Yorko v. State

CLINTON, Judge,

dissenting.

Whether an answer is correct may well depend on how the question is framed. From its perception of the issues, the majority’s question is:

“Put another way, is there a right to stimulate human genital organs with an object designed or marketed as useful primarily for that purpose, such that the right is a ‘fundamental’ one ‘implicit in the concept of ordered liberty’? Roe v. Wade, supra, quoting Palko v. Connecticut.” 1

In Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937), the Supreme Court was deciding whether a statute permitting appeals in criminal cases to be taken by the State infringed the Fourteenth Amendment to the Constitution of the United States. Id., U.S. at 320, S.Ct. at 149. In the course of coming to its conclusions that execution of the sentence against him “will not deprive appellant of his life without due process of law assured to him by the Fourteenth Amendment,” id., U.S. at 322, S.Ct. at 150, and that his conviction “is not in derogation of any privileges or immunities that belong to him as a citizen of the United States,” id., U.S. at *267 328, S.Ct. at 153, the Supreme Court pointed to instances in which certain protections afforded by particular provisions of the Bill of Rights had been “incorporated” into the Fourteenth Amendment, and stated:

“In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.”

Id., U.S. at 324-325, S.Ct. at 151-152. Then in the next paragraph of the opinion there is mention of rights such as trial by jury and immunity from prosecution except upon indictment that “may have value and importance [but] are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ [Citations omitted.]” 2

So when Justice Blackmun came to write the opinion of the Supreme Court in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), he sought to sustain a constitutional “right of personal privacy” by identifying decisions which had found one source or another of that right — “decisions mak[ing] it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, [supra] are included in this guarantee of personal privacy.” He then catalogued several decisions showing activities to which the right of privacy had been extended, and concluded:

“This 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, in the Ninth Amendment’s general reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Id., 410 U.S. at 152 , 93 S.Ct. at 727. 3

Thus if one must be posed, the question is more properly framed as follows:

Whether the constitutional right of personal privacy is broad enough to encompass a person’s decision to engage in private consensual sexual activity that includes stimulating human genital organs with an object designed to be primarily useful for that purpose?

If the answer is in the affirmative, then it follows from what the majority itself says is the “full import” of the “contraception cases” that “[restrictions of the distribution of [such objects] clearly burden the freedom to make such decisions.” 4

The answer given by the majority to its own question is derived from bits and pieces of opinions deciding First Amendment law pertaining to obscenity. Particularly favored is Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 37 L.Ed.2d 419 (1973). But Roth takes care to explain that “sex and obscenity are not synonymous,” id., U.S. at 487, S.Ct. at 1310.

*268 Obscene material is condemned because of its “tendency to excite lustful thoughts,” Roth ibid, n. 20. Sex is sexually motivated behavior or phenomena — “a great and mysterious motive force in human life [that] has indisputably been a subject of absorbing interest to mankind through the ages,” Roth, supra, U.S. at 487, S.Ct. at 1310. 5

An unwritten but necessary premise in both abortion and contraception cases is that the constitutional personal right of privacy in such matters of personal liberty encompasses the threshold decision of whether to engage in sexual activity at all. When the first decision is to indulge in one of “the most intimate of human activities and relationships,” Carey, supra, U.S. at 685, S.Ct. at 2016, naturally involving “the stimulation of human genital organs,” whether to use contraceptives in order to prevent conception or, as the majority phrases it, “to implement the decision not to beget a child” is a secondary decision. That the Constitution provides the freedom to make the second decision necessarily means that the right to make the first one is protected.

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Eisenstadt v. Baird, 405 U.S. 438, 453 , 92 S.Ct. 1029, 1038 , 31 L.Ed.2d 349 (1974). If such decisions are “among the most private and sensitive,” Carey, supra, U.S. at 685, S.Ct. at 2016, the right of the individual, married or single, to be free from governmental intrusion into matters so fundamentally affecting a person as the decision whether to engage in private consensual sexual activity in the first instances must be practically invulnerable.

The majority need not look for Supreme Court decisions to find “any fundamental right to use ... devices” that are said to be obscene. It is sufficient that there is a constitutional right to personal privacy broad enough to encompass a person’s decision to engage in private consensual sexual activity in any manner or means not proscribed by law.

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. * * * They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.”

Olmstead v. United States, 277 U.S. 438, 478 , 48 S.Ct. 564, 572 , 72 L.Ed. 944, 956 (1928) (Brandeis, J., dissenting). They did not contemplate that exercise of the right could be infringed by notions of “the social interest in order and morality,” that the Supreme Court found in Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766 , 86 L.Ed. 1031 (1942), justified a State in proscribing and punishing uttering “ ‘fighting’ words” to a City Marshall on a public sidewalk near the entrance to City Hall.

I respectfully dissent.

. All emphasis is mine unless otherwise indicated.

. As to right to trial by jury at least, the dicta was overruled in Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969).

. Though Justice Blackmun utilized some terminology from Palko , his opinion of the Supreme Court makes plain that a right of privacy flows from the personal "liberty" interest that is protected by the Due Process Clause of the Fourteenth Amendment. Unlike Palko, Roe v. Wade is not concerned with privileges and immunities of citizens of the United States.

. The majority excerpts a portion from part III of the opinion in Carey v. Population Services International, 431 U.S. 684 , 97 S.Ct. 2010 , 52 L.Ed.2d 675 (1977); the issue being addressed is validity of statutory restrictions on "distribution of nonprescription contraceptives.” Immediately following what the majority quotes the opinion continues:

“A total prohibition against sales of contraceptives, for example, would intrude upon individual decisions in matters of procreation and contraception as harshly as a direct ban on their use. Indeed, in practice, a prohibition against all sales, since more easily and less offensively enforced, might have an even more devastating effect upon the freedom to choose contraception. Cf. Poe v. Ullman, 367 U.S. 497 , 81 S.Ct. 1752 , 6 L.Ed.2d 989 (1961).”

Id., U.S. at 688-689, S.Ct. at 2017.

. In saying that "obscene material and obscene devices are used for the same purpose,” surely the majority does not mean to equate lustful thoughts with private sexual activity. If it does, some supporting authority would aid one in comprehending the equation.