Substantive Due Process: Dangerous or Necessary?

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physically harassing patients and doctors, visiting the private residences of patients and staff, and jamming the clinic’s phone lines. Operation Rescue appealed, claiming that the injunction was a violation of their First Amendment rights to freedom of speech, freedom of association, and free exercise of religion. 11 Neither side contested that the purpose of the injunction was to limit the free speech of Operation Rescue. The limitation of speech, however, does not violate the First Amendment per se—the Supreme Court has established that state governments can limit speech so long as the limitation is “narrowly-tailored to serve a significant government interest.” 12 The Florida Supreme Court held that in this instance the injunction was constitutional because the state had two significant interests to protect: the right to medical privacy and the right to seek lawful prenatal care. The Court derived the former interest from Frisby v. Schultz, wherein the Supreme Court held that the right to privacy within one’s home, labeled “residential privacy,” qualified as a compelling state interest to limit the free speech of pro-life picketers. 13 The Florida Court concluded that the principle of residential privacy, which is intended to protect the most private spaces from unwanted speech, extends to medical affairs as well; just as Florida’s citizens have a right to control the speech within their homes, they have a right to avoid confrontation about their most private medical matters, especially if such conflict risks endangering their health and safety. In this case, the court found that the state was reasonable in concluding that the pro-life protestors, who often approached clinic visitors to discuss their medical decisions without their consent, may have violated the women’s medical privacy and caused them high enough levels of fear and anxiety that they would be at heightened risk during their procedures. 14 The right to seek prenatal care is also based on Supreme Court precedent—specifically, Roe v. Wade (1973). Unlike its approach with the first state interest, the Court does not explain in detail how the current case connects with the precedent, only stating that the right to seek prenatal care is a “clear personal right” under Roe. 15 The fact that an implicit derivation of a right to privacy in Roe had become clear constitutional precedent to the Florida court demonstrates the 11 Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 1993 Fla. LEXIS 1739, 18 Fla. L. Weekly S 559 (Supreme Court of Florida October 28, 1993, Decided), 14. 12 Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 21. 13 Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 23. 14 Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 24. 15 Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 22.
enormous power of a given application of the Fourteenth Amendment to shape, and potentially supersede, other enumerated rights. All of these rights—the right to an abortion, the right to residential privacy, and the right to medical privacy—are derived from the Due Process Clause of the Fourteenth Amendment. The foundation for this logic was laid in Griswold v. Connecticut (1965), in which Justice Douglas argued that the First, Third, Fourth, and Fifth Amendments all have the shared intention of protecting our privacy in various respects—the privacy of our religious affiliation, of our property, and, in the case of the Fifth, our thoughts. These overlapping “penumbras,” combined with the intention of the Ninth Amendment to protect unenumerated rights, indicate that the Founding Fathers intentionally enshrined a right to privacy in the spirit of the Constitution. 16 This complicated legal reasoning is necessary because, while the Fourteenth Amendment’s Due Process clause prevents the states from depriving any person of life, liberty, or property without due process of law, it does not define those three terms further. Operation Rescue’s case did not end with the Florida Supreme Court. In a separate challenge, the U.S. Court of Appeals for the Eleventh Circuit struck down the Florida injunction; it held that the purpose of the injunction—to protect public health and safety—was already served by existing laws, and that such interests could be satisfied without infringing on the First Amendment rights of others. 17 The Supreme Court took the case, under the new name of Madsen v. Women’s Health Center (1994), to resolve the conflict between the Florida Supreme Court and the Court of Appeals. The Supreme Court agreed with the Florida court in its assessment of the state interests, both as it pertained to access to prenatal care and medical privacy. It decided, however, that the standard used by the Florida court to evaluate the limitation of speech—the “narrowly tailored” standard—did not fit the circumstances appropriately; that standard was designed for an ordinance, which applies to all persons governed by that body, rather than injunctions, which target specific groups. Instead, the Court devised a new standard: that injunctions should limit speech no more than necessary to serve the interest of the plaintiff. Since the interest of the 16 Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, 1965 U.S. LEXIS 2282 (Supreme Court of the United States June 7, 1965, Decided). 17 Madsen v. Women's Health Ctr., 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593, 1994 U.S. LEXIS 5087, 62 U.S.L.W. 4686, 94 Cal. Daily Op. Service 5040, 94 Daily Journal DAR 9272, 8 Fla. L. Weekly Fed. S 426 (Supreme Court of the United States June 30, 1994, Decided).
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