Most states have statutes criminalizing consensual incest, which is sexual intercourse between family members who cannot legally marry. If an individual attacks a consensual incest statute as unconstitutional under the right to privacy, the court will balance the state’s interest in preventing harm to an infant, such as birth defects, with an individual’s interest in having consensual sexual intercourse with a family member, using strict scrutiny. If the court finds that the government interest is compelling, it can uphold the statute as long as it is not vague or overbroad.
KEY TAKEAWAYS
- The constitutional amendments supporting the right to privacy are the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.
- The right to privacy in the Constitution protects an individual’s right to use contraceptives, to receive an abortion through the first trimester, and to engage in consensual sexual relations.
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. A state statute prohibits inmates in state prison from engaging in consensual sodomy. An inmate is prosecuted under the statute. How will a court determine whether this statute is constitutional? Read the statute on which this exercise is based: California Penal Code § 286(e), http://law.onecle.com/california/penal/286.html
2. Read Planned Parenthoodv. Casey, 505 U.S. 833 (1992). In Casey, Pennsylvania modified its abortion statute to include a twenty-four-hour waiting period and informed consent for minors. Did the US Supreme Court uphold the Pennsylvania abortion statute? The case is available at this link: http://www.law.cornell.edu/supct/html/91-744.ZS.html
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