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Adolescence, Privacy, and the LawA Developmental Science Perspective$

Roger J.R. Levesque

Print publication date: 2016

Print ISBN-13: 9780190460792

Published to Oxford Scholarship Online: September 2016

DOI: 10.1093/acprof:oso/9780190460792.001.0001

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Decisional Privacy

Decisional Privacy

Chapter:
(p.16) 2 Decisional Privacy
Source:
Adolescence, Privacy, and the Law
Author(s):

Roger J. R. Levesque

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190460792.003.0002

Abstract and Keywords

This chapter discusses decisional privacy rights—rights supporting our need to act autonomously and make life-defining choices. However flawed in other respects, some of the legal developments in this area actually reveal the most fidelity to constitutional principles in their approach to adolescents’ rights. But, rights claims in the context of the parent-controlled family reveal that the legal system fails to account for the parent–child relationship in a meaningful manner. The legal system increasingly defines decisional privacy rights as liberties, and adolescents’ liberties have a long tradition of being controlled by their parents. This development creates important obstacles to addressing adolescents’ needs for decisional privacy.

Keywords:   Decision Privacy, Law, Adolescence, Liberties, Decision making

Decisional privacy principally centers on choice, an individual’s ability to make significant decisions without interference. However, this strand of privacy law focuses on much more than individuals’ choices. It involves self-defining choices made without interference from the government. This area of law seeks to remove direct governmental involvement in decisions that would profoundly influence individuals’ development. Thus, decisional privacy concerns the freedom to make important decisions that go to the core of who we are, how we define ourselves, and how we behave.

This strand of privacy law is undoubtedly the best known, but it also is likely the most misunderstood. It is well known because of the heated controversies it attracts. This strand of privacy law addresses some of the most socially divisive issues of our time, such as whether individuals have a right to abort fetuses, a right to engage in sexual behavior, and a right to control how and when to die. Such heated topics likely would produce controversies regardless of how they were addressed. But, one of the emerging ironies of this area of privacy law is that popular controversies have not kept pace with legal controversies. This strand of privacy law is actually addressed less and less as involving a right to privacy.

As originally conceived, decisional privacy was said to emanate from the Constitution, mainly because it had no explicit Constitutional status. As a result, legal scholars and jurists focused on various potential sources for the right, with the effect of creating multiple jurisprudential rationales. Unsurprisingly, those sources and supporting rationales garnered uneven support from Supreme Court justices. As the Court grappled with this area of law, it settled on ways to approach it. The Court did so as social scientists and commentators focused on some of its sources and rationales, such as the ability to make decisions. But, as researchers and commentators busily addressed various aspects of the decisional right to privacy, the Court switched the way it framed what the right addressed and how it gained protection.

(p.17) Undoubtedly, one of the most dramatic developments in privacy law has been the recent removal of a large swath of personal decisions. The legal system no longer approaches many controversial issues—like the right to control abortion decisions and refuse life-saving treatment—as matters of privacy. Instead, the Court now approaches “decisional privacy” as a matter of liberty, particularly individual liberty against the state. This development creates important complexities and renders obsolete much of the research addressing this area of law. Even more, it questions how (and whether) previously recognized rights remain protected. This unsettling is significant given that, even though the legal approach may change, the controversial issues that they addressed remain and require responses.

Misunderstandings mean that we must begin with a close look at jurisprudential developments. These developments are important for two reasons. First, they outline what preoccupies the legal system as it explores the rationales supporting our individual liberty to make important decisions about our lives, sense of self, and well-being. Individual liberty protects how we define who we are and determine our life course—what society deems essential to the orderly pursuit of happiness. Second, a close look at these developments allows us to consider how they relate to adolescents. The analysis reveals that, however flawed in other respects, some of the legal developments relating to adolescents’ control over decisions that can profoundly affect their futures actually reveal the most fidelity to constitutional principles. Ironically, that does not mean that adolescents themselves control those decisions, the apparent hallmark of popular notions of “decisional privacy.” Rather, it means that this area of law helps to frame the general nature of adolescents’ rights, including what is popularly known as their privacy rights, in ways that remain remarkably faithful to the constitutional principles that apply to us all.

Jurisprudential and Legislative Developments Securing Decisional Privacy as a Liberty

Decisional privacy involves a strand of privacy law cases that appeared during the mid-to-late 1900s. Those cases themselves were preceded by important cases that shaped their development and followed by cases that articulated more clearly the roots of the right. The surrounding cases, it turns out, not only place the right to decisional privacy in perspective but also point to where it appears to be heading, which is away from what has become popularly known as “privacy.” Given how the Court can be shaped by shifting social and political impulses, these developments and retrenchments are not surprising. What is surprising is that the developments tend to be ignored by those who seek to inform and influence what has become popularly known as the right to decisional privacy. Notably, the Supreme Court now views decisional privacy as decisional liberty, a distinction that has particular (p.18) significance for adolescents. This section examines the roots and nature of that liberty.

Substantive Due Process Rights

Decisional privacy rights emerged from a venerable line of cases that eventually articulated what became known as due process rights. Due process rights derive from the Constitution’s Fifth and Fourteenth Amendments, which respectively prohibit the federal and state governments from depriving any person of “life, liberty, or property, without due process of law.” To protect certain rights from governmental interference under the authority of the Due Process Clause, the Court has interpreted the language as supporting two types of due process rights: procedural and substantive.

Distinguishing between procedural and substantive due process rights can be a challenge in practice, but each type theoretically has specific characteristics. Procedural due process rights protect individuals from the government’s coercive power by ensuring fair and impartial adjudication processes under valid laws. The most recognizable examples come from criminal justice contexts, such as the right to sufficient notice of charges, the right to an impartial arbiter, the right to give testimony on one’s behalf, and the right to not incriminate oneself. Substantive due process rights focus on the validity of the laws themselves rather than the processes supporting them. These rights protect individuals against majoritarian policy enactments that exceed the limits of governmental authority. These protections mean that courts may find a majority’s enactment of a law invalid, resulting in an unenforceable mandate regardless of the fairness of the processes of enactment and enforcement. Violations of substantive due process, then, are governmental actions that go beyond the reach of permissible governmental interference. In a real sense, recognized substantive due process rights constitute the nature of the Due Process Clause’s “life, liberty or property” worth protecting from governmental intrusions. The right to decisional privacy exemplifies what has become known as substantive due process rights, as it became subsumed under the broad concept of liberty.

Meyer v. Nebraska (1923) initiated the line of substantive due process rights that remains valid today. In Meyer, the state of Nebraska prohibited teaching in any language other than English prior to the ninth grade. A teacher, Mr. Meyer, had been convicted under the statute for teaching Biblical stories in German to students at a Lutheran parochial school. By banning modern foreign languages (Latin, Greek, and Hebrew were permitted), the legislation had sought to promote good citizenship by preventing children from learning “foreign tongues and ideals” before they had learned the English language and American ideals (Id., p. 401). The state had determined “that the foreign born population is very large, that certain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from (p.19) becoming citizens of the most useful type and the public safety is imperiled” (Id., p. 401). The Nebraska Supreme Court had found persuasive the state’s authority to inculcate youth in the ideas and sentiments serving the country’s best interests. Mr. Meyer appealed to the Supreme Court, which overturned his conviction and struck down the language prohibition.

In overturning the conviction, the Court did much more than rule for Mr. Meyer. The Court laid the foundation for the substantive right to liberty that would become known as decisional privacy. The Meyer Court found that the legislation had gone too far in trying to indoctrinate children. The Court drew a disparaging analogy to the practice in ancient Sparta of taking male children to barracks at age seven for state indoctrination. The Court appreciated the state’s desire to foster a homogeneous people with American ideals grounding their civic life, but it found that the state had gone too far in prohibiting instruction in modern languages. The Court deemed the challenged Nebraska statute arbitrary and without reasonable relationship to any end within the state’s competency. In reaching that conclusion, the Court explained what the Fourteenth Amendment’s liberty embraced:

The right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (Id., p. 399)

This strikingly broad language described a liberty that stood against the state’s effort to indoctrinate children for the good of society. That language was one of the very first instances in which the Court found that people had liberty rights not specifically enumerated in the Constitution. Despite involving a right not mentioned in the Constitution, the case had near unanimous agreement.

Only one lone dissent, from Justice Holmes, objected to the argument that the law requiring only English at school was inherently arbitrary and unreasonable in the way it sought to have youth learn one common language. Given that the law could be reasonable, argued Justice Holmes, it could not be an undue restriction on the teacher’s liberty. This lone dissent nicely underscores two points, which often go ignored because the dissent was provided in a companion case to Meyer (Bartels v. Iowa, 1923). First, it highlights no disagreement about framing the statute as raising a liberty protected by the Fourteenth Amendment. Second, it reveals the nature of the protection that liberty might have: if the restriction on it were reasonable, the restriction would be upheld. The majority apparently did not disagree with that characterization of liberty and its protection, which likely explains why the Court went out of its way to enumerate a list of acceptable liberties and expound on the nature of civil society’s commitment to liberty. What emerges as very telling is the Court’s actually giving liberty modest protection. At (p.20) this point in its development, the liberty at stake gains protection against irrational and arbitrary state actions. This left to be determined, for example, how the liberty would fare against a more compelling state interest to limit it. Significantly, the Court had conceived the right to liberty as a fundamental one. But, what that would mean for the protection granted to it would vacillate until the Court developed more systematic ways to distinguish among rights and their relative protection.

In providing that foundation for its ruling, the Meyer Court availed itself of the opportunity to support not only the liberties of teachers but also those of parents to raise their children as they deem fit. Parents actually were not party to the case, nor were parental rights being challenged. Yet, the case has become most associated with the formal recognition of parental rights against the state as well as, eventually, against their children. Following Meyer’s vision of the state and families in them, future cases would view Meyer as laying the jurisprudential foundation for granting parents decisional authority over their children. Meyer envisioned parental liberties—what would become understood as their decisional liberties to raise their children—as necessary to ensure children’s effective development in a free society and a way to support everyone’s individual freedoms.

The first case to follow Meyer and benefit from it was Pierce v. Society of Sisters (1925). Like Meyer, Pierce overturned state legislation intruding on the rights of parents. In this instance, the offending legislation primarily had aimed to eliminate parochial schools by requiring public school attendance for children between 8 and 16 years of age. Oregon had enacted the statute as a way to enlist schools in promoting a common American culture. That effort began after World War I, when states attempted to counter concerns about the influence of immigrants and “foreign” values. Private schools viewed these efforts as attacks on their right to enroll students and do business.

The Society of Sisters alleged that the law requiring public schooling conflicted with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, and the right of schools and teachers to engage in a useful business or profession. The Court agreed as it held that compulsory public education denied parents the right to direct their children’s upbringing and education. Drawing on Meyer, the Court again rejected the state’s power to standardize its children by forcing them to accept instruction only from public schools. It found that power inimical to the fundamental theory of liberty on which the government rested. The Court reiterated, “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” (Pierce, p. 535). By its very nature, the traditional American understanding of the term “liberty” prevented the government from forcing students to accept instruction only from public schools. The Court reasoned that responsibility for instruction belonged to the child’s parents or guardians, and that the Fourteenth (p.21) Amendment protected their liberty to make such a choice. Without finding an appropriate justification for intruding on their liberty, the Court again ruled that “rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State” (Id., p. 535). Notably, although the case raised the child’s right to influence parental decisions, the Court ignored the claim. The Court decided the case on the liberty of parents to direct their children’s upbringing, to control their children’s liberties.

Meyer and Pierce gain significance for much more than what they have been characterized as announcing: the broad right of parents to raise their children as they deem fit. Although correct and important, this characterization fails to acknowledge the essence of these cases. Reference to the cases as establishing rights to rear and educate one’s children gives the impression that the cases are primarily concerned with human (and, in particular, family) relationships. Rather, the principles supporting the cases center on the freedom of mind and character, and the place of the state in ensuring that freedom. In Pierce, the Court declared, “The fundamental theory of liberty … excludes any general power of the State to standardize its children… . The child is not the mere creature of the State… .” (p. 535). The cases are about the state’s obligation to ensure basic liberties. The cases are notable for the Court’s taking the opportunity to ground parental guidance of education in a broader right, the right to liberty. Pierce and Meyer properly are seen as the progenitors of the modern substantive due process that protects individual rights to make important decisions, such as those involving marriage, procreation, contraception, abortion, and parenting.

The profound attachment to this form of liberty was reflected in the great extent to which it gained protection. Both Meyer and Pierce simply had found that the government’s abridgement of the liberties at stake did not relate reasonably to a power that the state had. In that case, the power at hand was the power to standardize its children, a power the Court rejected. The power to standardize children was more than not compelling; it was inimical to democratic ideals. Still, in both cases, the Court had reasoned that the government retained the power to enact reasonable regulations. In Meyer (p. 401), for example, the Court noted, “That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear …” It continued the same sentence, however, by also stating the limit on the state’s power: “but the individual has certain fundamental rights which must be respected” (Id.). Meyer and Pierce left unresolved how the Court would address limitations on the liberties against a legitimate state power, but they left no doubt that the liberty deserved protection.

The initial answer to the question raised by Meyer and Pierce came in Prince v. Massachusetts (1944). Prince, which also eventually would be viewed as a leading parental rights case, addressed the liberty to parent and the limits placed on it. In that case, the state had convicted Sarah Prince, a Jehovah’s Witness, for violating child labor laws. Prince was the guardian of (p.22) a nine-year-old girl whom she had brought into a downtown area to preach on the streets. The preaching involved distributing literature in exchange for voluntary contributions. The child labor laws that Prince was charged with violating stipulated that no boys under 12 and no girls under 18 were permitted to sell literature or other goods on public thoroughfares. Prince argued that the state’s child labor laws violated her Fourteenth Amendment rights to exercise her religion and her equal protection rights.

The Court rejected Prince’s claim, and took the opportunity to clarify the extent of the liberty to parent. The Court recognized that parents had a fundamental right, embodied in the Due Process Clause of the Fourteenth Amendment, in the form of a liberty interest in the custody and management of their children, coupled with a corresponding duty to provide care. Despite that liberty, the Court asserted that the government retains the broad authority to regulate the actions and treatment of children. Parental authority is not absolute and can be permissibly restricted if doing so serves the interests of a child’s welfare. The Court reasoned that neither the rights of religion nor the rights of parenthood were beyond limitation. The Court did so in what would become some of the most recognized language in family and child welfare law:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. (Id., p. 170)

The Court may have been engaging in hyperbole when it apparently set the standard to parents’ making martyrs of their children before the state will interfere in parents’ liberty to raise their children as they deem fit. But, the Court would continue to evince a strong attachment to that liberty (see Levesque, 2008).

Prince adds more to Meyer and Pierce than the notion that parental liberties have their limits. Prince adds to the doctrine supporting substantive rights by highlighting the nature of their protection. The legal system protects substantive due process rights by creating a zone that the government may not enter. Rather than ensuring substantive due process rights by intruding on families, for example, the legal system ensures these rights by removing the state from family life. Prince also nicely demonstrates the limits of the zone of family privacy; it permits states to intrude coercively only at extremes. The law in this area would develop so as either to support parents or to intervene only when they fail, and its rationale for doing so would be to reduce future burdens on society and ensure that children develop into effective citizens. Together, these cases do more than confirm that the government gives individuals the liberty to make decisions outside of direct legal intervention. These early cases confirm that all individuals fall under the state’s power, and that the state sets the broad parameters of (p.23) liberties. They also confirm that liberty is the freedom that exists beyond governmental influence, in the zones where the government may not enter.

Decisional Privacy Rights as Individual Liberties

Decisional privacy rights have been deemed protected by the Constitution although they are not even mentioned in it. Therein lies the importance of substantive due process, which the Court would use to recognize privacy rights as we know them. That recognition would emerge in a series of remarkable cases that focused on intimate matters, notably sexual relationships and the decisions supporting them. As it would develop, the right to privacy would reach its limits. In its stead, the Court would focus on the protection of liberties. Understanding this switch—from right to liberty—is of significance, because it has important implications for how the Court will recognize and respect what is popularly understood as decisional privacy, including adolescents’ decisional privacy.

Recognizing the Right to Privacy

The Court first announced the right to privacy in 1965, in Griswold v. Connecticut. Griswold involved a challenge to a Connecticut law that criminalized the encouragement or use of birth control. The 1879 law had provided that “any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days” (Id., p. 480). The law further had provided that “any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender” (Id., p. 480). The challenge to the law began when Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, doctor and professor at Yale Medical School, were arrested and found guilty as accessories to providing illegal contraception. They were fined $100 each, and both appealed to the Supreme Court.

The Supreme Court ruled that the law violated the “right to marital privacy” and could not be enforced against married people (Griswold, p. 486). Using Meyer and Pierce as stepping stones, the Court envisioned a zone of private behavior that the state could not enter. Yet, the rights’ source in the Constitution was unclear. Justice Douglas contended that the Bill of Rights’ specific guarantees have “penumbras,” created by “emanations from these guarantees that help give them life and substance” (Id., p. 484). In other words, the Constitution contained a general “right to privacy” that could not be unduly infringed in the “spirit” of the First Amendment (free speech), Third Amendment (prohibition on the forced quartering of troops), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (unenumerated (p.24) rights), as applied against the states by the Fourteenth Amendment. In addition, the Court ruled the right to privacy “fundamental” when it concerns the actions of married couples, because it “is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of our civil and political institutions” (Id., p. 493). The Court reasoned that, because a married couple’s use of contraception constitutes a “fundamental” right, Connecticut had to demonstrate that its law was “compelling” and “absolutely necessary” to overcome that right (i.e., what had become known as the “strict scrutiny test” to determine the constitutionality of state limitations on fundamental rights). Because Connecticut had failed to demonstrate that the law furthered a compelling state interest, the Court struck down the law as illegitimate.

Griswold stands for the recognition of the highly protected right to privacy even though the Constitution does not explicitly articulate the right. Like other efforts to create Constitutional doctrine from unenumerated rights, it attracted criticism from other justices. Several accepted that the right to privacy existed, but they disagreed that the right emanated from the penumbra of multiple rights found in the Constitution. A concurrence of three justices suggested that the right to privacy found support in the Ninth Amendment, which reserved rights not specifically enumerated to the people. Yet another concurrence suggested that the right to use contraceptives was found in the Due Process Clause of the Fourteenth Amendment because the basic value underlying it (marital privacy) was “implicit in the concept of ordered liberty” (p. 500). That concurrence rejected the idea that the right must emanate from another, explicit constitutional guarantee, opining instead that “[t]‌he Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom” (Id., p. 500).

Importantly, two justices dissented, even though both objected to the law that criminalized the encouragement or use of birth control. They dissented to highlight that the Constitution did not give the Court the power to overrule the law, even though the law may be inappropriate. More importantly, they explicitly objected to finding a right to privacy in the Constitution. Of significance was the dissent’s rejection of the due process argument. That rejection was based on the grounds that the Due Process Clause did not give the Court the power to invalidate all state laws that it considers arbitrary, capricious, unreasonable, or oppressive, or on the Court’s belief that a particular state law under scrutiny has no “rational or justifying” purpose, or is offensive to a “sense of fairness and justice” (Griswold, p. 511). Rather, the power to make such decisions rested with a legislative body. Together, these important dissenting views highlight the contention that, unless the Constitution directly instructs the Court to do so, the Court cannot hold unconstitutional laws that they believe unwise or dangerous by exercising a supervisory veto over the wisdom and value of legislative policies. They also pointed to the hazard of substituting for the crucial language of a constitutional guarantee another word or words, such as “the right to privacy,” on the grounds that “privacy” (p.25) was a broad, abstract, and ambiguous concept that can easily be shrunken or expanded to ban too many things not within the Court’s purview.

Disagreement about the source of the right to privacy reflected unease with the argument that the right simply was a manifestation of basic liberties protected by the Due Process Clause. Attempts to identify a different source for the right to use contraceptives, other than the liberty component of the Due Process Clause, reflected the Court’s desire to avoid charges of presuming rights not specifically addressed by existing Constitutional law. Indeed, the opinion expressly anticipated and defended against such a charge as it discussed Pierce and Meyer, whose principles and helpful precedent met the continued approval of the Court. In its lead opinion, the Court wrote, “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation” (Griswold, p. 482). The concurrence elaborated in what would become the defense of substantive due process not enumerated specifically in the Constitution: Noting the risk that judges might impose their own values upon the public through the recognition of unenumerated rights, the concurrence stated that this risk could be minimized by adherence to the “teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms” (Id., p. 501). The delineation of ways to support the identification of rights when they are not specifically enumerated in the Constitution would gain traction and figure prominently in analyses that would address whether claimed rights could be recognized as worth close protection.

The Griswold Court’s equivocation about the source of the right to decisional privacy appeared to be put to rest in the next leading case in this area, Roe v. Wade (1973). In Roe, the Court affirmed and even expanded the right to privacy and located it directly in the liberty of the Due Process Clause. In that landmark case, the Court struck down Texas legislation making it a crime to “procure an abortion,” or attempt one, except for the purpose of saving the life of the mother. The lower courts had addressed a variety of claims maintaining that the Texas statutes were unconstitutionally vague and that they abridged the right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Rather than have the right found in a variety of Constitutional Amendments, the Court firmly secured the right to make personal decisions, the right to privacy, under the Due Process Clause of the Fourteenth Amendment. It did so as it famously extended the right to include a woman’s decision to have an abortion.

[The] right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, (p.26) in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. (Roe, p. 153)

The Court left no doubt that the right to privacy existed as a protected liberty.

The Court in Roe did much more than locate a right to privacy in the Fourteenth Amendment’s concept of personal liberty. It also established its limits and how to determine the validity of those limits. The Court ruled that the right must be balanced against the state’s two legitimate interests in regulating abortions: protecting the “potentiality of human life” and protecting women’s health. These interests were deemed separate and distinct. Each of the interests grows in substantiality as the woman approaches different pregnancy terms and, at a point during pregnancy, each becomes “compelling.” Arguing that these state interests in protecting the potentiality of life became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the trimester of pregnancy. During the first trimester, the mother had greater rights to privacy—here, the right to determine the pregnancy’s outcome. What is notable about this case, then, is not just that it secured a right to privacy in the liberty interests of the Due Process Clause, but also that it set its limits and placed the right in a highly protected category—a fundamental right that the government needed a compelling interest to infringe.

Locating the right to privacy in the liberty protection of the Due Process clause was a challenge. A concurring opinion highlighted the Court’s difficulty as it underscored the importance of taking a broad view of liberty. That such an opinion had to be written underscores what the lead opinion may not have been able to declare without jeopardizing its control of the case’s outcome. It reiterated that the meaning of “liberty” must be broad and cover more than those freedoms explicitly named in the Bill of Rights. Liberty included the right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear a child. Notably, the opinion mentions liberty numerous times while it mentions privacy in a footnote indicating that there is no constitutional right to privacy as such.

Two dissenting justices also highlighted the Court’s difficulties. One justice argued that nothing in the language or history of the Constitution supported the Court’s judgment. He saw the Court as fashioning and announcing a new constitutional right for pregnant mothers. He concluded that the issue of abortion should have been left with the people and the political processes that they have devised to govern their affairs. In a more detailed dissent, another justice also rejected the argument that the case involved the right to privacy. In addition, however, he took a different view of the high regard given to the liberties involved. He noted that a transaction resulting in an operation like an abortion is not “private” in the ordinary usage of that word. Nor was the type of privacy recognized by the Court (p.27) even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court had referred to as embodying a right to privacy. He did not deny, however, that the abortion decision could involve a liberty interest. He argued that, if the Court meant that the term “privacy” involved more than a form of “liberty” protected by the Fourteenth Amendment, then similar claims were upheld in earlier decisions on the basis of that liberty. In conceding that point, he agreed with the concurrence that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But, he disagreed with the protection granted that liberty. Starting with the point that liberty is not guaranteed absolutely against deprivation, he reasoned that the Court applied the wrong standard to protect it. Traditionally, social and economic legislation were protected by determining whether a challenged law had a rational relationship to a valid state objective. Rather than use that standard, the majority had relied on the more rigorous “compelling state interest” test, which had been associated with the Equal Protection Clause of the Fourteenth Amendment, rather than the Due Process Clause. The dissent, then, disagreed that the case involved the right to privacy. He would have recognized that the abortion decision involved a liberty interest, but an interest only protected against irrational state regulations.

Despite some important disagreements, Roe v. Wade settled the right to decisional privacy in the liberty component of the Due Process Clause. Later cases expanded the right to privacy that had been recognized in Roe and in Griswold before it. Although the Court had deemed the criminalization of contraceptives as a violation of marital privacy, the Court also would similarly recognize unmarried couples’ right to use contraceptives (Eisenstadt v. Baird, 1972). Leading cases in this area also would protect access to contraceptives as well as advertising them (Carey v. Population Servs. Int’l, 1977). These cases would become the center of the decisional privacy cases as they deemed the decision to use and obtain contraceptives a private matter.

In the midst of the development of the sexual privacy cases, the Court also announced that the right to privacy included personal decisions regarding cohabitation. Notably, in 1977, the Court in Moore v. City of East Cleveland (1977) concluded that a city housing ordinance that limited the occupancy of a dwelling unit to members of a single family impermissibly intruded on a grandmother’s choice to live with her grandson. The Court reasoned that the Due Process Clause forbids such intrusive regulation of the family. Although the state had argued that the parental rights cases were irrelevant, the Court reasoned that it could not avoid applying, with equal force, the parental rights cases of Meyer, Pierce, and others to this case for the simple reason that the Fourteenth Amendment’s Due Process Clause had afforded shelter to rights associated with the family. The Court focused on the family’s importance in inculcating our most cherished moral and cultural values; and it emphasized that tradition did not limit itself to the (p.28) bonds uniting the members of the nuclear family. The lead opinion ended by returning to Pierce to emphasize that, just as the state did not have the power to standardize its children through limiting sources of instruction, the Constitution prevents the government from standardizing its children—and its adults—by forcing all to live in certain narrowly defined family patterns. A concurring opinion further underscored that the government had intruded in a zone of family privacy in which it should not enter. It was not necessarily clear how these cases would involve decisional privacy, given that the results of the decisions would be public. Nor was it clear how they involved some of the private decisions that previously had been protected in the form of parental rights and family privacy, a point highlighted by the dissenting opinions in Moore. But, the Court still framed these cases as intrusions into people’s sense of privacy and ability to make their own choices on matters of deep personal significance. The disagreement that did exist centered on whether the decisions were the type worth protecting by the Due Process Clause of the Fourteenth Amendment.

Settling on Substantive Due Process Liberties Rather than on the Right to Privacy

The 1960s and 1970s may have led to the development of decisional privacy rights, but progress was short-lived. The concept of decisional privacy did not work as well when applied to other types of decisions that were also of a deeply personal nature. The Court would recognize that even paradigmatic private decisions (abortions) involved much more than private decisions. Rather than view these decisions as private, the Court would view them as liberty interests found squarely within the liberty protected by substantive due process. This doctrinal move reflected the Court’s greater ease with its ability to determine the types of liberties that the Constitution protects—a development that would have important repercussions for making decisions about personal matters that would come under the rubric of decisional privacy.

Modern thinking about personal substantive due process rights—less as privacy rights and more as liberty interests—actually started, as we will see below, in the late 1970s, but it did not become obvious until the early 1990s. In a hotly debated case involving what some construe as the right to die, the Court avoided the opportunity to frame issues under the rubric of the right to privacy. In that case, Cruzan v. Director, Missouri Department of Health (1990), the Court suggested that people may have a right under the Due Process Clause to refuse lifesaving medical treatment. The Court was able to avoid explicitly recognizing such a right because it upheld the state law in question. However, the Court described what that right might be in terms of a “liberty interest” (Id., pp. 278–279). The majority opinion, authored by the strongest dissenter in Roe v. Wade, stated, “The principle that a competent person has a constitutionally protected liberty interest in (p.29) refusing unwanted medical treatment may be inferred from our prior decisions” (Cruzan, p. 278). It further noted that “the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment” (Id., p. 281). But it also carefully noted that “[a]‌lthough many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held [and] believe this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest” (Id., p. 279, n.7). One justice wrote a separate concurrence to emphasize the importance of framing the issue in terms of a protected liberty interest. Importantly, another concurrence declared that the text of the Due Process Clause does not protect individuals against deprivations of these types of liberties; rather, it protects them against deprivations of liberty “without due process of law.” The case thus recognized a liberty interest, but did not offer it much protection.

Three justices dissented, arguing a need for enhanced protection of the liberty to be free from life-sustaining medical treatment. They argued that the right was a fundamental right to be protected regardless of the serious consequences of the decision. They reasoned that the right to be free from unwanted medical attention is a right to evaluate the potential benefit of treatment and its possible consequences according to one’s own values, and to make a personal decision whether to subject oneself to the intrusion. Giving individuals the power to make the decision meant that the only relevant state interest was the need to safeguard the accuracy of that determination, best done through an adversarial hearing. The majority was unwilling to protect the right so forcefully, as it gave the state more power to determine what was in the patient’s best interests, even if that meant not considering substituting an incompetent patient’s judgment with that of the parents or guardians.

Cruzan’s contribution to the development of privacy law doctrine is both important and limited. It is limited because it did not actually recognize a right to refuse treatment. This point is emphasized by the Court in later physician-assisted suicide cases (see, e.g., Washington v. Glucksberg, 1997) and in Cruzan itself by justices who dissented to argue that the Constitution did recognize that right. Cruzan also is limited because it involved longstanding common law principles of unwanted intrusions into the actual physical body of the person, rather than the more elusive concept of intrusions into a person’s decisions. Yet, the case gained significance for how it distinguished between pure bodily integrity issues and decisional autonomy. It also was significant for making a clear leap to focusing on liberty interests when addressing a personal substantive due process right rather than focusing on the right to privacy. Cruzan confirmed that the Court majority would address decisional issues in terms of liberty interests, rather than the right to privacy.

Two years after Cruzan, the Court would return to the abortion context and reframe it away from privacy and toward liberty interests. In the 1992 case of Planned Parenthood v. Casey, the Court’s response to the issues raised actually renders Casey more important than the more celebrated Roe v. Wade (p.30) in the development of decisional privacy, which the Court would claim as a liberty.

Casey involved challenges to a comprehensive Pennsylvania law that sought to restrict access to abortion. The challenged parts included the following provisions: (1) The informed consent rule required doctors to inform women about detriments to health in abortion procedures. (2) The spousal notice rule required women to give prior notice to their husbands. (3) The parental notification and consent rule required minors to receive consent from a parent or guardian prior to an abortion. (4) The delay rule imposed a 24-hour hold before obtaining an abortion. (5) The mandatory reporting provision imposed certain reporting mandates on facilities providing abortion services. How the Court would address these challenges would transform how privacy was protected, the nature of that protection, and the legal concept of privacy itself.

The lead opinion in Casey notably focused on liberty rather than on the right to privacy. The analysis omitted any mention of any right to privacy derived from the Constitution; it referred to privacy only in the context of a quotation or paraphrase from Roe or other previous cases. The lead opinion in Casey began by noting the U.S. government’s previous challenges to Roe v. Wade:

Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. (Casey, p. 844)

Notably, the analysis begins with a focus on liberty, and highlights challenges to the right to terminate a pregnancy that involve questions about the definition of liberty. Gone is the conceptualization of the right to abort as a manifestation of the right to privacy. The focus on liberty continued as the Court affirmed what it called Roe’s “essential holding” (Id., p. 846).

The Court asserted that the right to abortion rests on the Due Process Clause of the Fourteenth Amendment, with “liberty” being the key word in issues relating to personal decision-making, such as those involving the decision to terminate a pregnancy.

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (Casey, p. 851)

(p.31) In so ruling, the Court emphasized that the Due Process Clause contained substantive due process protections against arbitrary legislation infringing individual liberty.

Framing the decision as a liberty had several important ramifications. In doing so, the Court overturned the formula used in Roe to weigh the woman’s interest in obtaining an abortion against the state’s interest in the life of the fetus. Rather than strictly support the trimester approach, the Court focused on viability as the point at which the state interest in the life of the fetus outweighs the rights of the woman, and allowed that abortion may be banned entirely “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” (Casey, p. 879). Practically speaking, this approach would grant states more leeway in regulating the right to have an abortion, and it would kindle efforts to limit access to abortion.

The practical effects of Casey’s shift from privacy to liberty in supporting the right to make an abortion decision were compounded by another doctrinal shift. The most dramatic shift involved replacing the level of scrutiny given to laws that impinge on rights of privacy. The right of privacy recognized in Roe had been understood as a “fundamental” right, which demanded strict scrutiny. Legislation that impinged on fundamental rights of privacy would be allowed to stand only if narrowly tailored to serve a compelling state interest. When the Court adopted the liberty interest appellation to describe the right of abortion affirmed in Casey, it shifted the abortion right from a fundamental right of privacy to a liberty interest that required less deferential treatment of the individual by the state. The Court did so when it highlighted that liberties recognized by substantive due process were protected from “arbitrary legislation” rather than stating that they would be fundamental rights that gained heightened protection (Id., p. 847).

The Court’s shift had a dramatic effect when it adopted a lesser “undue burden” standard. A legal restriction posing an undue burden was defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Id., p. 877). This new approach would strike down state legislation as improperly infringing on a woman’s right to abortion only if it places an undue burden on her exercise of the right. Applying this new standard to the Pennsylvania law under challenge, the plurality struck down the spousal notice requirement, stating that it gave too much power to husbands over their wives and would worsen situations of spousal abuse. The plurality upheld the state’s 24-hour waiting period, informed consent, and parental consent requirements, holding that none constituted an undue burden. As a result, after Casey, the shift in the level of scrutiny given to laws that impinge on cases traditionally associated with the right to privacy remains uncertain.

The uncertainty was confirmed five years later when the Court returned to heightened protections. Whereas Casey and Cruzan may have suggested the demise of fundamental rights analysis, the Court in Washington v. (p.32) Glucksberg (1997) discussed and affirmed in principle the idea that some recognized liberty interests are fundamental rights deserving of strict scrutiny. The Court did so, however, in a case that did not apply the standard; it simply used the case to note that already recognized liberty interests were fundamental rights demanding strict scrutiny. Thus, the Court did not address how that principle would play out when directly challenged in specific circumstances. The case itself is known for not expanding liberties beyond what already has been recognized. In it, the Court reaffirmed both its reluctance to take an expansive view of liberty and its use of a liberty framework, rather than one centered on privacy, to address claims involving deeply personal decisions.

Glucksberg involved a ban on physician-assisted suicide embodied in Washington’s Natural Death Act of 1979. The ban was challenged by four physicians, as well as three terminally ill patients who had died by the time the case was addressed by the Court. They asserted the existence of a liberty interest protected by the Fourteenth Amendment that extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide. The lower court had agreed, as it had relied primarily on Casey and Cruzan, to find the ban unconstitutional because it placed an undue burden on the exercise of that constitutionally protected liberty interest.

Although the lower court in Glucksberg had framed the issue in terms of liberties and burdens on them, as Casey had counseled, the Supreme Court disagreed with the court’s analysis. The Supreme Court found that, because assisted suicide—what some called the right to die—was not a fundamental liberty interest, it was not highly protected under the Fourteenth Amendment. Without that heightened protection, the state could infringe more intrusively on the right. The Court rejected assisted suicide as a highly protected liberty interest because it was not “deeply rooted in the nation’s history” (Glucksberg, p. 721). The Court further noted its hesitancy to expand the concept of substantive due process liberties because doing so placed the matter outside the arena of public debate and legislative action. The Court reiterated that the Fourteenth Amendment forbids the government to infringe in fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.

Although Glucksberg would not recognize the rights of the terminally ill to assistance in dying, it still remains notable in that the issues at stake were addressed in terms of decisional liberty. The ruling opinion mentions privacy only once, and it does so to include marital privacy in a long list of recognized liberties. Glucksberg also provides the lesson that even a liberty may be infringed without much justification, and that only those liberties recognized as fundamental receive rigorous protection from state infringement.

Two important cases following Glucksberg confirmed the Court’s framing of personal decisions as matters of liberty (rather than privacy) and (p.33) highlighted the challenge of determining how much protection liberty will receive from the state’s efforts to infringe it. The first case is the highly controversial case of Lawrence v. Texas (2003). That case challenged criminal convictions under the Texas “Homosexual Conduct” law. The law criminalized sexual intimacy by same-sex couples, but not identical behavior by different-sex couples. The challenge was framed in two ways: as a violation of the Fourteenth Amendment guarantee of equal protection of the laws, and as a violation of liberty interests under the Due Process Clause of the Fourteenth Amendment to engage in consensual adult sexual intimacy in the home.

Like Casey before it, liberty begins the opening paragraph and shapes the entire opinion. Unlike Casey, the Court in Lawrence expounded an expansive view of liberty:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. (Id. at 562)

The Court ruled that the law violated the Fourteenth Amendment’s Due Process Clause because that clause protects a substantive right to personal liberty in intimate decisions. To reach that conclusion, the Court needed to overrule Bowers v. Hardwick (1986), in which the Court recently had supported a state’s ability to criminalize oral and anal sexual acts in private between consenting adults when applied to homosexuals. To do so, the Court argued that its decision in Bowers had been misguided when it ruled that the Due Process Clause does not confer a “fundamental right upon homosexuals to engage in sodomy” (Lawrence v. Texas, p. 578). The Court reasoned that the issue was not the right to engage in homosexual sodomy, but the right to privacy in the home and the right to freely engage in consensual, adult sexual activity. In the words of the Court, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring” (Id., p. 567). The Court ruled personal bonds between adults, as acted upon in the home, are a liberty protected by the Due Process Clause.

The Lawrence Court viewed Bowers as having misapprehended the claim of liberty presented to it. Rather than the right to engage in homosexual sodomy, the claim involved the liberty of individuals, not the state, to define the meaning of their relationships or to set their boundaries absent injury to a person or abuse of an institution the law protects. The liberty protected by the Constitution allows homosexual persons the right to make the choice (p.34) to engage in overt sexual expression with another person. In explaining the respect that the Constitution demands for the autonomy of the person in making these choices, the Court returned to Casey, which had been decided after Bowers. Casey (p. 851) had framed the ability to make personal decisions as a matter of liberty:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (Lawrence v. Texas, p. 574)

There was no doubt that personal decisions, previously framed as protected by the right to privacy, were now protected by the liberty found in the Fourteenth Amendment.

The Court also rejected Bowers’ method of identifying rights that deserve protection against the state. The Court argued that “history and traditions,” that is, America’s historic laws, “are the starting point but not in all cases the ending point” in identifying the existence of such rights (Lawrence, p. 572). The Court noted that, from Griswold v. Connecticut (1965) to Roe v. Wade (1973), fundamental rights have been construed broadly, so even activities largely banned by America’s laws, such as abortions, may be constitutionally protected. And even a close examination of America’s history and traditions revealed that American antisodomy laws rarely were enforced in the home and did not single out same-sex couples until the 1970s. In addition, more states were repealing their antisodomy laws; by 2003, only four states enforced sodomy laws against homosexuals. The disparate treatment of homosexual acts had led some justices, in a concurring opinion, to argue that, because it prohibited homosexual sodomy and not heterosexual sodomy, the law violated the Equal Protection Clause. The majority, however, chose not to join that extension of equal protection rights to gays. Instead, it rested solely on the concept of liberty.

Lawrence, however, did not necessarily find a fundamental right to engage in same-sex relationships. This conclusion becomes apparent when examining how the Court sought to protect the right: the majority decision did hold that the intimate, adult consensual conduct at issue was part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections. But in doing so, it used language revealing that the right was not necessarily fundamental by describing the state’s interest as illegitimate. It held: “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” (Id., p. 578). The Court typically reserves this type of language for analyses of highly protected liberty interests, those protected only when the challenged (p.35) laws have no legitimate basis. A fundamental right may still exist, but it had not been recognized, as further evidenced by the Court’s emphasizing that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

That Lawrence did not necessarily find a fundamental liberty was highlighted by the dissenting opinions. One brief dissent revived the argument that the decision to prohibit actions like these rested with legislatures, not the Court, on the grounds that the Constitution did not recognize the “liberty of the person both in its spatial and more transcendent dimensions” nor the previously claimed general right to privacy in Griswold (Lawrence v. Texas, p. 562). Another more thorough dissent argued that the Texas statute did not violate due process, because the statute did not infringe a fundamental right and was a legitimate exercise of legislative powers based on the legitimate state interest in the promotion of majoritarian sexual morality. The dissent also highlighted that the majority explicitly refused to recognize that homosexual sodomy is a “fundamental right” under the Due Process Clause, and did not subject the Texas law to the standard of review that would be appropriate (the strict scrutiny test) if homosexual sodomy were a “fundamental right.” To reach its decision, the Court simply described the prohibited conduct as “an exercise of their liberty” and applied a rational-basis review (p. 564). Under that review, the dissent found many instances in which the Court could have ruled the Texas prohibition legitimate. This type of analysis was deemed appropriate given that, when not dealing with fundamental rights, a court’s review of legislation normally results in the law’s passing constitutional muster, because the Constitution presumes that even improvident decisions eventually will be rectified by the democratic process. This line of reasoning emphasizes that the dissent would recognize the actions as an exercise in liberty, but simply not a highly protected liberty. It also indicates that the majority does not view it as highly protected either.

Lawrence v. Texas, then, was a significant case in three regards. First and most obviously, the ruling established that consensual and private homosexual sexual activity is part of a substantive right to liberty as protected by the Constitution. Second, and less obviously, Lawrence held that substantive due process rights, or activities implicitly protected by the Constitution, emerge from broad principles of liberty under which numerous and disparate activities may be protected. By using language indicating that the legislation at issue was not rational, the Court suggested that it did not necessarily view the liberty as fundamental. But by overturning the law, the Court confirmed that it would take the notion of liberty seriously and protect it, even if not fundamental liberty, against what the Court viewed as irrational restrictions. Lastly, Lawrence was overtly, and paradoxically, a severe blow to the constitutional right to privacy. The right to make decisions relating to personal autonomy is protected by liberty interests, not the right to privacy itself.

The end to the “right to privacy” as we knew it came a few years later, in Gonzales v. Carhart (2007). In that case, the Court rejected a challenge (p.36) to the Partial-Birth Abortion Ban Act of 2003, a federal prohibition on what is professionally known as the intact dilation and evacuation method of terminating a pregnancy. Notably, the Court rejected the challenge to the Act even though it did not include an exception for the preservation of maternal health—an exception that the abortion cases had previously noted as necessary to preserve women’s decisional liberties in the context of abortions. The Court held that the ban fit the state interest in preserving fetal life and did not create an undue burden. The majority opinion held that “ethical and moral concerns,” including an interest in fetal life, represented “substantial” state interests, which (assuming they do not impose an “undue” burden) could be a basis for legislation at all times during pregnancy, not only after viability (Carhart, p. 158). Regarding the challenged law, the Court found that it did not impose an undue burden on the due process right of women to obtain an abortion. In reaching that decision, the Court did not roundly affirm prior cases. Rather, it simply noted that it was reaching the decision “under precedents we here assume to be controlling,” such as the Court’s prior decisions in Roe and Casey (Carhart, p. 161). The practical effect of the decision was that, for the first time, the Court held that the government can prohibit physicians from using medical procedures that they deem necessary to benefit a patient’s health. The doctrinal effect was equally great. The decisional privacy that was protected in earlier cases gained much less protection as a liberty interest, because the Court now prohibited even the exercise of decisions that experts would deem necessary to protect the life of the one who ultimately would have made the decision.

Carhart gains significance also for what the dissenting justices found of concern. The sole dissenting opinion, joined by three justices, framed the abortion decision not as a right to privacy issue but as one involving liberty:

As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” … Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature. (Carhart, pp. 171–172)

Rather than being based in the right to privacy, the right to make personal decisions is based on decisional liberties, the ability to take charge of one’s life course and be an independent, self-sustaining, and equal citizen. Importantly, it bears emphasizing that the majority may view the notion of liberty as securing autonomy to determine one’s life course and enjoy equal citizenship stature. But, it did not recognize that the decision at stake involved the type of liberty that needed protection. Carhart provides the lesson, then, that the Court approaches decisional privacy as a matter of protecting liberty, but members of the Court differ in terms of the weight to be given that liberty.

(p.37) The Significance of Centering on Liberties

The legal developments relating to substantive due process, the right to privacy, and the protection of liberties have concerned decisions that go to the core of an individual’s sense of self. The developments have articulated rationales for supporting those decisions as well as methods for protecting them. As we have seen, although the right to privacy emerged to provide coherence to this area, it eventually became replaced by the concept of liberty. The Constitution protects the liberty to make important life decisions, but not the privacy to make them. The distinction is of significance.

The renaming and reorienting of the right of privacy into a personal liberty right makes practical sense. Even Griswold made apparent that privacy, in the sense of a zone of behavior not for public view, did not completely describe the protections that the Court wished to recognize for individuals against the state. That sense of privacy had appeared in reference to the marital bedroom and in analogy to the Fourth Amendment’s prohibition against unwarranted search and seizure. But that appeal made less sense when decisions involved matters outside the home, as revealed by the need to go outside the home to buy contraceptives; this personal decision involves others outside of the personal relationship. The decisions that would gain protection also had to do with much more than privacy, given that they involved sharing with others. The opinions that include references to “individual autonomy” and a “private sphere of individual liberty” include the right to make decisions that can profoundly influence one’s life course rather than merely a right to shield those decisions or activities from disclosure or public scrutiny.

The move toward viewing personal decisions as individual liberties also makes doctrinal sense. The early cases formulating the right to privacy evinced difficulty locating it in the Constitution, with some wishing to locate it in the liberty language of due process protections. The hesitancy to use the liberty language came from jurisprudence that had rejected a broad view of liberty, most notably in the domain of economic legislation. What emerged from doctrinal developments was a protection of liberties relating to the ability to make decisions without undue governmental interference. That development made particular sense given prior ones relating to substantive due process, particularly the liberties of parents to control their children’s upbringing. But, it also made sense because the Constitution explicitly identified liberty, not privacy. No justices dispute that the Constitution protects liberty; if privacy in the sense of decisional privacy still exists, it remains much more tenuously accepted. Given that even the cases that formulated the concept of decisional privacy now have framed decisions as a liberty, one would be hard pressed to find broad support for what had been recognized as decisional privacy.

The move toward liberty as an organizing construct may make practical and doctrinal sense, but it still creates much controversy. Prominent (p.38) among the most controversial aspects of the liberties protected by the Due Process Clause is disagreement about the scope of the protected liberties. All liberties gain protection, at least in the sense that they are protected from arbitrary legislative and other governmental actions. That protection, however, is far from effective, given the high bar set on challenges to governmental actions: governmental actions must be irrational or arbitrary to violate protected liberties. And some justices still would let stand some unwise laws depending on the nature of the liberty at stake. Supporting such laws may be surprising, but it indicates how the Court recognizes only some liberties as worth heightened protection from governmental infringement: those liberties that the Court deems fundamental. The evolution of rights of privacy into liberty interests may diminish their strength in terms of the scrutiny they require and the protection they receive.

The Court even has articulated a way to determine which liberties gain the most protection. That analysis typically focuses on the historical recognition of the right in question and whether it is clearly articulated in the Constitution. Such an approach is limiting, although as we have seen, some of the liberties that become protected are not necessarily deeply rooted in historical protections (the right to abortion being a primary example, at least as described by the leading cases that addressed the issue). These latter cases examine current circumstances, such as legislation, but that approach gains fewer adherents on the Court. Cases that adopt broader views of liberty also revive concerns about the legitimacy of the Court’s intrusion in matters left to the democratic processes, particularly to state legislatures. In the end, a focus on historical recognition poses limits for adapting to rapid social change, including changes in understanding individuals. In a real sense, the notion of liberty poses problems similar to the concept of privacy—it can be construed broadly or narrowly.

Although the shift may be reasonable and nevertheless raise concerns, it has the benefit of identifying a clearer rationale for protection. Decisional liberties that gain protection are those that center on individuals’ autonomy to determine their life course and enjoy equal citizenship status. Liberties deemed worth protecting are those that allow individuals to control their destiny. As we also have seen, the liberties that gain protection are also likely to be those historically protected; for example, the liberty to withhold medical treatment (the right to die) has been rejected largely on the ground that it is not articulated in the Constitution, and that the legal system has widely prohibited suicide (designating it a crime). The protected liberties are those, essentially, that society deems worth protecting from governmental intrusions—freedom of thought, belief, expression, and behavior; they are what society deems essential to an orderly pursuit of happiness. These developments have important implications for the development of adolescents’ rights.

(p.39) The Decisional Privacy and Liberty Rights of Adolescents

The status of adolescents’ decisional privacy and liberty rights raises enormous perplexities. The Supreme Court has announced that the Constitution recognizes and protects minors’ rights, including the decisional privacy rights that it recognized when it had protected them for adults. Regrettably, the Court has not moved forward to address the broader liberty rights of adolescents to control decisions that determine their development. And, the leading cases that rested on the right to privacy have been revisited and reframed as involving decisional liberty. As a result, this strand of privacy law remains undeveloped. Undeveloped constitutional rights do not necessarily mean that rights are not recognized. An undeveloped status simply means that state and federal legislatures are left to recognize the nature of those rights and determine the extent to which they will receive protection. They do so with only broad guidance from the Court, resulting in much uncertainty.

The current development of adolescents’ rights means that understanding adolescents’ decisional privacy and liberty requires two related lines of analysis. The first line examines constitutional protections and the rationales supporting them. The second looks at legislative responses to determine how the legal system fills constitutional gaps. These two analyses permit us to evaluate how the legal system recognizes and protects adolescents’ decisional privacy and liberty as well as to chart their potential directions.

Overall, the analysis reveals that what matters in recognizing and protecting decisional privacy is the nature of the involved liberty. Current jurisprudence has recognized a small set of liberties, yet many others have not been addressed by the Court. Whether recognized or not yet addressed, the prevailing view is that the nature of adolescents’ rights necessarily involves the liberty of their parents. Issues not yet addressed by the Court raise the fundamental need to determine what is meant by parents’ having the liberty to control their children’s upbringing, and what that means in light of important developments in adolescents’ rights and societal shifts.

Recognizing Adolescents’ Decisional Privacy Rights

Reflecting the Court’s position that the Constitution is not for adults alone, the Supreme Court has recognized that the Constitution grants minors a right to decisional privacy. Unsurprisingly, the reach of these decisions mirrors those of adults. As a result, decisional privacy rights primarily secure reproductive rights and personal health care. The reach also mirrors the general reduction of protections of all rights when applied to minors. Thus, even in the most relevant contexts, the Court far from fully respects the rights of adolescents to act independently without interference from either the government or others charged with fostering their development. Indeed, this (p.40) area of law reveals that decisional privacy rights gain respect in only a very narrow set of circumstances and that parents pervasively control adolescents’ decisional rights.

The first major step taken to recognize the decisional privacy rights of adolescents occurred at the peak of the Court’s recognition and protection of the right for adults. Notably, Planned Parenthood v. Danforth (1976) extended the fundamental right of unmarried, minor women to choose an abortion. To reach that conclusion, Danforth considered the constitutionality of a Missouri statute that required written parental consent before an unmarried woman under the age of 18 could have an abortion within the first 12 weeks of pregnancy. In its analysis, the Court first recognized that minors do have constitutional rights, and that the right to obtain an abortion extended to minors. The Court then proceeded to examine whether the parental consent requirement unconstitutionally burdened minors’ right to privacy. The Court identified the nature of the burden as granting a third party “an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy, regardless of the reason for withholding the consent” (Danforth, p. 74). Such a veto would be impermissible for adults, but whether permissible for adolescents required determining whether parents’ interest to raise their children as they deem fit and their interest in safeguarding the family unit may nevertheless outweigh the minor’s right of privacy. In doing so, the Court concluded that “any independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant” (Id., p. 75). Although the Court recognized competent minors’ decisional abilities, it also noted that it did not “suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy” (Id., p. 75). Recognizing the minors’ right as fundamental, the Court subjected the state to heightened scrutiny and failed to find a compelling reason supporting the restrictions on the minors’ right. Adolescents’ decisional right to abortion may be weightier than that of their parents, but the Court nevertheless ended up limiting minors’ fundamental right to choose an abortion.

Danforth established what would become the mature minor exception to reduced rights. That exception grants decisional privacy rights to mature minors and permits them to choose an abortion without parental consent. The Court does so based on the rationale that the right to control the abortion decision is fundamental for adolescents, who could be deemed adults for the purpose of deciding on abortion. But the Court left much unsettled. The Court left unanswered how a minor’s maturity was determined in the pregnancy termination context. Also unaddressed were other rationales for providing adolescents with decisional privacy; the Court simply noted that granting third parties a blanket veto power over decisions was unconstitutional. Also unaddressed was granting courts the power to veto adolescents’ (p.41) decisions, even though their decisions could be as arbitrary as those of their parents. And the Court even ignored what kind of legal representation a minor could receive—a particularly important point given minors’ potential vulnerability and lack of the resources that might be needed to present compelling evidence to the courts. What the Court did address and find, however, was the permissibility of limiting parents’ claims to authority in raising their children and claims that not supporting parental involvement weakens the family unit. The state’s interests in safeguarding the family unit and parental authority were insufficient to outweigh a mature minors’ right to make a decision to abort a pregnancy.

Even without addressing the full implications of providing adolescents with decisional privacy rights, the Danforth Court was far from unanimous in its approach to minors. The dissenting justices argued that parental consent provisions were constitutional. One dissent criticized the majority’s lack of analysis and found states entitled to protect minors “from their own immature and improvident decisions; and there is absolutely no reason expressed by the majority why the State may not utilize that method here” (Id., p. 95). It emphasized that the decision to terminate the pregnancy is much more than a medical decision. The decision is part of the overall complex and momentous decision to bear a child. The overall significance of that decision gives the state the power to ensure that the minor makes a decision in her best interests, which would include involving parents. Likewise, another dissent expressed the claim that the parental consent requirement was consistent with the holding in Roe v. Wade. It also reasoned that the government’s interest in the welfare of its young citizens justifies a variety of protective measures that reduce the rights of adolescents to make independent decisions. Under this line of reasoning, Roe gave constitutional protection to the abortion decision to emphasize the decision’s importance, a type of protection that does not undermine the state power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision. Still, at this point, these arguments were not persuasive to the majority, nor were they sufficient to have the majority develop more clearly its application of decisional rights to minors.

A term later, in Carey v. Population Services International (1977), the Court recognized minors’ decisional privacy in the context of access to contraceptives. In Carey, the Court addressed the constitutionality of a statute that prohibited the sale of contraceptives to minors, the advertisement or display of contraceptives, and the sale of contraceptives to adults except through a pharmacist. The Court held that the prohibitions on the distribution of contraceptives violated the Due Process Clause of the Fourteenth Amendment. To reach that conclusion, the Court returned to prior cases to highlight that liberty included the right of personal privacy’s interest in independence in making, without unjustified government interference, personal decisions, including an individual’s liberty to make choices regarding contraception. Limiting the distribution of nonprescription contraceptives (p.42) to licensed pharmacists imposed a significant burden on the right of the individuals to use contraceptives if they chose to do so. The Court rejected the limitation, reasoning that the state may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy.

The Carey Court, however, went one step further when it noted that a decision as fundamental as whether to bear a child required that regulations imposing a burden on it be justified only by compelling state interests and that those regulations be narrowly drawn to address those interests. By enlisting such a high standard to determine the legitimacy of state restrictions, the Court deemed the right highly protected. The significance of this move was deliberate, as noted by a sole dissent’s objection to requiring state legislation to meet the exacting “compelling state interest” standard whenever it implicates sexual freedom. That conclusion was based on finding no justification for subjecting restrictions on the sexual activity of the young to heightened judicial review, which would include obscenity, marriage, and consent to sexual activity. Again, like Danforth before it, the Court did not evince concern about the broader implications of affirming adolescents’ decisional privacy rights, even though it was fully aware that those implications loomed large.

The broad view of the right to privacy never took hold. The narrow issue before the Carey Court involved the distribution of nonprescription contraception. Minors’ access to prescription contraception, which would be more intrusive on parental rights, was left unaddressed. Perhaps more importantly for the development of the right to privacy, Carey was the last case in which the ruling opinion rested on the right to privacy protected by the Due Process Clause. Other cases simply would view the issues raised, including abortion decisions, as liberties. As seen below, if the broader issues relating to minors’ access to prescription contraception were to be addressed by the Court, they likely would not be addressed in terms of the decisional right to privacy. The same would appear to be true for other important decisions that would determine minors’ life course. And to exacerbate matters, the other important decisions also would likely be controlled by parents, a point highlighted by the dissenting opinions in Danforth that reiterated the broad right of parents to direct their children’s upbringing and foster their liberties.

Securing (and Limiting) Adolescents’ Decisional Liberty Rights

Just as adults’ decisional privacy rights became framed as liberty rights, so did those involving adolescents. The shift was obvious in the major case addressing adolescents’ right to choose an abortion: Bellotti v. Baird (1979). Because it framed how to address adolescents’ liberty rights, Bellotti would become one of the most important cases to address minors’ rights to make important (p.43) decisions, with or without parental involvement. Still, Bellotti itself and cases following it would place significant limits on adolescents’ decisional liberties.

Bellotti started where Danforth left off, as it again addressed whether requirements of parental notice and consent unduly burdened a minor’s right to seek an abortion. Reflecting changes in how the right was framed, the Court framed the abortion decision in terms of a liberty. Perhaps responding to criticisms that the Court had failed to detail differences between adults and minors, the Court more fully described the rationale for restricting (as well as granting) adolescents’ decisional liberties. In doing so, the Court noted that minor children are not beyond the protection of the Constitution, and that the family’s unique role in our society requires that constitutional principles be applied with sensitivity and flexibility to the special needs of parents and children. The special needs of minors and of their parents led the Court to identify three fundamental reasons for not equating children’s constitutional rights with those of adults.

The first reason centered on children’s peculiar vulnerabilities. In that regard, the cases addressing that matter accepted that children generally are protected by the same constitutional guarantees against governmental deprivations as are adults. But children’s vulnerabilities entitled the state to adjust its legal system to account for them and their needs for “concern … sympathy, and … paternal attention” (Bellotti, p. 622). Legally, children typically required paternalistic responses; they did so because of their needs, the special rights and duties of parents, and society’s own interest in supporting the appropriate development of its vulnerable citizens.

The second justification for treating minors differently stemmed from their general inability to make critical decisions in an informed, mature manner. The Court reasoned that states retained the freedom to limit children’s choices for themselves when those choices had potentially serious consequences. These limitations were grounded in the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them. States may limit these freedoms to protect minors from adverse governmental action and from their own immaturity by requiring parental involvement, and sometimes that of other adults, in minors’ important decisions.

The third justification for reducing adolescents’ decisional liberties rested on the importance of the parental role in child rearing. The Court reasoned that, although protecting minors from their immaturity was an important justification, a more important justification for state deference to parental control over their children stems from parents’ critical role in directing their children’s upbringing. The Court reiterated that parents retained the duty to inculcate moral standards, religious beliefs, and elements of good citizenship. Parents’ affirmative role in teaching, guiding, and inspiring young people into mature, socially responsible citizens, the Court noted, best occurs beyond the reach of impersonal political institutions. The (p.44) parental role was necessary in a society constitutionally committed to the ideals of individual liberty and freedom of choice. Whereas various theories may champion different ways for parents to fulfill their role, the Court emphasized that central to those theories was the belief, deeply rooted in the nation’s history and tradition, that the parental role implies a substantial measure of authority over one’s children and that parents’ claim to authority was basic in the structure of our society.

Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding. (Bellotti, pp. 638–639)

This view led to the conclusion that, for the benefit of children and society, parents who have the primary responsibility for children’s well-being are entitled to the support of laws designed to help them discharge their responsibilities. These justifications were deemed to be rooted deeply in our nation’s history and in the framing of our legal system. Rather than result from empirical observations, they emerged from what the legal system needed to consider when protecting adolescents’ liberties. Those liberties could be protected by having adolescents make their own decisions, having others involved in them, or simply giving the decision-making authority to someone else. This last justification, however, clearly indicated that the Court favored the default rule of involving parents.

Despite the Court’s analysis of factors considered when granting adolescents independent decision-making authority, the Court essentially sidestepped these in the actual case at hand. The Court reasoned that, largely because of the urgency of the decision to abort and given the right to abort recognized in Danforth, if a state decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, it also must provide an alternative procedure for authorizing the abortion. Such a procedure requires a pregnant minor to show in court either (1) that she is sufficiently mature and informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes, or (2) that, even if she is not able to make this decision independently, the desired abortion would be in her best interests. The Court ruled that such a procedure must assure that a resolution of the issue be completed with anonymity and sufficient expedition to provide an effective opportunity for obtaining an abortion. In sum, the procedure must ensure that the provision requiring parental consent does not, in fact, amount to the “absolute; and possibly arbitrary, veto” that Danforth (cited in Bellotti, p. 643) found impermissible.

Importantly, the lead opinion in Bellotti did not refer to privacy. Instead, it referred to the constitutional right to seek an abortion. The case ruled that (p.45) the constitutional right to seek an abortion must not be unduly burdened by state-imposed conditions on initial access to court. The Bellotti Court held that states must provide an alternative to parental consent for a minor’s seeking an abortion, and that the alternative must be provided in a manner that can avoid consulting or notifying parents. Importantly, the burden was on the minor to rebut the presumption of her incompetence to make decisions about her medical care. If the court does not find a minor mature enough, the judge may still grant the minor the ability to have an abortion without parental consent or notification, as long as it would be in the minor’s best interest. Also importantly, the Court declined to decide whether the burden of requiring court proceedings to avoid parental involvement was, per se, an impermissible burden on her right to seek an abortion.

The majority agreed on what to do with mature minors, but four justices who had concurred in the ruling opposed the judicial bypass that gave a judge an absolute veto over an insufficiently mature minor’s abortion decision. They viewed the need for judicial proceedings to be as burdensome to the abortion decision as obtaining parental consent, particularly when the judge must decide what is in the minor’s best interests. But that view did not gain enough support. Instead, the majority’s reasoning suggested that quick, confidential judicial access was a permissible burden that would protect both the rights of the minor and the rights of parents to control their vulnerable children, if a court deemed the parents worthy of that control. Given the nature of the decision, expediting a court’s permission to abort was seen as a reasonable accommodation to protecting the rights of adolescents and their parents.

Bellotti is understood as making important progress in supporting adolescents’ decisional liberties. The Court recognized that mature minors could exercise decisional rights without involving their parents. It also recognized that adolescents could exercise their rights if they could show that it would be in their best interests to do so, regardless of their level of maturity. Only one justice dissented—the same one who had dissented in Danforth. In this case, he dissented on the grounds that Danforth was wrongly decided, and that the Constitution does not permit states to forbid notice to parents when their minor child who seeks surgery objects to such notice and is able to convince a judge that the parents should be denied participation in the decision. And only one other justice seemed to question the ruling. That justice simply joined the Court’s opinion to settle the law until the point in time that the Court can revisit Danforth, which had held that a pregnant minor’s right to make the abortion decision may not be conditioned on the consent of one parent.

Bellotti may have been an important development, but it did not recognize fully adolescents’ right to decide whether to terminate a pregnancy. Minors deemed mature, and who could convince a judge of that maturity, could exercise the right to decide. Other minors could not make the decision on their own, with the potential exception for those who petitioned (p.46) the court for permission on the grounds that it was in their best interests. These limitations were not lost on four justices who concurred in the ruling but objected to requiring a judicial authorization. In their view, requiring judicial approval was tantamount to providing a judge with the authority to veto the decision, when the Court in Danforth had decided that the state does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy. In the end, Bellotti (and Danforth before it) enabled states to require parental involvement, as long as they do not have an absolute veto. But both cases permitted judges to wield such veto powers.

Bellotti may have seemed clear, but it left unsettled nuances in the notification of parents. Ensuing litigation would center on efforts that require notice to parents for dependent and not mature minors. In those cases, the Court would support notice to parents. For example, in H.L. v. Matheson (1981), the Court considered and sustained a Utah statute requiring parental notification in advance of the performance of an abortion on a minor. The Court held that “parents had an important ‘guiding role’ to play in the upbringing of their children, which presumptively included counseling them on important decisions” (Id., p. 410). The Court found that notification did not unconstitutionally burden a dependent and immature pregnant minor’s right to an abortion. And, as a concurrence noted, the case left open the question of whether a notification statute would unconstitutionally burden the right of a mature minor or a minor whose best interests would not be served by parental notification. Their concurrence also concluded that, following Bellotti, a state may not validly require notice to parents in all cases, without providing an independent decision-maker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests. Also, three justices dissented as they emphasized that the right to privacy extends to minors and that, for both the adult and the minor woman, state-imposed burdens on the abortion decision can be justified only by showing that the restrictions advance “significant state interest” (H.L., p. 441). They viewed Utah’s rejection of any exception to the notice requirement for a pregnant minor as not necessary to assure parents this traditional child-rearing role. They also viewed the limitation as an inappropriate burden on the minor’s fundamental right to choose with her physician whether to terminate her pregnancy. The dissenting justices did not argue that all minors had independent rights. But they would allow exceptions to the notification requirement, presumably for mature minors and some who could demonstrate that parental notification was against their best interests. The majority, instead, chose to support a statute that required, without exception, notice to parents when their children were dependent and not mature.

In Hodgson v. Minnesota (1990), the Court evaluated a statute involving parental notification that their dependent minor was to have an abortion. (p.47) The statute provided that, before a physician in Minnesota may perform an abortion on an unemancipated minor, the physician or the physician’s agent must notify both of the minor’s parents, if each one can be located through reasonable effort, either personally or by certified mail at least 48 hours before the abortion is performed. Notification was not required if the abortion was necessary to prevent the minor’s death, or if both parents had consented to the abortion, or if the minor declared that she was the victim of sexual abuse, neglect, or physical abuse. The Court found requiring notification of both parents, regardless of whether both wanted to know or had taken responsibility for raising the child, unconstitutional. The Court’s concern focused on requiring notification of both parents, as it favored notification of only one parent and a 48-hour waiting period. Notably, the case avoided discussion of the minor’s potential maturity and decision-making capacity. The Court simply had found that the state had not offered sufficient justification for involving both parents.

Hodgson, however, had a dizzying number of opinions agreeing partly with each other. One justice held two-parent notification unconstitutional without judicial bypass, but constitutional with bypass. Four justices held two-parent notification constitutional with or without bypass. Four others held two-parent notification unconstitutional with or without bypass. Six justices held one-parent notification with bypass constitutional. Three justices held one-parent notification with bypass unconstitutional. What is clear is that the justices understood the decision as involving a liberty interest and focused on the burdening of the decision. Also clear is the narrowness of the bypass, as there is no focus on the minor’s maturity and nothing prevented informing parents after the procedure, with one reason for the bypass actually leading to notice, given that allegations of maltreatment immediately launch into an investigation and parental involvement.

Despite ambiguity, Hodgson remains the Court’s final word on this area of law. That ambiguity makes it important to revisit the Court’s current reasoning for not providing adolescents decisional privacy in making potentially life-altering decisions without parental involvement. The Court’s support of notice to parents arises from the government’s strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. The cases in this area lead to the conclusion that children have a limited constitutionally protected right to conceal information from their parents. They have that right only if they can obtain judicial permission. If one cannot conceal information, one cannot be said to have much privacy. Apart from an adolescent’s interest in making the decision on her own, minors may have interests in concealing both the pregnancy (and most probably the fact of their being sexually active) and the planned abortion from their parents. The Court, however, has not found this aspect of children’s informational privacy right to be constitutionally protected. Even making the decision on her own is not fully recognized, given that (p.48) the Court permits the involvement of parents through notification. Indeed, notification is justified on the grounds that parents have a right to be involved. It could well be that adolescents deemed mature by a court could avoid having their parents informed, but the Court has yet to unequivocally reach that conclusion. The Court avoided the issue when it had a chance to address it, and when it already had held that requiring a married woman to disclose her abortion decision to her spouse was an unconstitutional burden on her right to choose (see Planned Parenthood v. Casey, 1992, pp. 887–898). Even the most prominent cases recognizing the liberties of adolescents to make important decisions, then, reveal an impulse toward involving parents and recognizing parental liberties and obligations to guide their children’s decisions.

Developments Further Curtailing Adolescents’ Decisional Liberty Rights

Recognizing the importance of decisional liberty rights, the Court extended them to minors. Yet not all minors received the right. And even those who were granted the right gained only limited rights to act without interference, as illustrated by laws that can require parental involvement absent a judicial bypass. The limited decisional privacy rights that are recognized constitute an aberration to the liberty rights of adolescents. Adolescents generally do not have the ability to control their rights, including those protecting their liberties.

The judicial bypass rules developed to address decisional liberties remain narrow. For example, the “mature minor” doctrine allows some minors to consent to medical treatment without parental consent. The Court has yet to declare the doctrine applicable to medical-treatment decisions outside of reproductive rights. This general rule remains: A minor needs the express or implied consent of his or her parents or guardians in order to receive medical treatment. The notion that children do not have the cognitive capacity, experience, and maturity necessary to make complicated life choices continues to permeate this area of the law. In addition, parents, in consultation with the child’s service provider, are presumed to make correct treatment decisions and act in their child’s best interest. Lawmakers presume that the “natural bonds of affection” cause parents to act in their child’s best interests. Thus, parents, as decision-makers for their children, are given wide latitude to authorize their medical care and treatment.

Importantly, the presumption that parents will act in the best interest of their children has roots in constitutional law, not in empirical observations. As we saw in the substantive due process cases that led to the rise of decisional privacy and decisional liberty rights, parents retain control over their children. In Pierce v. Society of Sisters and Prince v. Massachusetts, the Court recognized, as embodied in the Due Process Clause of the Fourteenth (p.49) Amendment, parents’ liberty interest in the custody and management of their children and a corresponding duty to provide care. And, in Meyer, the Court further revealed that parents have an implicit constitutional right to freedom from state intervention in family matters. The basis for the Court’s decisions rested on society’s acceptance of the premise that parents should be able to make choices for their child, without state intrusion, and that parents typically act in their child’s best interests. That recognition actually served to foreshadow the development of this area of law—the focus on liberties rather than decisional privacy.

We also have seen that the rights of parents are not absolute, that a state can intervene when parents have failed or are at risk of failing. When states do so, however, they typically substitute their own preferences rather than grant minors’ decisional liberties. The state’s authority to intervene, based on the doctrine of parens patriae, means that the state has an obligation and a right to protect the interests of its legally disabled citizens, those who cannot protect themselves, including children. The doctrine that permits the intervention requires that the minors be treated as dependents.

The most important case addressing adolescents’ decisional liberty rights outside of the reproductive decision-making context took the opportunity to recognize that adolescents had rights, but that they could be controlled by parents or other adults. That case, Parham v. J.R. (1979), involved minors’ involuntary commitment to mental health institutions for treatment. Although the children may have viewed the admission to a mental health hospital as involuntary, admission was deemed voluntary when sought by their parents and agreed to by mental health staff. In its analysis, the Court did not dispute that a child, in common with adults, has a substantial liberty interest in avoiding unnecessary confinement for medical treatment, but the Court refused to expand children’s rights to direct psychiatric care that was approved by their parents or guardians. The “child’s interest in not being committed” was deemed by the Court to be “inextricably linked with the parents’ interest in and obligation for the welfare and health of the child,” so “the private interest at stake is a combination of the child’s and parents’ concerns” (Id., p. 600). The Parham Court relied on the independent medical judgment of a “neutral” physician to protect the child’s rights.

In Parham, the Court explicitly refused to extend previously recognized limitations on parental rights to control their children’s liberty to make important life decisions. Relying on principles announced in Prince and Danforth, the minors who had been admitted to the psychiatric facility had argued for limiting the traditional rights of parents. They had proposed that, if viewed in the context of the liberty interest of the child and the likelihood of parental abuse, the parents’ decision to have a child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny, including a formal, adversarial, pre-admission hearing. The Court demurred. The Court (p.50) reasoned that when a parental decision is disagreeable to a child or involves risk, this does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The Court supported its claim with the statement that most children, even in adolescence, simply are not able to make sound judgments in regard to many decisions, including their need for medical care or treatment. Given minors’ limitations, parents need to make those judgments, because they retain the authority to decide what is best for their children.

Parham places great emphasis on the right of parents to control their children’s liberties. The Court ruled that parents retain plenary authority to seek highly intrusive care for their children, subject to a physician’s independent examination and medical judgment. The heavy weight given to parental duties made formal or quasiformal hearings unnecessary. A state remains free to require such a hearing, but minors’ liberties are not violated by informal, traditional medical investigative techniques. Even the dissenting justices supported avoiding formal hearings due to the need to support parental obligations and reduce harm to youth, although they would have imposed a hearing with “due consideration of fairly presented opposing viewpoints” after the minor had been admitted (Id., p. 636). The dissenting justices viewed these hearings as permissible because they would not intrude in family affairs, given that the institution’s personnel, rather than the parents, would stand as the child’s possible adversaries. Such a hearing would play a protective role similar to the one in Bellotti, but the majority refused to grant the child’s possible liberty that much protection.

The general trend toward securing parental control of adolescents’ liberties included an area of law that presented as an exception: minors have been granted some rights in areas of personal health. These laws are often referred to as age-of-consent laws and usually involve medical decisions relating to the treatment of sexually transmitted diseases, alcohol, and substance abuse. These statutory exceptions evolved due to increases in sexually transmitted diseases among adolescents and perceptions that adolescents would not seek treatment if they needed to first inform their parents; neither the minor’s maturity nor decision-making capacities were factors. Further, the laws focus on a minor’s right to consent to treatment, rather than on a right to refuse treatment. Statutes that permit minors to obtain alcohol and substance abuse treatment as well as mental health care were enacted on the same premise. The ability of minors to make decisions in these contexts, then, has to do more with societal interests than with minors’ abilities or even parental interests. And minors’ rights remained narrow. Even if adolescents could control these decisions, for example, this control remains strikingly limited in light of the need to pay for the services sought and rendered. And perhaps more importantly, the Supreme Court has yet to address the constitutionality of these statutes.

Outside of the medical context, the Court has avoided recognizing the decisional liberties of minors, even those who could be deemed mature. For (p.51) example, in the leading case of Wisconsin v. Yoder (1972), the Court addressed whether the state could require enrollment in school after the age of 16, in cases where the parents did not want their children to attend. The Court famously ruled that the liberties of parents to direct the development of their children included the removal of children from schools, particularly during the formative adolescent years. In so ruling, the Court referred to Meyer’s claim that parents had a liberty interest, and duty, to direct the upbringing and education of children under their control. The Court even amplified the obligations that had grounded Meyer’s claim of parental liberty; they included “the inculcation of moral standards, religious beliefs, and elements of good citizenship” (Yoder, p. 233). The Court even continued by noting that Pierce stood “as a charter of the rights of parents to direct the religious upbringing of their children” (Yoder, p. 233).

Yoder did more than bring prior parental rights cases squarely within the parents’ decisional liberties framework. It recognized the liberty as broad and unfettered by children’s influence. One sole dissenter did so on the grounds that it would be an invasion of the child’s rights to permit such an imposition without canvassing his views when the child was mature enough to express potentially conflicting desires about leaving formal education (Id., pp. 242–243). He noted that, as a mature child would have no other effective forum, his rights should be considered in the litigation; if the child desires to attend high school, and is mature enough to have that desire respected, the state may well be able to override the parents’ objections. That override would occur, for example, when mature children would be given an opportunity to be heard before the state exempts parents from formal education decisions for their children. Still, the majority was not persuaded. In the Court’s view, it was precisely because the adolescents were gaining maturity and beginning to make important decisions that their parents had a greater interest to control their children’s choices. The case would mirror a slew of cases that would limit adolescents’ liberties in the name of protecting them, such as cases limiting the involvement of minors in pornography, regardless of their potential maturity (see Ginsberg v. New York, 1968). Chapter 4 addresses these cases. For now, it is important to note that these cases use age, rather than maturity, as the proxy for minors’ need for added protection—a form of protection that curtails their liberties. In fact, this line of cases specifically permits limitations on their liberties precisely because they are mature and engage in mature behavior.

Overall, it remains difficult to identify adolescents’ decisional liberties that are not limited. For example, adolescents do not have a recognized right to engage in sexual relationships, yet adults’ right to do so is protected (Lawrence v. Texas, 2003). These limitations have remained consistent and thorough. For example, states can issue a blanket prohibition of sexual activity by those under the age of eighteen. Age-of-consent laws may provide adolescents with the ability to consent to sexual activity, but those laws restrict both the types of sexual activities as well as the partners, and they do not (p.52) involve constitutional status, because states vary considerably in what they will permit. Parents broadly control their minor children’s right to marry, whom they date, and with whom they can live. Some states may allow exceptions, but those tend to be allowed when the minors are no longer legally dependent on the parents. And in some cases, minors’ actions render them legally independent of their parents. This area of law follows the general rule that dependency on parents means reduced decisional liberties for minors, regardless of their maturity, competency, decisional abilities, and relative need for what has been viewed as decisional privacy.

Limitations of Recognized Adolescents’ Decisional Privacy Rights and Claims

This area of law now has been framed as one involving liberties. This is a distinction with a difference. As such, the rationales supporting such liberties have to do with much more than decisional capacity. For adolescents, a focus on liberties means a need to address how their liberties are respected. The legal system charges parents with the duty to foster and shape their children’s liberties. The major limitation on this parental obligation and the prerogatives that go with it has been parental incompetence. The Court has been very clear in stating that parent–child relationships need not be assumed problematic because some parents may fail in their duties. Parents can be assumed to be working in their children’s best interests. That assumption, buttressed by a belief that families help foster the type of democracy on which our society rests, means that adolescents, even mature ones, generally do not retain decisional liberty rights so long as they remain dependent on their parents.

The above conclusion gains support from what was deemed an important exception to the general rule. The exception arose in the context of abortion decision-making, which was the context first associated with the decisional right to privacy and popular notions of the right to privacy itself. In that context, the Court provided adolescents with alternatives to parental involvement. But later developments, at the very least, left unclear the extent to which parents’ involvement can be circumvented, even for adolescents who are deemed mature. The lack of clarity comes from uncertainty about the protections given to parental notification.

Perhaps even more dramatic, however, is the manner in which the leading cases claiming exceptions go out of their way to secure parents’ control over their children’s liberties. Bellotti was hailed as confirming that adolescents have a right to privacy in making important personal decisions—a full right that adolescents could exercise independently if they could demonstrate that they had the requisite ability to do so. But the Court emphasized the “unique nature of the abortion decision” (Id., p. 642) and concluded that limitations on minors’ rights in contexts other than abortion decisions traditionally have been imposed and will continue to be permissible where (p.53) reasonable. Likewise, the Court in Parham emphasized its deference to the traditional concept “of the family as a unit with broad parental authority over minor children” (p. 602). The Parham Court essentially pretended to find adolescents’ liberties worth protecting, as confirmed by the concurrence that came to the same conclusion as the majority but on the grounds that the deprivation of liberty was not the type protected by the Constitution. Both Bellotti and Parham reflect the Court’s reluctance to extend decisional liberties to adolescents. The Court has opted for flexibility in limiting adolescents’ liberties, even when parents can be shown to have potential conflicts of interest. The fundamental concern of decisional privacy for adolescents, then, is parental involvement.

Centering on rationales for parental involvement highlights not only the limitations of adolescents’ rights but also the failure of efforts to address them. Commentators have long argued that adolescents have the capacity to make decisions as soundly as adults, particularly minors aged 15 and older, based on psychological research on decision-making and youth development (Levesque, 2000). This type of research and analysis may be useful for addressing claims of decisional privacy and the need to support appropriate decisional autonomy. As we have seen, however, this area of law has changed substantially. Empirical analyses of the legal system’s regulation of decisional privacy have ill-served constitutional principles by failing to account for the parent–child relationship in a meaningful manner and society’s broad interest in shaping adolescent development.

Conclusions

Important developments mark the right to decisional privacy. The Court has recognized that the Constitution protects individuals’ ability to make decisions that can profoundly influence their futures. That protection eventually became associated with the right to privacy, particularly with controversial decisions such as whether to terminate a pregnancy. Jurisprudential developments have now framed that right as a liberty. The reframing has significance, as not all liberties are fundamental and not all gain a high level of protection.

Protected as a liberty, the right to make important, personal decisions does not flow readily to adolescents. Whereas the Supreme Court has recognized decisional liberty rights in the reproductive decision-making context, it has not extended protections to other domains. Even when the right has been extended to adolescents, it has been limited by a focus on the liberty of parents to raise their children as they deem fit. That protection now most notably emerges from the liberty identified as protected by due process rights. In addition to citing its source in the Constitution, the parental right to raise their children as they deem fit has been understood as important to individuals, broader society, and our political system.

(p.54) The Court has recognized limits on parents’ liberties, but those limits have not led to more liberties for adolescents. In the context where minors have been granted decisional liberty rights against their parents, the state has bestowed decision-making authority to other adults. It did so most notably in the medical context, which requires direct limitations on adolescents’ decisional liberties to provide for judicial bypasses that leave decisional authority to courts. In other contexts, such as mental health or education, the Court leaves the authority to parents or has developed mechanisms to have parents exercise their obligation with other adults deemed sufficiently skilled to guide parents’ decisions. And in instances in which parents are deemed too incompetent to act as parents, the state determines who will direct the liberties of their children.

The overall result of jurisprudential developments in this area is that, in a very narrow set of circumstances, it is left to states to determine whether to reduce adolescents’ decisional liberties in ways they could not do for adults. In that determination, states deal with much more than adolescents’ decision-making capacity. At a minimum, they deal with concerns about involving parents, the special vulnerabilities of youth, and the nature of the decision itself. Adolescents’ maturity and decision-making capacity may be relevant, but it remains only part of the equation for developing legal responses. Otherwise, in the vast majority of circumstances, parental prerogatives must rule.

The role of decision-making capacities and parental prerogatives in this area raises a central concern. If decisional liberties rely heavily on parental involvement, concern must then center on how the legal system can develop ways to protect the privacy of adolescents, when the right is not recognized as one that adolescents could control. Indeed, the focus on the rights that adolescents do have, given that they are so minimal and narrow, detracts from the breadth of rights that they neither control nor have. This is of particular significance given other areas of law relating to adolescents. Notably, as we will see, other rights bestowed on adolescents do not use maturity, decision-making capacity, or independence from parents as markers for allocating rights. The tendency has been to provide adolescents with increased protection when they are deemed immature, inexperienced, dependent, or childlike. How these developments square together remains unaddressed and yet to be determined.

The central concern translates into one action item. The broad power that parents wield shifts concern away from the rights that adolescents might have against their parents. The control that parents have over their adolescents shifts concern toward determining how the legal system can encourage parents to properly address their children’s privacy interests in ways consistent with the foundational rationale for protecting liberties in the first instance. That concern must be coupled with another in that decisional privacy has (p.55) become subsumed under the broad umbrella of liberty. This shift requires those interested in adolescents’ rights to similarly shift toward focusing on how adolescents will figure in the legal system’s efforts to protect individuals’ freedom to define who they are and determine their life course within society’s broadly set parameters. These necessary shifts gain increasing urgency given other developments in adolescents’ rights and societal changes, particularly as they relate to the strands of privacy rights examined in the next two chapters.