliberate indifference. 8th Amend cruel and unusual punishment includes deliberate indifference (subj knew and disregarded excessive risk to health and safety) to serious condition. All signs shown by P (rectal pressure, vaginal discharge, pain etc) = any nurse eligible for license in Wisconsin would have known to send patient to hospital and that patient was in labor Jury could find that D's decision to put late-term pregnant woman in seg was deliberate indiff and meant to make P's life as hard as possible so cruel and unusual

Lehr v Robertson:

P unwed father of child he's never supported and rarely seen in the 2 yrs since her birth = says right to notice and hearing before she's adopted. Mother married Robertson 8 mos after child born and 2 yrs later Robertson files adoption petition. Petition granted. NY has putative father registry and man can register intent to claim paternity of child = would then get notice of adoption proceeding. P did not do this. P not in any of these categories that NY law requires notice to be given to. P filed visitation and paternity petition and order of support and only learned of adoption proceeding when venue changed. P's lawyer sought stay of adoption proceeding pending paternity test but judge said already granted adoption since didn't think he had to give notice even tho he knew paternity suit pending. Caban about 2 natural parents that had joint custody then father challenges court ordered adoption of kids by new husband = EPC violation so court didn't address DP issue but dissent said paternal rights do not spring full-blown from the biological relationship btw parent and child since need more enduring relationships. When unwed father demonstrates full commitment of resp of parenthood by participating in childrearing = interest in child gets substantial protection under DP since he then acts as father towards children. Mere existence of biological link doesn't merit or equal Const protection since family relations depend on emotional attachments that derive from intimacy of daily association and the way it plays a role in promoting a way of life by instructing children. Biological link just offers natural father unique opportunity to dev relationship but if he doesn't Const won't come in to compel state to listen to his opinion about child's best interests. Best protection of putative father's ability to form relationship w child are laws governing marriage but that depends on consent of both parents so NY developed law protecting unwed fathers. Right to receive notice in P's control by mailing postcard to registry but he never did and doesn't matter if this was only bc ignorance of law. P says even if NY law adequately protects putative fathers, he should have gotten special notice bc judge and mother knew about suit but Const doesn't require special parties for non-parties who are capable of protecting own rights esp since NY statutes protect his inchoate interest in establishing relationship w child. Existence of relationship w child is relevant criteria to evaluate rights/interests re child and P had no relationship so no EPC issue. P also says law has invidious gender based classifications since unwed mother always can veto adoption and get notice but only some putative fathers can but court says no Dissent: Q is whether state can deny notice and opp to be heard to putative father when it has actual notice about his existence, whereabouts, and interest in child. P says he and mother cohabitated and mother told him that she had reported him as father to social services. P visited her and baby everyday in hospital but once left hospital mother started concealing whereabouts but when could find mother, visited her. P hired PI and when found mother she already remarried but P offered financial assistance and mother refused and threatened to have him arrested if he didn't stay away so P got lawyer. P never had chance to be heard since legitimation proceedings dismissed and didn't have say in adoption since no notice. Must assume P's allegations true = would have had relationship w child if not for mother's actions. P has unmistakably identified himself by filing a paternity suit and notified adoption court of his interest = should have given them notice.

University Health Services, Inc. v PIazzi:

P's petition to maintain D's life support to preserve life of unborn child. D braindead and 20.5 weeks pregnant so fetus already quickened but not viable. Reasonable possibility that w life support, D's body could survive until viability but possibility fetus w suffer from disability. D's husband wants to terminate life support but baby daddy (Hadden) wants to maintain it. Guardian ad litem appointed to represent interests of the child. Life support petition granted R: why appoint a separate representative for the fetus when already so many people interested in fetus already= appointed as it fetus were a child (applying law that typically applies to born child) Roe says state can assert interest in protecting potential human life = Prev state law Jefferson said could force mother to undergo c-section even tho violate her religious beliefs if fetus viable in re LHR said public policy favoring maintenance of every possible chance at life + specific leg. saying decision in will to terminate life support cannot affect unborn child. Public policy says maintain life support for brain dead mother so long as reasonable possibility that fetus may grow and survive Right to terminate fetus based on privacy and privacy rights gone if mother dead B: this is interesting case bc ignored woman, doctors, and husband in favor of baby daddy (which seems contrary to other cases) R: if woman is pregnant (or even has potential to be pregnant) can the state treat her in ways that would be unconstitutional if not pregnant other cases where woman not brain dead but rather in coma or persistent vegetative state = continuing life support might harm/hurt woman also living will cases where exception for pregnant women = even if in will to terminate life support and even if woman could feel it, hospital won't remove life support Just bc woman not capable of speaking doesn't mean she's incapable of speaking through representative aka her husband but court ignored this

Prince v Commonwealth of Massachusetts:

P, Jehovah's witness, convicted of violating child labor law and appeals based on religious conviction. P was aunt and custodian of Betty Simmons, 9 y.o. and ordained minister = usually go distribute Watchtower and Consolation even tho P was warned by school attendance officer to not do this. P loses since state protecting child. Custody, care, and nurture of child rests first w parents who primary function and freedom are to prepare child for obligations that state can neither supply nor hinder => private realm of family life that state cannot enter. State as parens patriae can restrict parental control by requiring school attendance or regulating child labor = this isn't nullified just bc parents religious claims (ex compulsory vaccination) esp if about stuff affecting child's welfare Right to engage in propagandizing the community creates situations hard for adults to deal w let alone for tender children => emotional, psychological, physical risks. Parents can become martyrs themselves but are not allowed to make martyrs of their children before kids reach age of consent where kids can make own decision. State reaches into areas where parental supervision can't entirely eliminate ill effects of prohibited conduct => this is what is happening here w public proclaiming of religion in public places. Dissent: 14th Amend protection of religious training/activity whether by child or adult. VERY strong presumption of const when laws infringing on parent's right to encourage their children to practice religion. State interest in shielding children from general evils doesn't warrant every restraint on religious activity. Child's exercise of religion done in orderly and lawful way and const right to express her views and worship esp in public street. No grave, immediate, substantial harm here even tho majority talks about all these harms possible from working on public streets + no indication that religious beliefs here would harm child. Right to participate in unorthodox/minority religions still vulnerable esp since lots of discrim and harassment for Jehovah's witnesses.

Tummino v Hamburg:

Plan B must be taken ASAP to be effective so FDA approved to make them over the counter. Sec of Health and Human Services reverse bc of politics so FDA rejects 2 pill plan B since say petition incomplete. Judge grants petition bc denial motivated by politics not science = if FDA thinks there's such a big diff btw 1 and 2 pill Plan B, can limit over the counter release to just 1 pill version. No stay pending appeal on release Plan B. FDA says drug approval requires scientific judgment that courts don't have capacity to make + no harm since agreement to release Plan B to stores w on-site pharmacy and require proof of age (15+) so close enough to 18 (when access to other contraceptives/abortion) but not all women live near qualifying stores and people under 15 will be forced to get prescription which takes time and could make Plan B ineffective Racial impact since blacks and low income ppl less likely to have photo ID

Planned Parenthood of SE PA v Casey:

Provisions in PA Abortion Control Act = informed consent, specific info 24 hours before abortion, parental consent for minors (w/ judicial bypass), married women must notify husbands, reporting requirements for facilities. Reaffirms Roe's central holdings but reject trimester framework. Informed consent upheld (requires woman to give written acknowledgement of info about child's prob age and info about fetus, alternatives to abortion, risks of abortion). Giving woman truthful/non-misleading info ok since legit state interest in making sure she doesn't make choice she'll regret= overrule Akron and Thornburgh. Wait period upheld since time for reflection since not undue burden (even if affects low-income women and opens women up to harassment)=> this is just persuasive measure favoring childbirth. Notification of spouse unconstitutional bc spouses that would publicly shame her or divorce her, inflict emotional/psychological harm on her, harm other people, or control finances=> also issue bc usually abusive families shrouded by secrecy so women being abused to use exception (no parental assumption for women). Women have to actually carry the child so their interests triumph over husbands. Parental consent provision ok. Recordkeeping ok. Claims to reaffirm Roe's essential holdings: 1) right to choice to abortion pre-viability w/o undue interference (undue burden test) from state (purpose of effect of placing undue burden/substantial obstacle test) 2) states can restrict abortion post viability if law has exceptions for pregnancies that endanger maternal health 3) state has legit interest in protecting health of woman and potential life of fetus from beginning of pregnancy BUT rejects trimester framework since misconceives pregnant woman's interest and undervalues state interest in protecting life. Right to abortion from 14th Amend substantive Due Process liberty. Abortion unique bc consequences for woman, people assisting, family, society (violence on innocent human life). State interest in potential life throughout preg = can take measures to ensure woman is informed = can't invalidate these measures as long as meant to persuade woman to choose childbirth => but can't be undue burden (substantial obstacle). B: undue burden is lochner era test based on economic freedom; also used for dormant commerce clause Women who carry children to full term=anxieties, pain, and sacrifices (that "women bore from beginning of human race that ennobles her + gives infants bond of love") => suffering too intimate and personal for a state to insist on this based on own vision of women's role (must be shaped in large part by women's own conceptions of her spiritual imperative/place in society. Roe is decision about personal liberty (like Griswold) and bodily autonomy/integrity (like cases about mandated medical treatment like sterilization) => so can't justify letting state interest in protection of life Reliance issues: affect women's ability to participate in economic and social life by controlling own reproductive lives. Women's right to decide when to beget and bear child recognized in Roe (if not, state right to restrict this right for pop control or eugenics) Medical advances that have made abortion safer only affects time limits, not Roe's central holdings. Stare decisis issues: Lochner/Plessy overturned bc underlying factual assumptions wrong and society came to understand this such a uniquely controversial case that the decision settled the issue=would undermine court's legitimacy to reexamine. No change in facts known to court or cultural context. No reason to overturn major decision just bc different judges on court. State has substantial interest in potential human life. State can't use interest in potential life to justify intrusion before viability BUT structural mechanisms for state/parent of minor to express respect for potential life are ok if not substantial obstacle = uphold state measures to convince her to choose childbirth is reasonably related to that goal B: but no similar mechanisms for vasectomies Stevens (dissent): trimester framework fine since not contradiction that state had legit interest in potential life throughout pregnancy but it just doesn't justify regulation of abortion before viability. State interest must be secular. Balanced against this is women's interest in liberty and bodily integrity. State can express preference for childbirth or enact frameworks to let women make informed decision but questionable whether state can persuade women to choose abortion. Blackmun (concur in judgment): violate privacy rights bc infringe on bodily integrity (physical invasion bc health consequences and physical changes) + infringe on right to make critical life choices re reproduction and family planning. Implicate Const. guarantees of gender equality since assume women owe us "natural" duty of childbearing/birth=> about women's role on society. Rehnquist, White, Scalia: Roe was wrong and should be overruled. Abortion distinct from marriage, procreation, contraception since about ending a potential life + woman not isolated in pregnancy. No deep-rooted historical fundamental right to abortion so shouldn't use SS. Roe should be overruled bc Const doesn't protect right to abortion just like it doesn't protect bigamy since Const silent and right not historically rooted. Should use rational basis. Not court's place to be dealing w/ this issue + should allow for regional leg. differences.

Sojourner A v NJ Dept of Human Services:

Ps challenging Work First NJ act (WFNJ) that caps level of cash assistance at level set when family enter welfare system tho can receive more food stamps/medicaid w birth of another child.. Both Ps say lack of cash assistance left them w/o adequate food, shelter, necessities. D.C. said legit relationship btw classification and ends (promote self-sufficient citizens and promoting parity btw welfare recipients and working citizens). Appeals court affirms = NJ law at best indirectly and insignificantly affects woman's fundamental right to make procreative decisions + just doesn't give person more benefits (doesn't eliminate all benefits that she's already receiving). WFNJ was welfare reform law meant to promote self-sufficiency and family stability => measures to encourage indep and get ppl off welfare like developing educational and vocational skills. Indiv assessed re work readiness before getting welfare = plan made for them so they need to continuously seek employment or accept placement. State subsidizes training programs/childcare and other supportive services and reduces work requirements for those enrolled in post-secondary education + keep subsidizing med and childcare expenses 2 yrs after ineligibility for cash assistance. 14th Amend EPC and DP protect right to make procreative decisions => if state intrusion on fundamental right or suspect class the SS; if lesser interest then RB so RB here. EPC = weigh restraint/denial against apparent public justification and decide whether state's action was arbitrary or whether sufficient public need (continuum concept). Nature of right v nature of burden v nature of public interest/need. Precedents like C.K. v Shalala said caps pass RB since rationally related to interest in breaking welfare dependency, promote indiv resp and family stability + no privacy issue since having a kid doesn't result in reduction of benefits and no const right to gov subsidy in procreative choices. even if assume procreative choice affected by cap, no undue burden since procreative choices prob always affected by finances and working families don't get wage increase when new child born and NJ has other programs like work training that improve life of child born into welfare family. R: You get tax credit for having kid so is this just discrim against poor families; also middle class families can always go on welfare but poor families don't have other alternatives R: pushing people into low wage work and children into child welfare system => some states share info btw welfare system and child welfare so report mothers if mother not keeping up w requirements Prev EPC case re Medicaid funding for abortion = no fund right to funding for abortion but right to choose so if withhold funds when health in danger but not when life at stake Here life of mother not at stake and cap affects child same as not getting wage increase would have on child of working family. Not case about woman's right to choose when/if to have child => about whether state has to subsidize that choice => no.

Burwell v Hobby Lobby Stores, Inc.:

RFRA enacted = move back to substantial burden test (even if no targeting). ACA requires employers w more than 50 ppl to offer min essential health coverage or else fine so must cover preventative care for women. HHS says this includes contraceptives and sterilization but allows exemptions for religious nonprofits and employers. Hobby Lobby and Conestoga Wood run by christians who think life starts at conception so object to contraceptive methods that prevent implantation. Serious burden on religious belief since make D complicit in conduct that violates religious beliefs or else pay fine or for employees to get ACA and competitive disadvantage if do this. Dictionary Act says persons include corps, companies and nonprofits are persons under RFRA so for-profit corps are persons whose religious freedom is protected (since corp can have goals other than profit, like social causes of religion) Congress confident in court's ability to determine whether beliefs religious or not so doesn't matter if one goal is profit Look at subjective religious belief, not whether it's reasonable (which court's have no place questioning) so this is about subj belief that Ds acts which are innocent in themselves facilitates immoral acts by another No compelling state interest re public health and gender equality since RFRA says look at state interest re indiv w objection. Least restrictive means would be for gov to provide women who can't get coverage from their employers w coverage for contraceptives => RFRA can require gov to spend some money to protect religious liberties protected by it Ginsburg (dissent): Casey said control over reproduction allows women to participate equally in economic and social life so need access to contraception esp since women need to pay more for preventative care so economic barriers Senate voted down conscience objections bc "privilege religion/opinions of employers/insurers over practice of medicine" Corporations are not people since Dictionary Act sais corps only people unless context indicates otherwise = corps do not have conscience/belief/feelings but non-profits are like larger religious community Link too tenuous to be substantial burden since just putting money into undifferentiated funds financing wide array of services Decision to claim contraceptive benefits made by employees not corps so state interest in allowing women to access expensive contraceptives they may not be able to afford A "least restrictive means" cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets Forcing women to get contraceptives from gov is obstacle and slippery slope for "just let gov pay" Lee: "when followers of a particular sect enter into commercial activity as a matter of choice the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity." This imposes employer's religious beliefs on employees issue of which beliefs court deems worthy of protection/exemptions (esp re non-Christians)

C. Assisted Reproductive Tech

Roberts: privatization and punishment Poor women denied welfare benefits for extra child when privileged women implanted at unregulated fertility clinics and celebrate when white women have sextuplets => neoliberal state transfers services from welfare state to private market (private remedies and state punishment) Judicial and leg decisions reflect societal views that poor and black women not fit to be mothers in first place Focus on depression of wealthy/white mothers while inhumane treatment of black and marginalized mothers Reduced support for families at same time increased intervention Wealthy women and "right" genetic decisions => choose embryos w/o genetic disorders but also enhance genetics + view that genetic testing of fetuses is responsible motherhood Esp since lack of universal health care makes it seem like punished for wrong genetic choices Looks like putting burden on wealthier or white women to not have kids who will be burden on state (other type of state enforcement + divide women from each other) But also issues w reproductive tourism Role of privilege often obscured by liberal rhetoric of reproductive choice

Adoptive Couple v Baby Girl (Baby Veronica Case):

SC couple want to adopt baby whose father, Brown, was Cherokee but mother Latina. Brown had rocky relationship w mother and in army = signed release of custody w/o lawyer thinking that it just meant mother will take care of baby. Brown said not notified properly under ICWA = state courts rule in his favor so get custody. SCOTUS 5-4 decision. Alito says Brown is non-custodial father so no rights under ICWA so can't object (since no Indian family destroyed). Sotomayor dissent says that non-custodial father-child relationship is family for ICWA purposes so needed more efforts to prevent breakup of relationship + majority ignoring purpose of ICWA. Q here is whether there is Indian family and whether fact that Brown never had custody of baby meant he had no rights to child. Courts also made big deal out of small % of cherokee blood that Brown had = said baby wasn't really even Cherokee Media portrays it as Brown taking advantage of ICWA to "rip baby away from only parents she's known" even though he's never seen baby before (since he signed away custody before)

US v One Package of Japanese Pessaries:

Stone licensed gynecologist who prescribed pessaries to women when undesirable pregnancy. D sent her pessaries to see if useful contraceptives. 1930 Tariff Act says can't import anything preventing conception or for unlawful abortion (lawful abortions to save life allowed) but NY codes say drs can get/buy/distribute contraceptives. Bours said could mail re: lawful abortion (life-saving) and Youngs Rubber said can't forbid legitimate use of contraceptives just bc possible illegitimate/immoral use. Read NY bill to only prohibit unlawful uses since no one would say using abortion in certain circs to save life is unlawful/immoral. Unreasonable to prevent use of contraceptives to prevent pregnancies that would endanger lives since then would abort later anyways. Cases rooted in fear of obscenity since cheap and accessible even to lower-class and "undesirable" immigrants => link contraceptives to obscenity Sanger birth control clinics wanted to focus on children conceived in love and born from conscious decision + when render possible heritage of health (deradicalization of contraception as family planning)

In re Baby M:

Surrogacy contract where Whitehead agreed to be artificially inseminated by Stern since Stern's wife couldn't have kids due to MS = bear child then surrender upon birth to father and surrogate mother. Contract gaver wife sole custody of child upon Stern's death. Whitehead gave birth and Sterns visited child but Whitehead doesn't want to surrender child but ultimately does. Whitehead upset and says just wants baby for one week or else will kill self but then refuses to give baby back = Sterns file for enforcement of contract but Whitehead flees => police find her and forcibly take child from her and give back to Sterns. K invalid for public policy reasons + NJ says termination of parental rights only when voluntary surrender or abandonment/unfitness so can't enforce K to terminate these rights. No EPC problem (argument that allow sperm donor when husband infertile) bc diff in time involved and other reasons. W/o K, just custody battle so look at best interests of child and give custody to Sterns based on testimony re work, personality, parenting abilities, and Whitehead's inability to properly explain to baby how she was born and refusal to accept counseling/support to help her do so (v Stern's willingness to learn and listen and strong bond w baby). But remand to determine visitation issues. K structured so it doesn't look like selling a child (payment for services not surrender, adoption by biological parent and only father on K, etc) but payment occurs only when surrender child (no payment if child dies and less if stillborn) => everyone knew payment was for adoption "Baby bartering" bad bc child sold w/o regard of whether buyers will be good parents and natural mother doesn't get counseling/assistance, often ignore interests of child/natural mother Natural mother commits to K before know strength of bond with child = never makes voluntary informed decision Beyond human capacities to suggest that mother should have parted from newly born baby w/o struggle (other than survival, what stronger force than maternal love/bond) This is the purchase of a woman's procreative capacity (sale of body and child) Taking advantage of need for money (like taking advantage of unwanted pregnancy in abortion even tho that circumstance involuntary) so can lead to abuse of poor by rich Singles mothers, abortion, contraceptives leads to deficit of adoptable babies so leads to surrogacy There are some things in civilized societies that money cannot buy ex labor, love, life (ex can't pay ppl below min wage, can't pay women less, or use child labor) Children should remain w and be brought up by natural parents to extent possible => rights of natural parents to child are equal so here can't privilege right of father over natural mother Const protects right to procreate or not whether thru sex or artificial insemination + rights to custody/care/companionship of child separate and have diff considerations so wife can't say right to procreate denied by taking child away from her (since then would say Whitehead's right to procreate doesn't give her right to custody of child) Best interests test shouldn't be used to create new intelligentsia = education levels of potential parents can be legit factor but can't be determinative (best interests test not about embodying idealized lifestyle)

Whole Women's health v Hellerstedt:

TX bill admitting-privileges requirement supposedly to manage med emergencies + surgical center requirement. After admitting priv requirement, licensed abortion centers dropped by half= if allow surgical center requirement, would drop to 7 and only in major cities so 1,200 women per month vying for appts at 7 clinics. Also 2 mil women of repro age would live more than 50 mi from abortion provider. Law is undue burden. Abortion much safer than other common med procedure regulated w less intense scrutiny (like colonoscopy or childbirth) + no ev that risks significantly lower when done at surgical center. Also many amb surgical centers don't even meet code bc they were grandfathered in. State had legit interest in making sure abortion like ohe med procedures performed in way that ensure max safety for patient BUT can't use statute that creates undue burden or is unnecessary in order to secure interest (narrowly tailored). need to look at burdens and benefits of law not just purpose + level of scrutiny wrong TX argument that requirements only burden fraction of women of reproductive age irrelevant bc need to look at burden re: women that provision actually restricts. Dissent: unsure if clinics closing bc of law; may be coincidental. Also cases like Philly Gosnell case about abortion provider that ran super unsafe clinic => show TX needs to regulate

Lawrence v TX:

TX law preventing gay sex where mouth touch genitals or anal penetration. Police sent to P's house and find P having gay sex with black man so arrest him for deviant sexual intercourse. No longstanding "natural" history of criminalizing gay sex (used to criminalize certain types of sex equally for gays and straights). Morality of gay sex doesn't address whether state has right to use its power to enforce said morality on all of society. Privacy argument since criminalizing private, consensual, non-harmful conduct. Due Process protects certain types of decisions made with home. Law's consequence is discriminating against gay couple's rights to engage in relationships so Equal Protection violation. P wins. Liberty means being free from unwarranted gov intrusion into dwelling/private place and freedom of autonomy re: certain intimate conduct like sex => adults have right to enter into relationships (which sex is part of) in own house States should be cautious when defining relationship of setting it boundaries absent injury to person or abuse of institution protected by law Scalia (dissent): overturns state ability to legislate based on morals (ex. bigamy or incest) and legit state interest in preventing immoral/unacceptable sex like bestiality. No Equal Protection issue since applies to everyone (no one can have gay sex) and same divisions as prohibiting gay marriage. Even is discrimination, still rational basis of morality. Domesticating (gay) sex: marriage-like and in the home Had to spin facts to make relationship look marriage-like when actually P's boyfriend called police on him because P had side-guy Limited approach: didn't say LGBTQ is protected class If not marital sex, then criminal; if not criminal, then marital

Roe v Wade:

TX statute crim abortion when not to save mother's life according to medical advice. P unmarried and pregnant and couldn't get abortion in TX or travel to other juris to get one. Statutes like TX that crim abortions (w life exception) w/o regard to pregnancy stage and recognition of other interests involved violates 14th Amend DP. Historic analysis Crim, punished abortions in Persian empire bc violates father's rights to offspring Lax abortion rules in rome/greece but hippocratic oath says no abortion (but this is minority attitude then and not accepted by all physicians) C/L said fine if pre-quickening = only in 19th c abortion generally crim Shows not against some natural law and C/L didn't think fetus was alive until after quickening Recently more liberal since AMA (but AMA OG anti-abortion and going after midwives) and other orgs back this stance=> look at best interest of patient, clinical judgment, informed consent State interests State interests in ensuring med procedures safe but abortions so low-risk that doesn't justify criminalizing Victorians justified crim bc discouraging illicit sexual activity but SCOTUS says no one is arguing that Protecting prenatal life 14th Amend privacy rights If don't cover abortion, health/psych/emotional harm of forcing woman to carry to term = hurts both mother and unwanted child No absolute right to abortion (can't just terminate whenever she wants) 14th Amend "person" doesn't include unborn but women can't be isolated from fetus so unlike prev marriage/intimacy decisions Court not competent to determine when life begins Trimester framework Until end of 1st trimester: abortion left to doctor's judgment (no compelling state interests) [Subsequent decisions interp this as woman's right to decide] After 1st trimester, can regulate in reasonable ways for maternal health After viability, states can regulate (compelling interest in potentiality of human life) unless medical judgment that necessary for mother's life Rehnquist (dissent): no privacy interest since abortion is about med procedure by licensed physician. Even liberty in transactions is limited. Should use RB. R: interesting that keep referring to pregnant women as mothers

Erickson v Bartell Drugs:

Title 7 says can't discriminate at work based on sex and Pregnancy Discrim Act says can't discrim based on pregnancy/childbearing/related conditions. Ds comprehensive prescription scheme exempted contraceptives. Discrim since doesn't exclude similar male conditions and not neutral exclusion. Gilbert: disability policy excluding pregnancy-related coverage not sex discrim since pregnancy doesn't impact all women and covered same disabilities for men and women => PDA language in response to this. Women may have different health-related needs title 7 says need to make sure prescription plan exceptions not discrim D says women's ability to control fertility diff from other illness unintended pregnancy huge health/econ/social consequences to women/kids/society Controlling costs isn't defense to discrimination Doesn't exclude all family planning (neutral exclusion) since covers prenatal vitamins and viagra Pregnancy is a "natural state" but not all women want it at all times

Nguyen v INS:

USC 1409 deals w citizenship of child born to unmarried parents differently depending on whether citizen parent is mother or father. P born in Vietnam to Vietnamese mom and American dad. P in deportation proceedings = appeals to BIA pending paternity test but appeal dismissed for not following 1409. If mother is citizen, child citizen if mother had citizenship at time of birth and had been in US continuously for 1 yr at some point. If father, must show blood relationship by clear/convincing ev, father US citizen at time of birth and agreed in writing to provide financial support until age 18, and while person under age 18 father legitimates them/establishes paternity in writing or court. P loses. EPC for gender classification = imp gov objectives and means substantially related to goals. gov interest in ensuring biological parent-child relationship = w/ mother can easily tell from birth certificate or witnesses to birth but harder w father (just presence at birth not 100% proof of paternity) P says DNA testing should be sufficient but Congress may have been worried about expense/accuracy of testing in some parts of world Gender neutral terms can mask discrim but gender specific terms can mark permissible distinction => here this distinction is inherent biological differences in parents. 2nd gov objective is chance for parent and child to develop real everyday relationship, not just formal legal one = relationship btw parent, child, and US. For mothers, opportunity for meaningful relationship starts at event of birth but not always for father bc 9 mo window btw conception and birth means father may not be known or father may not know child conceived (esp if dad in US armed forces and today ease of travel means more US ppl abroad) = possibly no point of contact btw father and child so no opp for relationship to develop want meaningful relationship btw parent and child and to commit country to embracing child (concerned w child's ties and allegiances) No gender stereotype here to say mother's knowledge of child and parenthood established at birth while father's not tho P say gov is stereotyping who's likelier to dev relationship w child. Failure to recognize most basic biological differences like fact that mother must be present at birth makes EPC superficial.

Buck v Bell:

VA law allowing for sterilization of "feeble minded" people. P admitted to Colony for Feeble Minded. P's mother and child also supposedly "feeble minded." P sterilized. No Equal Protection issue since law applies to everyone in institutions equally. No Due Process issue since procedural protections (petition, trial, right to be heard, counsel, appeal). Also substantive state interest in reducing reliance on welfare (proactive approach rather than waiting for kids to grow up and commit crimes, use welfare). P loses. State can use police power to trump indiv rights to protect morals/health/safety like making people get vaccinated Even non-feeble minded people may have to sacrifice for the greater good Actually sham trial => test case to get constitutional ruling on sterilization laws so states can pass more no proof anyone in P's family cognitively below normal but P and mother both poor and had kids out of wedlock P was sent to Colony by foster parents whose son raped and impregnated her P was poor white woman P's lawyers affiliated with D's institution and most testimony by Laughlin (notorious eugenicist) NEVER OVERTURNED

Zablocki v Redhail:

WI law requiring court permission to marry if person non-custodial parent of child; must show proof of compliance with child support and that kid not likely to become public charge. P indigent and couldn't make child support payments for child so kid on welfare since birth. P's application to marry refused. WI law effectively bars class of people from ever marrying so interfere with freedom of choice. Even if legit state interest in making ppl pay child support and making sure they can support existing children before having new ones, law not narrowly tailored enough; can achieve goals in other ways and no actual counseling to make people pay child support/automatic permission to marry once finish counseling. Law violates Equal Protection. P wins. Marriage is fundamental to everyone and part of privacy rights implicit in Due Process If right to procreate, right to enter into only relationship state says is legal way to do so (kids won't be illegitimate) Stewart (concur): No constitutional rights to marry so privilege defined by states. States can't interfere with decision to marry but can categorically bar some kinds of marriages (ex incest). Legit paternalistic interest in making people pay child support but law not narrowly tailored enough. Stevens (concur): Equal protection issue because discriminates against poor people as a class. Ignores situations where dad gets custody, women work, men are unemployed. Rehnquist (dissent): Marriage not fundamental right and law protects legit interest even if imperfect.

Akron v Akron Center for Reproductive Health:

[OVERRULED BY CASEY] Akron law says all abortions post 1st trimester performed at hospital + notification of parents for minors + physician needs to make certain statements for "truly informed consent" + 24 hr waiting period + fetal remains disposed of in humane and sanitary manner or else misdemeanor. At issue are hospitalization, disclosure, and technique (since other requirements struck down in prev lawsuit). Most of info meant to persuade women not to have abortion = invades on discretion of woman's physician (must outline all risks even if think they're non-existent). Can require disclosure of risks of specific procedures or dangers or pregnancy. Personal liberty and fundamental right to choose abortion + need to give physician room he needs to make best medical judgment Regulation ok so long as no significant impact on exercise of right and can't interfere w patient-physician consultation If women choose to proceed despite consultation or physician advice to delay, must respect her choice Can't depart from accepted medical practice (can't ban a procedure to increase costs when no health benefits) State may not adopt one theory of life when justifying abortion reg (ex can't say life begins at conception) O'Connor (dissent): Should apply undue burden test, not SS since privacy right not absolute and social issues should be resolved by leg. Changing tech means no more brightline Roe trimester rules and states not competent or Const required to keep up. State interest in prenatal life and maternal health present throughout all pregnancy.

Thornburgh v Am College of OBGYN:

[OVERRULED BY CASEY] PA Abortion Control Act requires voluntary and informed consent = drs must give 7 different kinds of information 24 hours before consent given (including risks of abortion and services available to help w prenatal/maternal/childbirth care, alternatives). Woman must report personal info like age and sec, # prev pregnancies = all public records. Post-viability = must treat fetus as if unborn child intending to be born = must try best to make sure child comes out alive unless danger to woman. Law unconst since amount of reported info is identifying = open up to harassment and public exposure so pose unacceptable danger to right to terminate pregnancy. Post-viability requirement unconst since fail to make maternal health paramount consideration. No emergency exception to requirement of 2nd physician to be present = wait could endanger life. States can't under guise of protecting maternal health or potential life intimidate women into continuing pregnancy Ending pregnancy is personal and intensely private right (w/ physician) = few decisions more personal/intimate/basic to indiv dignity/autonomy Making choice freely is fundamental right Burger (dissent): protecting potential life is compelling state interest at viability = statute says viable fetus to be cared for, not destroyed. White (dissent): No historical tradition so right to abortion not fundamental. Court imposing own extra-const values when abortion issue should be resolved by the people and people don't support abortion. O'Connor (dissent): Court seems to say abortion reg invalid if "pose unacceptable danger of exercise of right"

Griswold v CT:

[post Poe reopen PP clinics and hope for crim prosecution so can mount Const challenge]. Ps executive and medical directors of Planned Parenthood = gave info to married couples re contraceptives = fined. CT laws apply to intimate relations btw husband, wife and role of physician in this Implicit 1st amend rights like right to choose private school or study subject of choice = penumbra of privacy in BOR State cannot control spectrum of knowledge or freedom to associate/privacy in associations Relationships in zone of privacy and law unreasonably infringes on personal freedoms (ex allowing police to search sacrosanct marital bedroom for signs of contraceptives) Privacy right = marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred association that promotes a way of life but still association protected by 1st Amend Goldberg: privacy in marriage is fundamental right White: state says trying to disincentivize illicit/promiscuous relationships but law unrelated Black (dissent): No const right to privacy and this is separation of powers issue