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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Affirm
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 803

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0260%3A2. Public record. Not legal advice.