[Cite as Planned Parenthood v. Casey, 505 U.S. 833, 848-849 (1992). Note: This decision regards a Pennsylvania law restricting abortion. The Court's opinion quotes Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U.S. at 542-543 (1961) enumerating the right to bear arms among other rights in the first eight amendments--that the fourteenth amendment covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the Constitution," such as "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures.". (Pp. 848-849 this page.) This dissenting opinion gained ascendency in Griswold v. Connecticut, 381 U.S. 479, 488 (1965) where a concurring opinion made repeated reference to the first eight amendments in terms of "fundamental rights" (Griswold at 488, 490, 491, 492 (citing Poe)). As David Kopel notes, "It is impossible to read Justice Harlan's words as anything other than a recognition that the Second Amendment protects the right of individual Americans to possess firearms. Obviously, the Due Process Clause of the Fourteenth Amendment protects a right of individuals against government; it does not protect government, nor is it some kind of collective right. It is notable that Justice Harlan felt no need to defend or elaborate his position that the Second Amendment guaranteed an individual right." (Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56 Maryland L. Rev. 438, 540 (1997)) See also Dred Scott v. Sandford, 60 U.S. 393, 417, 450-451 (1857); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897), and United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Another interesting quote is Justice Scalia's parody of the phrase "power corrupts, and absolute power corrupts absolutely" when he chided the majority opinion by noting: "no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.'" (P. 981]
[Planned Parenthood v. Casey continued
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[paragraph continued from previous page] in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94-99 (1987); in Carey v. Population Services International, 431 U.S. 678, 684-686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481-482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id. at 486-488 (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on due process), id. at 500-502 (Harlan, J., concurring in judgment) (same), id. at 502-507, (White, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399-403 (1923).
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. (p.849)Ullman, supra, at 543 (dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494 U.S. 210, 221-222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. [paragraph continues next page]
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