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Privacy and the Supreme Court
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16655 |
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Section : |
EDITORIAL
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| Issue
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10 / 1989 |
2,167 Words |
| Author
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Morton A. Kaplan
Editor and Publisher |
The Supreme Court has recently been at the center of political controversy and public attention. (In Current Issues this month the performances of Reagan's Court appointees are examined in the Analysis subsection, while opposing arguments on the moral issues concerning abortion are presented in Commentary.) Apart from the political battles, serious constitutional issues are involved that deserve our careful attention.
A case to be decided by the Supreme Court next year illustrates the extent to which the pseudo-issue of privacy has confused the discussion of Constitutional issues. Nancy Beth Cruzan, a 31-year-old Missouri woman, suffered devastating brain injuries in an automobile accident six years ago. She is comatose and reportedly has no chance of recovery, Nonetheless, she is being kept alive by medical technology against the wishes of her family.
This case raises very important issues that appear and reappear in constitutional cases, including use of the Ninth Amendment, the so-called right to privacy, and the extent to which the Court should defer to the legislature.
In a front-page article in the New York Times, Linda Greenhouse, its Supreme Court reporter, wrote that lawyers who study these issues believe that the recent abortion decision in the Missouri case might affect the Cruzan case because of the restrictions it places on the right to privacy.
They might be correct but only because the Court often decides cases on the basis of reasoning that leaves much to be desired. The confusion with respect to the constitutional principles that affect this case began with Griswold v. Connecticut, where the right to privacy--nowhere specified in the Constitution--was used to invalidate a Connecticut statute that forbade the sale of birth control devices. This issue could have been decided on the basis of the Ninth Amendment, for the use of birth control devices had long been recognized by an overwhelming majority of the public as a right, and, thus, had been implicitly incorporated into that body of unspecified rights to which the article refers. Instead of using the Ninth Amendment, the Court invented a doctrine that could be used to support any type of idiosyncratic demand, no matter to what extent that demand might conflict with the public good.
The use of the Ninth Amendment raises an interesting aspect of documentary interpretation. Constitutional fundamentalists such as the late Justice Hugo Black take the position that
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