Learning Objectives:    

Given background materials (or access to the INTERNET), the student will gain information about the selected case, Renee B. v. AHCA, scheduled for oral argument and to be broadcast on the Florida Distance Learning Network before the Supreme Court of Florida.                              

Based on background materials (or access to the INTERNET), the student will be exposed to the constitutional and legal concepts surrounding the Florida Constitution and its provisions concerning privacy and equal protection.                                

Based on the selected case, the student will learn the technical steps necessary to conduct various INTERNET searches on various topics.

Suggested Learning Activities:

1.  Assign students to conduct an INTERNET search on the privacy clause of the Florida Constitution.

        Suggested site:  On-Line Sunshine

A.  Advise students that right of privacy in the Florida Constitution is an explicit right of privacy, as compared to the right of privacy found in the United States Constitution, which is an implicit right of privacy.  What is the difference?  

B.  The right of privacy in the United States Constitution was first recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965).  The Court said that right could be found in the Bill of Rights, which created certain “zones of privacy.”  Eight years later, in Roe v. Wade, 410 U.S. 113, 153 (1972), the Court clarified that the right of privacy was founded in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.”  The Court stated that only “fundamental” personal rights were included in the right of privacy.  The Court gave five examples of fundamental personal rights:  marriage, procreation, contraception, family relationships, and child rearing and education.  Regulation of these rights can only be justified by a compelling state interest.  

C.  The right of privacy in Florida was adopted by Florida voters in 1980.  Why do you think Floridians wanted an explicit right of privacy in the constitution?  Do you think the explicit right of privacy found in Florida’s Constitution offers more privacy protection than the implicit right of privacy in the U.S. Constitution?  In Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544, 548 (Fla. 1985), the Florida Supreme Court stated:

    The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution.  This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy.  Article I, section 23, was intentionally phrased in strong terms.  The drafters of the amendment rejected the use of the words "unreasonable" or "unwarranted" before the phrase "governmental intrusion" in order to make the privacy right as strong as possible.  Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.

2. Ask students to think of some situations where either the federal or state right of privacy might be implicated.  

A.  The United States Supreme Court has determined that a federal right of privacy exists in the following situations:

 1.  Abortion–In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court held that a woman’s decision to terminate her pregnancy with an abortion was protected by the federal constitutional right of privacy. The Court stated that this right was not absolute and the right can be limited if there is a compelling state interest.  

2.  Use of contraceptives– In Griswold v. Connecticut, 381 U.S. 479 (1965), the United States Supreme Court held that a married couple’s use of contraceptive devices was protected by the federal constitutional right of privacy, despite a state law which prohibited the use of birth control. Seven years later, in Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court invalidated a state law prohibiting the distribution of contraceptives to persons who were not married.  

B.  However, the United States Supreme Court has refused to recognize a federal right of privacy in the following situations:

 1.  Parental consent for abortions–In Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476 (1983), the United States Supreme Court upheld a state law requiring a minor seeking an abortion to receive the consent of one of her parents or, alternatively, to obtain consent from a juvenile court judge.

2.  Physician-assisted suicide–In Washington v. Glucksberg, 521 U.S. 702 (1997), the United States Supreme Court upheld a Washington statute that prohibited assisted suicide.  The Court rejected the notion that the right to privacy protected assisted suicide.

C.  The Florida Supreme Court has determined that a state right of privacy exists in the following situations:

1. Grandparent visitation–Florida has a grandparent visitation statute which grants authority to a trial court to award grandparental visitation rights to a minor child in some circumstances.  A number of parents have challenged the statute as violating their (the parents’) right of privacy under the Florida Constitution.  In a series of cases, the Florida Supreme Court has struck down different sections of Florida’s grandparent visitation statute as violating the right of privacy under the Florida Constitution.  See Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996); Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998); Saul v. Brunetti, 753 So. 2d 26 (Fla. 2000).

2.  Parental consent for abortions–In In re T.W., 551 So. 2d 1186 (Fla. 1989), the Florida Supreme Court struck down Florida’s parental consent statute.  The Court noted that although the federal constitution applied a relaxed standard in assessing the validity of parental consent statutes (significant state interest), the explicit right of privacy found in Florida’s Constitution required a compelling state interest.  The Court concluded that Florida’s statute failed to meet this heightened standard.

3.  Right to refuse medical treatment–In a series of cases, the Florida Supreme Court has held that Florida’s right of privacy includes a person’s right to refuse medical treatment.  See Public Health Trust v. Wons, 541 So. 2d 96 (Fla. 1989); In re Browning, 568 So. 2d 4 (Fla. 1990); In re Dubreuil, 629 So. 2d 819 (Fla. 1993).

D.  However, the Florida Supreme Court has refused to recognize a state right of privacy in the following situations:

1. Physician-assisted suicide–In Krischer v. McIver, 697 So. 2d 97 (Fla. 1997), the Florida Supreme Court held that a Florida statute banning assisted suicide did not violate the right of privacy found in Florida’s Constitution.  Although the Court had previously held that Florida’s right of privacy permitted a person to refuse medical treatment, the Krischer court distinguished those previous decisions.  The  Court reasoned that suicide was not at issue in those previous decisions, because refusing medical treatment would result in a person’s death from natural causes.

2  Right to purchase obscene materials–In Stall v. State, 570 So. 2d 257 (Fla. 1990), the Florida Supreme Court held that Florida’s obscenity statute did not violate the state right of privacy.  The Court acknowledged that the state right of privacy encompasses the right to possess obscene materials in the privacy of one’s home.  However, the Court rejected the Petitioners argument that Florida’s right of privacy should be interpreted to protect sellers of obscene material.  The Petitioners argued that without this interpretation, an individual’s right to posses such materials would be meaningless.  Nevertheless, the Court found that there is no reasonable expectation of privacy in being able to patronize retail establishments for the purpose of purchasing obscene material.

3.  Assign students to conduct an INTERNET search on the equal protection clause of the United States Constitution.

• Suggested site:  Findlaw.com

     The Equal Protection Clause guarantees that the law will treat similarly situated people the same.  For example, assume that a law in Gator state sets the tuition for state universities at $2000 a year for all state residents, unless the state resident is a Seminole fan, in which case the tuition is $4000.  All of the Seminole fans would have a potential equal protection claim, because state residents that are Seminole fans are being treated differently than state residents that are fans of the Gators, Hurricanes, or any other team.

     When an individual claims an equal protection violation, the individual must show that the person committing the violation is a government actor.  The United States Supreme Court has developed three standards for examining equal protection violations.  First, if the law discriminates based on race or national origin, then the Court uses the strict scrutiny test, and the law will be overturned unless the government can demonstrate a compelling interest for the law.  Laws based on race or national origin are almost always overturned.  Second, if the law discriminates based on gender, then the Court uses the intermediate scrutiny test, and the law will be upheld if the government can demonstrate that the law is substantially related to an important government interest.  Finally, if the law discriminates based on other factors, such as age, then the Court uses the rational basis test, and the law will be upheld if the government can demonstrate that the law has a rational relationship to a legitimate government interest.    

4.  Assign students to conduct an INTERNET search on the equal protection clause of the Florida Constitution.

• Suggested site: On-Line Sunshine

     Compare the language of the equal protection clause found in the federal constitution with the language of the equal protection clause found in the Florida Constitution.  What differences do you see?  Do you think Floridians are afforded greater equal protection rights as a result of the differences?  

     In 1998, Florida voters approved an amendment to article I, section 2 of the Florida Constitution which added the words “female and male alike” after the words “All natural persons.”  Pursuant to the amendment, article 1, section 2 now reads:  

                Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

     Do you think the new language means that Florida’s right of equal protection, specifically in the area of sex discrimination, is greater than the right of equal protection in the federal constitution?

5.  Assign students to conduct an INTERNET search on the Medicaid program.

• Suggested sites: Health Care Financing Administration, The Century Foundation

     Medicaid is a joint federal and state program that provides medical assistance to low income individuals and families.  The program was established in 1965.  

     Discuss the current status of the Medicaid program in this country.  Do you agree that the government should provide medical assistance for certain individuals and families with low incomes and resources?  Who should be entitled medical assistance?  What treatments and procedures should be covered?

Consider the following hypothetical:

John Doe is eligible for Medicaid.  John recently found out that he has a rare form of cancer.  Without treatment, John will die in a year.  However, doctors recently discovered an experimental treatment that, in some patients, completely cures the type of cancer that John has.  The treatment costs thousands of dollars per month.  Further, the treatments is only successful 10% of the time.  Should Medicaid pay for the treatment?  Would your answer be different if the treatment was successful 50% of the time?  What about 95%?  What if the treatment was inexpensive but still was only successful 10% of the time?

6.  Under the current Medicaid system, the federal government requires the states to provide certain mandatory categories of services.  The states have the option to provide additional services.  The federal government only requires a state to provide an abortion if the pregnancy is the result of rape or incest or if the procedure is necessary to save the woman’s life.  Therefore, while Florida has the option to provide abortions in other situations, it is only required to provide an abortion if the pregnancy is the result of rape or incest or if the procedure is necessary to save the woman’s life.  Should Florida choose to provide abortions to Medicaid eligible women in other situations?

     Ask the students to read the hypothetical case.  Obviously, only women can get pregnant and, therefore, it is the woman who must request an abortion if one is desired.  Do you see any equal protection problems with Florida’s refusal to allow for a procedure that only affects one sex?  Putting modern technology aside, a pregnancy can only be achieved with a man and a woman.  Arguably, if neither the man or the woman wants the child, and if an abortion is not available, the woman is burdened more by the pregnancy than the man.  Is this fair? (think of arguments as to why it is fair and why it is not fair)  Can you think of other medical procedures that are only performed on one sex?