Motion to Affirm — City of Brainerd v. Minnesota State Board of Health

IN THE

Supreme Court of the Unite

October Term 1976

No. 76-32

CITY OF BRAINERD, ET AL.,

Appellants,

vs.

MINNESOTA STATE BOARD OF HEALTH

BY WARREN R. LAWSON, M. D.,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF MINNESOTA

MOTION TO AFFIRM AND ALTERNATIVE

MOTION TO DISMISS WITH SUPPORTING

BRIEF BY APPELLEE

WARREN SPANNAUS

Attorney General

RICHARD B. ALLYN

Solicitor General

RICHARD A. WEXLER

Assistant Attorney General

232 Minnesota Health Dept.

Building

717 Delaware Street Southeast

Minneapolis, Minnesota 55440

Telephone: (612) 296-5370

Attorneys for Appellee

724-7631 — Review Publishing Co., 287 E. 6th K. St. Paul, Minn. 55101 — 224-7631

—— EN PE

TABLE OF CONTENTS

PAGE

Motion to Affirm and Alternative Motion to Dismiss | 1

Statement of the Case ö 2

Argument eit 3 ace 4

Brainerd’s Appeal Should Be Dismissed As No Sub-

stantial Federal Question is Presented 2 4

A. This Court has repeatedly ruled in fluoridation

cases raising every claim of unconstitutionality

here asserted that this health measure presents

no substantial federal question | 4

B. A substantial federal question is not raised by

the Minnesota Supreme Court taking judicial

notice of scientific data demonstrating the

benefits and safety of water f uoridation 8

C. Prior decisions of this Court support the con-

clusion that fluoridaticn does not violate the

right to personal privacy 10

Conclusion a VV 0 15

TABLE OF AUTHORITIES

Minn. Stat. $144.145 (1974)

Supreme Court Rule 16(1) (b)

Alkire v. Cashman,

477 F. 2d 598, cert. denied, 414 U.S. 858 (1973)

Attaya v. Town of Gonzales,

192 So.2d 188 (Ct. App. La. 1966)

Baer v. City of Bend,

206 Or. 221, 292 P.2d 134 (1956)

Birnel v. Town of Fircrest,

Wash. 2d 830, 335 P.2d 819 (1959),

appeal dismissed, 361 U.S. 10 (1959)

Breese v. Smith,

501 P.2d 159 (Alas. 1972)

Breithaupt v. Abram,

352 U.S. 432, 439 (1957)

Chapman v. City of Shreveport,

225 La. 859, 74 So.2d 142 (1954),

appeal dismissed, 348 U.S. 892 (1954)

City Commission of Fort Pierce v. State ex rel.

Altenhoff, 143 So.2d 879 (Ct. App. Fla. 1962),

appeal dismissed, 154 So.2d 208 (Ct. App. Fla. 1963)

City of Canton v. Whitman,

44 Ohio 62 (1975), appeal dismissed,

96 S.Ct. 1735 (U.S. 1976)

Crawford v. City of Detroit,

389 F.2d 1001 (6th Cir. 1968)

DeAryan v. Butler,

119 Cal. App.2d 674, 260 P.2d 98 (1953),

cert. denied, 347 U.S. 1012 (1954)

ii

PAGE

12

12

—

Dowell v. City of Tulsa,

273 P. 2d 859 (Okla. 1954),

cert. denied, 348 U.S. 912 (1955)

Eisenstadt v. Baird,

405 U.S. 438, 454 (1972)

Equitable Life Assurance Society v. Brown,

187 U.S. 308, 311, 315 (1902)

Froncek v. City of Milwaukee,

269 Wis. 276, 69 N.W.2d 242 (1955)

Graybeal v. McNevin,

439 S.W.2d 323 (Ky. 1969)

Griswold v. Connecticut,

381 U.S. 484 (1965)

Hall v. Bates,

247 S.C. 511, 148 S. E. 2d 345 (1966)

Honeyman v. Hanan,

300 U.S. 14 (1937)

Jacobson v. Massachusetts,

197 U.S. 11 (1905)

Kaul v. City of Chehalis,

45 Wash.2d 616, 277 P.2d 352 (1955)

Kraus v. City of Cleveland,

163 Ohio 559, 127 N.E.2d 609 (1955),

appeal dismissed, 351 U.S. 935 (1956)

Miller v. City of Evansville,

247 Ind. 563, 219 N.E.2d 900 (1966)

Minnesota State Board of Health v. The City of

Brainerd, —— Minn. ——,

241 N.W.2d 624, —— (1976)

MOF v. State Board of Health and Brainerd

ili

PAGE

14

9,13

Ohio ex rel. Eaton v. Price,

360 U.S. 246, 247 (1959)

Opinion of the Justices,

243 A.2d 716 (Del. 1968)

Paduano v. City of New York,

45 Misc.2d 718, 257 N.Y.D.3f 641, affirmed,

24 App. Div.2d 437, 260 N.Y.S.2d 831 (1965),

affirmed, 17 N.Y.2d 875, 218 N.E.2d 339,

271 N.Y.S.2d 305 (1966), cert. denied,

385 U.S. 1026 (1967)

Paris Adult Theatre v. Slaton,

413 U.S. 49, 65, 66 (1973)

Ravin v. State of Alaska,

537 P.2d 494 (Alas. 1975)

Readey v. St. Louis County Water Co.,

352 S.W.2d 622 (Mo. 1961), appeal dismissed,

371 U.S. 8 (1962)

Roe v. Wade, supra at 154

Regowski v. City of Detroit,

374 Mich. 408, 423, 424, 132 N.W.2d 16, 24 (1965)

Rogowski v. City of Detroit,

374 Mich. 408, 132 N.W.2d 16 (1965)

Schmerber v. California,

384 U.S. 757 (1966)

Schuringa v. City of Chicago,

300 III. 2d 504, 198 N.E.2d 326 (1964),

cert. denied, 379 U.S. 964 (1965)

Stanley v. Georgia,

394 U.S. 557 (1969)

iv

PAGE

11,12

12

11

Stroupe v. Eller,

362 N. C. 573, 138 S. E. 2d 240 (1964)

Teeter v. Municipal City of La Porte,

236 Ind. 146, 139 N. E. 2d 158 (1956)

Union Pacific Railway Company v. Botsford,

141 U.S. 250 (1891)

Viemeister v. White,

179 N.Y. 235, 72 N.E.97 (19)

Wilson v. City of Council Bluffs,

253 Iowa 162, 110 N. W. 2d 569 (1961)

Wilson v. City of Mountlake Terrace,

69 Wash. 2d 148, 417 P. 2d 632 (1966)

Zucht v. King,

260 U.S. 176 (1922)

PAGE

4, 6

—— EEE

a

IN THE

Supreme Court of the United States

October Term 1976

No. 76-32

CITY OF BRAINERD, ET AL.,

Appellants,

vs.

MINNESOTA STATE BOARD OF HEALTH

BY WARREN R. LAWSON, M. D.,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF MINNESOTA

MOTION TO AFFIRM AND ALTERNATIVE

MOTION TO DISMISS WITH SUPPORTING

ö BRIEF BY APPELLEE

MOTION TO AFFIRM AND ALTERNATIVE

MOTION TO DISMISS

Minnesota State Board of Health by Warren R. Lawson,

M. D., Appellee in the above-entitled cause, pursuant to Rule

16 of the Revised Rules of the Supreme Court of the United

States, moves that the final judgment and decree of the Su-

preme Court of Minnesota in the above captioned matter be

affirmed and, in the alternative, that the appeal herein be dis-

missed on the ground that the question presented is so unsub-

stantial as not to warrant further argument.

2

STATEMENT OF THE CASE

With three major exceptions, Appellee Minnesota State

Board of Health (hereinafter the Board“) adopts as substan-

tially correct the procedural history contained in the Juris-

dictional Statement! of Appellant City of Brainerd (herein-

after “Brainerd’’). First, the Board takes exception to Brain-

erd’s repeated reference to a special fluoridation election and

a meeting called the “Brainerd Convention,” held in Brainerd,

Minnesota, on July 5, 1974. While such an election and meet-

ing did indeed occur, the Board denies that they have any rele-

vance to the instant appeal. Accordingly, their effect is not

addressed at length herein.?

Second, Brainerd incorrectly asserts that the issues in

MOFF v. State Board of Health and Brainerd* were limited

to whether or not Minn. Stat. §144.145 (1974) (hereinafter

the “fluoridation law”) was an unlawful exercise of the state

police power. Directly in issue and decided against plaintiff

1 Brainerd’s Jurisdictional Statement at 5-10 (hereinafter “J.S. at

— .

2 The Minnesota Supreme Court dismissed the Brainerd “constitu-

tionai convention” as legally insignificant. Minnesota State Board

of Health v. The City of Brainerd, —— Minn. ——, 241 N.W.2d 624,

633 (footnote 5) (1976).

Minnesota District Court, Crow Wing County, No. 37168, Aug. 30,

1973. In this case plaintiff, Minnesotans Opposed to Forced Fluori-

dation, a non profit corporation consisting of many Brainerd citi-

zens sought an injunction against defendants from enforcing and

implementing the fluoridation law and a declaration that it was

unconstitutional and that fluoridation constituted pollution.

—

3

was the question of whether or not the fluoridation law vio-

lated plaintiff's right to privacy.“

Finally, Brainerd claims that the majority of the Supreme

Court of Minnesota held that a substantial federal question

of constitutional privacy was involved. Nowhere in the deci-

sion did the majority say the federal question was substan-

tial. To the contrary, the majority stated that “such an in-

fringement, absent any significant adverse consequences to

the individual, cannot be accorded substantial weight.” Min-

nesota State Board of Health v. The City of Brainerd, ——

Minn. . , 241 N.W.2d 624, 632 (1976).

In dismissing this claim the District Court stated:

However, plaintiff claims . . . that fluoridation constitutes an

‘invasion of the right to privacy which is within the penumbra of

the Ninth Amendment’ to the U.S. Constitution and cites Gris-

wold v. Connecticut, 381 U.S. 479, as authority for such proposi-

tion. . In the present case, I am not disposed to find M.S. Sec.

144.145 unconstitutional on the basis of Griswold for two reasons:

first, I am uncertain as to the precise aspect of the right of

privacy which is here involved; and, secondly, it is clear that

whatever the precise aspect of the right of privacy may be in

this case, it would require some extension or enlargement of the

“penumbra” relied upon by the Court in Griswold. . . Since the

present case involves a matter of public health, it relates in my

opinion to a social condition .. and is thus one where even the

U.S. Supreme Court would decline to determine the wisdom, need

and propriety of the Minnesota legislature’s enactment of M.S.

144.145.

See Respondent's Brief and Appendix filed with the Minnesota

Supreme Court at RA- 20, RA-21.

4

ARGUMENT

BRAINERD’S APPEAL SHOULD BE DISMISSED AS NO

SUBSTANTIAL FEDERAL QUESTION IS PRESENTED.

Even though a state court has formally determined a fed-

eral question, the United States Supreme Court may nonethe-

less dismiss an appeal when the question is not substantial.

Supreme Court Rule 16(1)(b) ; Honeyman v. Hanan, 300 U.S.

14 (1937) ; Zucht v. King, 260 U.S. 176 (1922). Therefore, the

fact per se that a federal question was raised and decided in

the state court, as was true here, is not determinative. While

the Board agrees with Brainerd that a substantial federal

question exists only when the issue is consequential, difficult,

and not clearly resolved by the established precedents of this

Court, contrary to Brainerd’s assertion, the issues of this case

have been clearly resolved by the established precedents of

this Court. Therefore, the Board moves the affirmance of the

decision of the Minnesota Supreme Court or dismissal of

Brainerd’s appeal.

A. This court has repeatedly ruled in fluoridation cases

raising every claim of unconstitutionality here asserted

that this health measure presents no substantial federal

question.

Fluoridation has been practiced in the United States as a

public health measure for approximately thirty years with

about 100 million people in the United States presently con-

suming municipally fluoridated water. During this period,

the constitutionality of fluoridation has been repeatedly chal-

5

lenged. Both state and federal courts have rejected these at-

tacks with complete unanimity.“

Of the eleven cases where the United States Supreme Court

declined to review state supreme court decisions upholding the

constitutionality of fluoridation, five were direct appeals dis-

missed for want of a substantial federal question. City of Can-

ton v. Whitman, 44 Ohio St.2d 62 (1975), appeal dismissed, 96

S.Ct. 1735 (U.S. 1976), Readey v. St. Louis County Water Co.,

352 S.W.2d 622 (Mo. 1961), appeal dismissed, 371 U.S. 8

(1962) ; Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d

819 (1959), appeal dismissed, 361 U.S. 10 (1959); Kraus v.

City of Cleveland, 168 Ohio 559, 127 N.E.2d 609 (1955), ap-

peal dismissed, 351 U.S. 935 (1956); Chapman v. City of

Shreveport, 225 La. 859, 74 So.2d 142 (1954), appeal dis-

missed, 348 U.S. 892 (1954). The dismissals in these cases are

decisions on the merits. Ohio ex rel. Eaton v. Price, 360 U.S.

246, 247 (1959) ; Equitable Life Assurance Society v. Brown,

187 U.S. 308, 311, 315 (1902). In these cases, every claim of

unconstitutionality asserted by Brainerd was presented to this

Court. Appellants in Chapman, Kraus, and Birnel, supra,

5 The cases for which review by this Court either by direct appeal

or by writ of certiorari have not been sought are:

Graybeal v. McNevin, 439 S.W.2d 323 (Ky. 1969); Opinion of the

Justices, 243 A.2d 716 (Del. 1968); Crawford v. City of Detroit,

389 F.2d 1001 (6th Cir. 1968); Attaya v. Town of Gonzales, 192

So.2d 188 (Ct. App. La. 1966); Hall v. Bates. 247 S.C. 511, 148

S.E.2d 345 (1966); Wilson v. City of Mountlake Terrace, 69 Wash.

2d 148, 417 P.2d 632 (1966); Miller v. City of Evansville, 247 Ind.

563, 219 N.E.2d 900 (1966); Rogowski v. City of Detroit, 374 Mich.

408, 132 N.W.2d 16 (1965); Stroupe v. Eller, 362 N.C. 573, 138 S. E. 2d

240 (1964); City Commission of Fort Pierce v. State ex rel. Alten-

hoff, 143 So.2d 879 (Ct. App. Fa. 1962), appeal dismissed, 154

So.2d 208 (Ct. App. Fla. 1963); Wilson v. City of Council Bluffs,

253 Iowa 162, 110 N.W.2d 569 (1961); Teeter v. Municipal City of

LaPorte, 236 Ind. 146, 139 N.E.2d 158 (1956); Baer v. City of Bend,

206 Or. 221, 292 P.2d 134 (1956); Kaul v. City of Chehalis, 45 Wash.

2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269

Wis. 276, 69 N.W.2d 242 (1955).

alleged inter alia that fluoridation of municipal water supplies

was unconstitutional because (a) it constitutes compulsory

medication; (b) it is or may be harmful to health; (e) it is

directed against a noncontagious disease;* and (d) allegedly

alternative methods of administering fluoride to children are

available.“ In the instant matter Brainerd argues that fluorida-

tion violates the right of its citizens to personal privacy and

bodily integrity in contravention of the Fourteenth Amend-

ment of the United States Constitution. However, Brainerd’s

argument is simply a rewording of the compulsory medication

and related arguments listed above which this Court has found

in Birnel, Kraus and Chapman, supra, do not constitute a sub-

stantial federal question.

In addition, this court denied certiorari in six cases wherein

the constitutionality of fluoridation was upheld by highest

state courts. City of Canton v. Whitman, supra; Alkire v. Cash-

6 See the jurisdictional statements of Chapman, pp. 4, 6-7; Kraus,

pp. 4, 10; and Birnel, p. 4.

7 See the jurisdictional statements of Chapman, pp. 4, 6; Kraus, p. 10;

and Birnel, pp. 6-7.

8 See the jurisdictional statements of Chapman, p. 4; Krause, p. 22;

and Birnel, p. 10. With respect to this issue, the Supreme Court of

the State of Michigan has stated:

It is true that the smallpox disease involved in [Jacobson v.

Massachusetts, 197 U.S. 11 (1905)] is infectious or contagious

while dental caries is not. Plaintiffs cite no cases to the effect

that element is essential to the power of the State to adopt and

enforce regulations designed to protect or improve public health.

We conceive of no sound reason for so holding.

Rogowski v. City of Detroit, 374 Mich. 408, 423, 424, 132 N.W.2d 16,

24 (1965). Brainerd also fails to cite any cases supporting this con-

tention. In fact Brainerd cites with approval Zucht v. King, 260

U.S. 174 (1922). Zucht involved a challenge to a compulsory vac-

cination law in which plaintiff alleged, inter alia, that there was

no occasion for requiring vaccination. In other words, plaintiff

claimed that under the existing circumstances vaccination was not

necessary to prevent contagious disease. Defendants filed a gen-

eral demur the effect of which is to admit all facts alleged by

piaintiff. This Court found notwithstanding that the vaccination

requirement was not needed that no substantial federal question

was involved.

® See the jurisdictional statements of Kraus, p. 11, and Birnel, p. 7, 9.

— Gry.

7

man, 477 F.2d 598, cert. denied, 414 U.S. 858 (1973) ; Paduano

v. City of New York, 45 Misc.2d 718, 257 N.Y.S.2d 531,

affirmed, 24 App. Div.2d 437, 260 N.Y.S.2d 831 (1965),

affirmed, 17 N.Y.2d 875, 218 N.E.2d 339, 271 N.Y.S.2d 305

(1966), cert. denied, 385 U.S. 1026 (1967); Schuringa v. City

of Chicago, 300 III. 2d 504, 198 N.E.2d 326 (1964), cert. denied,

379 U.S. 964 (1965) ; DeAryan v. Butler, 119 Cal. App.2d 674,

260 P.2d ™ (1953), cert. denied, 347 U.S. 1012 (1954);

Dowell v. City of Tulsa, 273 P.2d 859 (Okla. 1954), cert.

denied, 348 U.S. 912 (1955). The petitioners in these cases

argued unsuccessfully every question of constitutionality

raised by Brainerd. Alkire and Paduano, supra, directly raised

the question of whether fluoridation violated the right to

privacy. By denying the writs of certiorari, this Court found

in essence that the privacy question in the fluoridation con-

text was insubstantial.

As the foregoing dramatically demonstrates, Brainerd is

totally and completely incorrect when it asserts that plaintiffs

in these cases,

could not be heard to claim that the statute inter-

feres with the inherent privacy rights of the individuals

10 See pp. 2, 8-10 of Alkire’s Petition for Writ of Certiorari. In Padu-

ano the New York Court of Appeals held that the “fluoridation

program does not constitute a significant invasion of fundamental

rights.” 18 N.Y.2d 721, 220 N.E.2d 803, 274 N.Y.S.2d 158 (1966). This

issue was raised then in the Petition for a Writ of Certiorari, pp.

4, 6, 7, 13-23.

11 The other questions raised by these cases were, with page refer-

ences to the petitions for certiorari:

(1) Compulsory medication, Alkire, p. 8, Paduano, p. 3, Schur-

inga, pp. 2-3, DeAryan, p. 8, Dowell, pp. 2-3;

(2) Alleged dangers to health, Alkire, p. 8, Paduano, p. 3, Schur-

inga, pp. 2-3;

(3) Alleged want of power to act against non-contagious dis-

ease, Alkire, p. 8, Paduano, p. 3, Dowell, pp. 2-3;

(4) Alleged lock of power because of absence of a public emer-

gency endangering health, Alkire, p. 8, Paduano, p. 4, Schuringa,

pp. 2-3, Dowell, pp. 2-3.

(5) Alleged availability of other methods of protecting teeth,

Alkire, pp. 8, 9; Paduano, p. 3.

8

living in the community . . . [T]here is no standing to

claim that the inherent privacy rights of individuals are

violated by a statute, unless and until the statute is about

to be enforced against an individual or group of indi-

viduals who expressly protest.“

Brainerd, seeking to somehow create grounds on which to

distinguish its case from the unbroken line of decisions re-

jecting the relief they want, refers to the so-called “Brainerd

convention.” This meeting was allegedly a protest of the people

which somehow gives Brainerd a special standing to present

an issue not heretofore considered by this Court. The conten-

tion should be to no avail as the “convention” has no legal sig-

nificance. In the privacy cases previously decided by this

Court, the individual plaintiffs did not have to call a constitu-

tional convention to protest the law in question in order to gain

standing to challenge the law in court. The filing of a suit in

itself constitutes the protest.

B. A substantial federal question is not raised by the Minne-

sota Supreme Court taking judicial notice of scientific

data demonstrating the benefits and safety of water

fluoridation.

Brainerd asserts that the Minnesota Supreme Court took

judicial notice of, scientific evidence demonstrating the safety

and benefits of fluoridation while at the same time ignoring

evidence to the contrary. Brainerd goes on to refer and even

delineate much of this anti-fluoridation evidence in its Juris-

dictional Statement.'* It is plain that Brainerd, through ex-

traordinary use of facts outside the record, is asking the Court

12 J.S. at 12, 13.

18 J.S. at 5, 17-24.

ee .-. ee

9

to perform a legislative function to decide between two com-

peting philosophical beliefs and sets of data.

The question of inconsistent scientific evidence should not

be resolved in the United States Supreme Court. Jacobson v.

Massachusetts, 197 U.S. 11 (1905); Viemeister v. White, 179

N.Y. 235, 72 N.E. 97 (1904).

. . . The appellant claims that vaccination does not tend

to prevent smallpox, but tends to bring about other

diseases, and that it does much harm, with no good.

It must be conceded that some laymen, both learned

and unlearned, and some physicians of great skill and re-

pute, do not believe that vaccination is a preventive of

smallpox. The common belief, however, is that it has a

decided tendency to prevent the spread of this fearful

disease and to render it less dangerous te those who con-

tract it. While not accepted by all, it is accepted by the

mass of the people, as well as by most members of the

medical profession

A common belief, like common knowledge, does not re-

quire evidence to establish its existence, but may be acted

upon without proof by the legislature and the courts. . . .

The fact that the belief is not universal is not control-

ling, for there is scarcely any belief that is accepted by

everyone. The possibility that the belief may be wrong,

and that science may yet show it to be wrong, is not con-

clusive; for the legislature has the right to pass laws

which, according to the common belief of the people, are

adapted to prevent the spread of contagious diseases. In

14 While the Board is aware of the existence of the data presented by

Brainerd which it uses to support its position that fluoridation may

be hafmful, the Board denies its validity. Further, the great weight

of medical opinion continues to grow in support of the benefits

and safety of this proven public hea!th measure.

10

a free country, where the government is by the people,

through their chosen representatives, practical legislation

admits of no other standard of action; for what the

people believe is for the common welfare must be accepted

as tending to promote the common welfare, whether it

does in fact or not. Any other basis would conflict with

the spirit of the Constitution, and would sanction mea-

sures opposed to a republican form of government.

Jacobson v. Massachusetts, supra, at 34, 35 (emphasis added).

This Court has unequivocally held that a court may take

judicial notice of a common knowledge or belief, such as here,

that fluoridation is beneficial] to prevent dental caries and thus

is a significantly important public health measure. The exis-

tence of those in society who hold a contrary opinion with re-

spect to the benefit of fluoridation does not change this rule.

It only establishes the fluoridation question as one to be deter-

mined legislatively, not judicially. The judicial notice question

raised by Brainerd is not substantial nor is it even a federal

question. It does not provide a basis for this Court to take

jurisdiction of this case.

C. Prior decisions of this court support the conclusion that

fluoridation does not violate the right to personal privacy.

Brainerd contends that the fluoridation law violates an in-

herent constitutional right of the people to privacy, health,

freedom, and bodily integrity. As has been noted, supra at 7-8,

this Court has rejected the claim that fluoridation violates

these rights. That action is entirely consistent with the deci-

sions of this Court, including those issued since the initial

enunciation of the modern right to privacy doctrine in Gris-

wold v. Connecticut, 381 U.S. 479 (1965).

11

In Griswold, supra, this Court declared unconstitutional

a Connecticut state law which forbid the use of and the giving

of advice with respect to the use of contraceptives. The statute

was found to violate the right of “privacy and repose” which

emanated from the penumbra of the Bill of Rights. In so doing,

this Court did not deciare that every law which intruded on

an individual’s life was invalid. Indeed, even the Griswold

Court admitted that it was not a legislative body responsible

for determining the wisdom, need, and propriety of laws that

touch economic problems, business affairs, or social conditions.

Id. at 482. The Connecticut law, however, went beyond these

legitimate areas of state concern and intruded into the sacred

relationship of marriage.

Since Griswold this Court has continued to carve out a right

of autonomy for the individual but in very limited areas all

involving personal decisions which do not directly affect the

public.!“ Thus, the right of privacy that exists under the

Fourteenth Amendment includes:

“only personal rights that can be deemed ‘fundamental’

or ‘implicit in the concept of ordered liberty.’ Palko v.

Connecticut, 302 U.S. 319, 325 (1937) ;” Roe v. Wade, 410

U.S. 113, 152 (1973). This privacy right encompasses and

protects the personal intimacies of the home, the family,

marriage, motherhood, procreation, and child rearing.

cf. Eisenstadt v. Baird, 405 U.S. 438, 453-454 (1972);...

Stanley v. Georgia, . . . [894 U.S. 557 (1969)]; Loving v.

Virginia, 388 U.S. 1, 12 (1967) ; Griswold v. Connecticut,

. . . [881 U.S. 479 (1965)]; Prince v. Massachusetts, 321

U.S. 158, 166 (1944) ; Skinner v. Oklahoma, 316 U.S. 535,

541 (1942) ; Pierce v. Society of Sisters, 268 U.S. 510, 535

15 Compare Stanley v. Georgia, 394 U.S. 557 (1969), with Paris Adult

Theatre I v. Slaton, 413 U.S. 49 (1973).

12

(1925); and Meyer v. Nebraska, 262 U.S. 390, 399

(1923).

Paris Adult Theatre v. Slaton, 413 U.S. 49, 65, 66 (1973).

What Brainerd ignores is that most aspects of a person’s

life do not involve fundamental personal rights. In these in-

stances the individual’s liberty is subject to the police power

of government, with presumptions of statutory validity and

a heavy burden placed on that person who claims that a regula-

tion has no conceivable public purpose or that there is no

rational relation between means and ends. One such area

where an individual must conform to the declarations of gov-

ernment and where no fundamental rights are involved is in

public health measures. Fundamental to a strong and viable

nation is a healthy people. In recognition, this Court has long

preserved the right of state legislatures to enact reasonable

laws to protect the public health, even if they do intrude upon

an individual’s bodily integrity. As stated in Breithaupt v.

Abram, 352 U.S. 432, 439 (1957): “As against the right of

an individual that his person be held inviolable . . . must be

set the interests of society. Thus in Schmerber v. Cali-

fornia, 384 U.S. 757 (1966), a case involving a governmental

intrusion into an individual’s body for blood to be analyzed

16The areas protected in these cases are marriage, contraception,

miscegenation, sterilization, family relations, possession of obscene

materials in one’s own home, child rearing, and education.

17 See also Roe v. Wade, 410 U.S. 113, 154 (1973) where the Court

concluded that the right of personal privacy “. . is not unqual-

ified and must be considered against important state interests in

regulation.” The cases cited by Brainerd are inapposite. For ex-

ample, Breese v. Smith, 501 P.2d 159 (Alas. 1972), and Ravin v.

State of Alaska, 537 P.2d 494 (Alas. 1975) were both decided under

provisions of the Alaska constitution, not the United States con-

stitution. Union Pacific Railway Comp. v. Botsford, 141 U.S. 250

(1891), and Mohr v. Williams, 95 Minn. 265, 101 N.W. 12 (1905) do

not involve the validity of state public health regulation but in-

stead deal with rights between private parties.

13

for alcohol content, this Court concluded that the constitution

does not protect an individual “against all intrusions,” but

only “against intrusions which are not justified in the circum-

stances, or which are made in an improper manner.” Id. at

768.

Other declarations of the Court are entirely consistent with

these more recent statements. In Jacobson v. Massachusetts,

197 U.S. 11 (1905), this Court upheld a compulsory vaccina-

tion law against the charge that it was

unreasonable, arbitrary and oppressive, and, therefore,

hostile to the inherent right of every freeman to care for

his own body and health in such way as to him seems best;

and that the execution of such a law against one who ob-

jects to vaccination, no matter for what reason, is nothing

short of an assault upon his person.

197 U.S. at 26. In response thereto, this Court stated:

... [T]he liberty secured by the Constitution of the

United States to every person within its jurisdiction does

not impart an absolute right in each person to be, at all

times and in all circumstances, wholly freed from re-

straint. There are manifold restraints to which every per-

son is necessarily subject for the common good. On any

other basis organized society could not exist with safety

to its members. Society based on the rule that each one

is a law unto himself would soon be confronted with dis-

order and anarchy. Real liberty for ali could not exist

under the operation of a principle which recognizes the

right of each individual person to use his own, whether

in respect of his person or his property, regardless of the

injury that may be done to others. This court has more

than once recognized it as a fundamental principle that

14

‘persons and property are subjected to all kinds of re-

straints and burdens, in order to secure the general com-

fort, health, and prosperity of the State: of the perfect

right of the legislature to do which no question ever was,

or upon acknowledged general principles ever can be

made, so far as natural persons are concerned.’ [Citations

omitted.] In Crowley v. Christensen, 187 U.S. 86, 89, we

said: ‘The possession and enjoyment of all rights are sub-

ject to such reasonable conditions as may be deemed by

the governing authority of the country essential to the

safety, health, peace, good order and morals of the com-

munity. Even liberty itself, the greatest of all rights, is

not unrestricted license to act according to one’s own will.

197 U.S. at 26, 271 (emphasis added).

As is clear from the above discussion, there is no conflict

in the opinions of this Court. There exists a constitutional

right of privacy or personal autonomy which is operative only

when government attempts to intrude into areas of an indi-

vidual’s life which are uniquely personal and nonpublic. How-

ever, even here the right is not absolute and the government

may regulate those aspects of life if compelling reasons exist.

There are, in addition, other areas of an individual's life which

may be subordinated to the interests of government for the

public good. In these instances the right of privacy is not even

in issue, and the only alid question is whether government

has properly exercised its police power. Laws, such as Min-

nesota’s fluoridation law, enacted in furtherance of the public

health on the basis that fluoride will materially reduce the in-

18. cobson is still good law. Roe v. Wade, supra at 154; Eisenstadt

v. Baird, 405 U.S. 438, 454 (1972).

15

cidence of dental decay, an acknowledged serious health prob-

lem, fall into this latter category. The decision of the Minne-

sota Supreme Court in the instant action, being totally consis-

tent with this Court’s prior decisions, raises no issues to justi-

fy this Court noting jurisdiction of the case.

CONCLUSION

For the foregoing reasons, the Board urges this Court to

affirm the decision of the Minnesota Supreme Court, or in the

alternative, to dismiss Brainerd’s appeal for want of a sub-

stantial federal question.

Respectfully submitted,

WARREN SPANNAUS

Attorney General

RICHARD B. ALLYN

Solicitor General

RICHARD A. WEXLER

Assistant Attorney General

232 Minnesota Health Dept.

Building

717 Delaware Street Southeast

Minneapolis, Minnesota 55440

Telephone: (612) 296-5370

Attorneys for Appellee