norml17 - Page 16
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As noted in the _ case itself, the state co_fitufion's guarantee of
privacy in article 1, §7, grants greater protection from intrusion by the
government than the fourth amendment of the federal constitution° Though
often referred to as "parallel" provisions, and both having led to volurvfinous
analysis of search and seizure law, as noted by a leading scholar on the
subject, they have exacdy five words in common: "no," %e," "in," "or," and
The federal constitution's fight to privacy invoMng health and medical
matters was found in a "penumbra" emanating from the specific guarantees of
the first_ fourti_, fifth, ninth and fourteenth arnendmentso 5_ Even before the
delineation of greater privacy protection under state constitutional analysis in
in I986, Washington's courts developed a history of affording a
large measure of privacy in medicalfnealth matters, including the right to
dieJ 9 and the right of a minor to an abortion without notification or consent of
others. _o In a case dealing with anti-abortion picketing rights, decided in the
same month as D.LmwNjL the court noted that "The right of privacy dictates
protection of... the physician's right to freely practice medicine and pegorm
legal abortions without coercive outside restraints. °_6_
The flaw with ,Ms legal attack is obvious: The right of privacy protects
the relationship between a physician and patient in performing !ega!
procedures. Possession of marijuana is illegal by stamteo Thus, m prevail, a
plaintiff would first have m reach "legality" of the use of the drug for
therapeutic purposes. The right of privacy would then be moot.
B. ProhibitiQ____gNLgg cruel punishment.
The eighth amendment of the federal constitution prohibits "cruel and
unusual" p unishrnent. Article I, § 14 of the Washington constitution states
that "creel punishment" shall not be inflicted. The Supreme Court of
Washington has held that the state's provision provides broader protection
than the U°So Supreme Court has provided under the federal constitution's
57 George Nock, "Seizing Opportunity, Searching for Theory; Article L Section 7J' 8 U. Puget Sound L.
Rev. 33t (1985).
5_ " v " 381 U.S. 479, 484 (1965), N._.su_.Vade, 4t0 U.S. 1!3 (1973).
59 I__,_.¢_._J.Z¢£, 99 Wn.2d tt4, 660 P.2d 738 (1983)o
60 Siale_v_, Keome, 84 Wn.2d 901,530 Po2d 260 (1975).
6_ _Le. li_g.x.S.ham, 106 Wn.2d 212, 227, 72i P.2d 918 (1986).
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