(It's finals season, and that means long, boring posts about the subject matter of the classes I have finals in! Today: Constitutional Law, and specifically the Right to Privacy. This post's long and legalistic; it picks up a bit with the paragraph that starts "Moving Along,...", so I'd recommend at least reading from there if you start getting bored.)
Amanda at Pandagon links to this comment published last year in the University of St. Thomas Law Journal. I should point out that this is a comment, not a full-on article. The distinction is that articles in law journals are written and submitted by law professors, while comments are written by law students. Comments are a way for students to get a nice writing sample and build up their resume. So this blog post is just me picking on a fellow student, rather than an actual law professor. Still, I think critiquing the article will be useful. For me, at least.
Shrake starts with a rather grandiose introduction. He likens the Right to Privacy established in Griswold v. Connecticut to the Right to Contract made famous in (though not established by) Lochner v. New York. From there, he argues that, like the Right to Contract, the Right to Privacy should be excised from the Court's jurisprudence. He then claims that by proving Griswold to have been wrongly decided he will have fatally undermined the Right to Privacy.
A little background: Griswold established for the first time a constitutional Right to Privacy. The Right to Privacy is somewhat tricky, as you may have heard, because it's not explicitly articulated in the Constitution. Nonetheless, in Griswold the Court found that a general Right to Privacy existed in the various penumbras to the articulated rights. The holding in Griswold was that married couples had a consitutional right, contained within the Right to Privacy, to make their own reproductive choices. A universal ban on contraceptive pills and devices in Connecticut violated that right, and thus was unconstitutional. The Court later extended this protection to non-married couples, and built on it further in Roe v. Wade when it ruled that categorical bans on abortion were unconstitutional. You don't need to know anything about Lochner except that it is now widely reviled in the legal academy.
Shrake starts with a fairly broad attack on the Right to Privacy, then steps pretty far back from it. He claims that by slaying Griswold he will have done a grievous wound to the Right to Privacy. There are a couple of problems with this. First, it's logically fallacious; Griswold was the first articulation of the Right to Privacy, but it wasn't the last. Overruling Griswold would not, in and of itself, destroy the Right to Privacy, because the right to control one's reproduction is but one aspect of the Right to Privacy. Overruling the first case that articulated a right does not overturn the right in and of itself; it would only do so if the court, in overruling it, renounced its Right to Privacy jurisprudence.
This would be fine if Shrake's argument were against the Right to Privacy itself; if there is no Right to Privacy, Griswold and the other Right to Privacy cases all fall. But he doesn't attack the Right to Privacy. Instead, he acknowledges that the Right exists and that contraception is included among the privacy rights. He then argues within the framework of a fundamental right to contraception that a universal state-wide ban on contraception would nonetheless be constitutional. This is similar to when the government argues that, while the Right to Freedom of Speech exists generally, it is nonetheless justified in restricting it in some particular case. Operating within the rights framework doesn't undermine the right itself, and in fact serves to legitimize the right. Granted, though, the creation of a laundry list of exceptions to a right does tend to undermine that right, and striking down Griswold would be an important psychological blow to the Privacy Right, even if accomplished within a framework that acknowledges the existence of a Right to Privacy.
Now to the meat of the argument. Shrake argues that a statewide ban on contraception would be constitutional if justified in the right way. He acknowledges that the Right to Contraception is considered a fundamental right by the Court and he outlines the standard of review in contraception cases. The Court has established that regulations of contraceptive devices are subject to strict scrutiny. Strict scrutiny allows government to infringe upon a fundamental right only when it serves a compelling state interest and only if the infringing act is narrowly tailored to serve that interest with as little infringement as possible.
Shrake claims that a state that wishes to ban contraceptives would need to argue that the ban serves to protect the health of its citizens while defending the institution of marriage. He cites cases that show that protection of the health of the citizenry has been considered a compelling state interest, as has the promotion of the institution of marriage. The great bulk of the paper is spent showing, first, that contraceptives pose a significant enough health danger that a state would be justified in banning them across the board and, second, that contraception has harmed the institution of marriage and therefore banning it would serve the compelling state interest in defending marriage.
Setting aside the arguments about damage to health and marriage for now, Shrake has been pretty above-board this far in his summary of the standard of review and the grounds for attacking contraception. What's troublesome, though, is his articulation of the particulars of proving a compelling state interest. He cites in particular a case involving the dormant commerce clause (which, sort of, forbids states from enacting regulations that impede interstate commerce). The case of Maine v. Taylor seems to establish that whether a regulation serves a compelling interest is a matter for the trial court to decide based on a preponderance of the evidence. Shrake relies on this throughout the paper to make increasingly grandiose claims about how little the state needs to do to justify infringement of a fundamental right, so it needs to be addressed at the outset. First, Taylor is a Dormant Commerce Clause case, not a Substantive Due Process case (which is what a Griswold challenge would be). So any comparison is dubious at the outset, though this isn't necessarily fatal. The problem is that Shrake was very careful in selecting this case while ignoring a lot of others that invoke strict scrutiny. To put it simply, the Court just isn't consistent about how it determines whether a law serves a compelling interest and is narrowly tailored or not. The Court in Taylor makes some very strong claims about how it is for the trial court to determine whether the state interest is compelling, and that these findings of fact are not to be questioned on appeal. All well and good, but for the Court's tendency to ignore this edict and simply review challenged laws on their faces, regardless of the district court's findings of fact. The Court's willingness to defer to the district court's findings tends to depend heavily on whether or not it agreed with those findings. Shrake makes the extravagant claim that a determination by some podunk magistrate judge that contraception might, possibly, harm someone's marriage, somewhere, will tie the Supreme Court's hands and spell the doom for the Right to Contraception. Perhaps if the Court behaved consistently with Taylor it would, but generally the Court has not.
Moving along, Shrake next argues that a ban on contraceptions would serve the state's compelling interest in protecting the health of its citizens. His justifications fall into three broad categories: First, contraception, on its face and by its nature, harms health. Second, the side effects of contraception could justify banning them for health reasons. Finally, availability of contraception leads to more sex, which in turn leads to more transmission of STDs, and so the state has a compelling interest in banning contraception to prevent the spread of STDs.
The first argument is that the natural, healthy state of the human body is one of fertility. Contraceptives, by their nature, impede fertility. They therefore impede the health of those who use them. So, if you have regular non-contraceptive sex, there's an X% chance of a pregnancy resulting. The X% chance of pregnancy is therefore the bar for "Healthy." If you use a condom, the chance of a pregnancy resulting is something less than X%. Your body is therefore objectively not performing up to its full capacity to impregnate/be impregnated, and so you are unhealthy. Thus, contraceptives impede health, and therefore the state has a compelling interest in banning them.
Leaving aside any number of other objections to this reasoning, and they are many, it suffices to say that it is highly unlikely that a court that recognizes a right to contracept as fundamental will find that contracepting is unhealthy by its nature. Moreover, even using Shrake's generous anything-a-trial-court-says-binds-the-Supreme-Court-now-and-forever standard for determining if a compelling interest exists, this argument is philosophical, not factual. The Court is in no way bound by findings of philosophy made at the trial level.
The second argument is Shrake's most compelling. It lists the litany of negative side effects associated with various contraceptives and argues that a state could rely on these side effects to ban all contraceptives. He concedes, though, that such side effects aren't universal of severe in many cases, so he doesn't lean on this argument too heavily. Nonetheless, this is the closest he comes to a good argument for how a state might justify a universal contraceptive ban. There's no doubt that a state can regulate contraceptives; it can force products off the market that present too great a risk to consumers. Moreover, states can ban whole classes of other medicines if it determines that their side effects create too great a health risk. The difference, though, is that while there isn't a fundamental right to aspirin, there is one to contraceptives. And the problem, as mentioned, is that while the facts might support a ban on some contraceptives, it would be very difficult to twist them to support a universal contraceptive ban. It would be interesting to see how the court would deal with a statute that, for instance, banned all contraceptives except condoms on medical grounds. I still don't think it would pass strict scrutiny, but I do think you could at least make the argument without being laughed out of court.
The last argument, about STDs, marshalls some social science data to argue that the legalization of contraceptives leads to a rise in the transmission of STDs. Shrake seems to realize he's on shaky ground here because he falls back on his loose evidentiary standard. He argues that a trial court need only find that it is a possibility that legalization of contraceptives lead to increased promiscuity, and that increased promiscuity could lead to more STD transmission, to justify a total ban on contraceptives.
Allow me to make something clear: Shrake is dead wrong in his assessment of what is necessary to constitute the sort of compelling interest required to overcome strict scrutiny. The standard of review that he is articulating, that it is more likely than not the case that there exists the possibility that this law could, perhaps, cause something, somewhere to happen that the state would like to happen, is emphatically not the standard for strict scrutiny. Using the Shrake standard, the government could justify a ban on all speech critical of the government on the grounds that somebody, somewhere, might misread it as a call for violence against the government, and therefore the ban serves the compelling interest of protecting national security. Shrake sets the standard for strict scrutiny so laughably low that we know he must be using some sleight of hand, like those math tricks that purport to show that 1 = 2.
Anyhow, the evidence on STD transmission and contraception is conflicting enough that it's unlikely that the Supreme Court would buy this argument.
Shrake then moves on to marriage. There's a fun passage where he compares sex to nuclear power; enormously useful when used carefully, but endlessly destructive if used incautiously. Therefore, throughout history government has regulated sex the same way it regulates nuclear power today. Through adultery and fornication laws it forbids all sex outside of sanctioned marriages. Through laws that define what are legitimate marriages it ensures that the only sex that occurs is sex between pairings the government approves of. And once sex is corralled into carefully defined marital relationships (and other laws ensure that no sex is occuring outside these relationships) the government can carefully regulate marital relations to ensure that the awesome, fearful power that is sex is not handled in an incautious way. All it takes is one act of sexual intercourse in reverse cowboy position and BAM!, there goes Cincinnati.
Okay, so that passage is one of the more overwrought. Still, he then moves on to the less goofy argument that contraceptions lead to divorce and divorce is bad for marriage. You could make a darn good philosophical argument that, if the government's concerned with the overall institution of marriage, ensuring that fewer marriages end in divorce isn't necessarily the way to go about it. That is, those marriages that would otherwise end in divorce probably aren't the pillars you want the ediface of marriage to be standing on. Maybe letting divorce happen is good for the overall institution, insofar as it provides for error correction. Nonetheless, the broader problem is that the social science data isn't quite clear yet that contraceptive access leads to divorce, and if it does why that should be. Shrake posits that it's because contraceptive access makes extramarital affairs easier. Leaving aside, again, the question of how great these marriages in which the spouses would be having affairs and divorcing if only there was a way to avoid getting pregnant and/or infected, this argument faces a narrow tailoring problem. The problem is sex that occurs between a married person and an unmarried person, but a ban on all contraceptives means that contraceptives also can't be used in sex between married partners, which isn't alledged to have a bad effect on marriage, or sex between two unmarried persons, which also isn't alledged to harm the institution of marriage. The regulation would be overbroad, and so it would fail.
Shrake concludes with a paean to the Rhythm Method. He argues that banning all contraceptives would be narrowly tailored, because people can always use the Rhythm Method to avoid pregnancy. It seems unlikely that the Court would buy this as a reasonable alternative to contraceptives.
