Note: This hypothetical builds
upon that of John Roe v. State of Columbiana presented in GVPT432. The
structure of the material below and certain phrases are taken therefrom. This hypothetical focuses on contraception,
an area specifically excluded from consideration in John Roe as noted “The Court is not addressing the
birth control issue” therein.
This hypothetical specifically excludes from consideration the equal
protection issue(s) regarding single-sex education; those considerations would
be a distinct hypothetical assignment which could issue directly from the text
below.
During each decade since 1950, the reproduction rate of the citizens of Columbiana has fallen from more than three live births per woman to less than 1.8 live births per woman. The number of lives births required to maintain a stable population is 2.1 per woman. The most recent year in which the citizens of Columbiana exceed replacement rate as 1972, more than 50 years ago.
Columbiana's ban on abortion but for cases of incest, rape, and preservation of maternal health, did not stem the tide of the decline in Columbiana's reproductive rate. Alternative methods of maintaining population have not addressed the issue. Columbiana's efforts to increase immigration into the State from abroad have been stymied by the re-invigoration of the 1924 Johnson-Reed Act establishing national quotas for immigration, combined with the deployment of active duty service personnel along the southern border charged with preventing illegal crossings of the border "through all means at your disposal." Attempts to simulate inter-state migration into Columbiana have produced meager results despite the substantial taxpayer funds expended. Various studies have concluded that the estimated of expenditure of one hundred thousand dollars ($100,000) per migrant. As a result, Columbiana has abandoned it's "Columbiana is for Lovers" campaign. Seemingly out of options, the State of Columbiana has despaired of ensuring its own survival. Given these national immigration policies, for Columbiana, the Constitution has become a suicide pact. (Terminiello v. Chicago (1949)).
In the recent off-cycle election The Columbiana Christian Conservative Party’s
(CCCP) election campaign focused on the theme "The State of Columbiana is Dying"
claiming that without a substantial, sustained increase in the reproduction
rate of the citizens of Columbiana, the state will be confronted with a
population that is both growing smaller in numbers and older in age. While the
reasons for the decline in reproductive rate are disputed, the effect of the
ongoing demographic change is not. Per the CCCP: Columbiana must act to
secure the future of the State!
The CCCP's campaign resonated with the voters of Columbiana resulting in the CCCP obtaining a majority in both the upper and lower houses of the state legislature and the governorship. The CCCP swung into action. Werner Kindermacher of the CCCP, newly elected Speaker of the House of the legislature of the State of Columbiana, immediately brought to the floor of the House, a bill outlawing the manufacture, distribution, sale, and possession of contraceptives. That same day, a duplicate bill was brought to the floor of the State Senate by Senate Majority leader (CCCP) Philippa Popham. The minority party, sought to prevent the bill's passage by adding a "poison pill amendment” which contained the following provisions: 1. to enact a universal basic income prorated per child via a negative income tax; 2. to fund immediate construction and staffing of two boarding schools, one for boys and one for girls, for infants through high school modeled on the Milton Hershey School but focused on STEM and The Great Books Program for those children whose parents or un-wed mothers that decide to place the children in these schools; 3. that the two schools be located ten miles apart have identical facilities manned by the same staff (each staff member will teach one half day in each school, switch at noon to the other school and teach the same classes again. After winter break, the staff that taught in the mornings at the boys school will teach mornings in the girls school.) and 4. that declares single mothers to be a protected class regarding the Equal Protection Clause of the Fourteenth Amendment.
Little did the minority realize the strength of the progressive wing of the CCCP. Declaring that "Pro-Life Does Not End at Birth", the CCCP progressives allied with a portion of the minority party to pass the proposed bill, with its "poison pill" amendments, effectively outlawing the use of contraception and providing for Columbiana’s children despite the vociferous objections of the conservative wing of the CCCP and their cries of "Socialism! Communism! Atheism!". Caught between campaign promises and the demands of his new bride forty years younger, the governor immediately signed the bill and left for an extended fact-finding mission in Cancun, Mexico.
Jane and John Doe, parents of six children, living on his disabled veteran's benefits income, and being thirty-three years of age panicked. They turned to Jane's uncle, Thomas Louis Magliozzi, for advice. Mr. Magliozzi said "This is America, damn it! Sue the ....s!" And so they did, retaining the Park Avenue law firm Dewey, Chetham, & Howe, LLP to seek "a temporary injunction to prohibit implementation of the law and “a Motion for a Declaratory Injunction that the law was unconstitutional.” The motion and the injunction were granted by the Federal Court for the District of Columbiana.
On appeal, the State of Columbiana argued the State's compelling interest prompted the Act. Furthermore, the Act is aligned with the Nation's history and tradition of regulating the manufacturing, distribution, sale, and possession of contraceptives as evidenced by the “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” of 1873 (Comstock Act) which included "information about or devices or medications for “unlawful” abortion or contraception" among the items prohibited. And further evidenced by the 1909 legislation that expanded the scope of the Comstock Act.
The Court of Appeals for the Thirteenth Circuit agreed with the State of Columbiana, reversing the District Court. The Appeals Court ruled, that 1. the "right to privacy" basis of Griswold v. Connecticut is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.”; 2. that the Due Process Clause at most guarantees process; and 3. that substantive due process cases such as Griswold, and its progeny, are inherently suspect. (See Dobbs v. Jackson Women's Health Organization THOMAS J. concurring)
Jane and John Doe filed a petition for a writ of certiorari with the United States Supreme Court. The petition has been granted. The Court will consider the following questions only: whether the State of Columbiana's prohibition on the manufacture, distribution, sale, and possession of contraceptives violates the Constitution of the United States of America.
(Note: The Court is not addressing, at this time, the education and universal basic income portions of the Act. The portion of the Act establishing single-sex schools will be the subject of another hypothetical in this course.)