## Facts

- “Jane Roe II,” proceeding under a pseudonym, previously worked for an escort service and engaged in consensual sexual activity for hire.
- Roe asserted she wanted to return to prostitution but refrained because she feared prosecution under Florida law.
- Roe sued Robert Butterworth, Florida’s Attorney General, in his official capacity, seeking declaratory and injunctive relief barring enforcement of Florida’s prostitution laws.
- Roe challenged Chapter 796 of the Florida Statutes, focusing on Fla. Stat. § 796.07’s prohibition of prostitution—defined as “the giving or receiving of the body for sexual activity for hire” (excluding sex between spouses).
- Roe framed her claim as one of substantive due process privacy, arguing that the Constitution protects personal autonomy over one’s body and reproductive organs and that this protection extends to consensual adult sexual activity even when money is exchanged.
- The case came to the district court on Roe’s motion for summary judgment and the Attorney General’s cross-motion; the parties agreed there were no material factual disputes and that the questions were legal.

## Issues

1. Whether the Fifth and Fourteenth Amendments’ substantive due process “right to privacy” includes a fundamental liberty interest in engaging in consensual adult prostitution (sexual activity for compensation).
2. If no fundamental right is implicated, whether Florida’s prohibition of prostitution in Chapter 796 fails rational-basis review.

## Decision

- The court denied Roe’s motion for summary judgment and granted the Attorney General’s cross-motion.
- The court held that engaging in prostitution is not a fundamental constitutional right protected by substantive due process privacy.
- Applying rational-basis review, the court upheld Chapter 796 as constitutional because it is reasonably related to legitimate state interests, including public health, safety, and morality-related concerns, and the reduction of exploitation and crime associated with prostitution.
- On appeal, the Eleventh Circuit affirmed per curiam for the reasons stated in the district court’s published opinion. See *Roe v. Butterworth*, 129 F.3d 1221 (11th Cir. 1997).

## Legal Principles

- Substantive due process protects only certain fundamental liberties; courts recognize such rights cautiously and generally require that the claimed right be deeply rooted in the Nation’s history and tradition.
- The privacy decisions involving marriage, contraception, procreation, and abortion do not establish a general constitutional right to engage in all private consensual sexual conduct, particularly when the conduct is commercial.
- Longstanding and widespread criminalization of prostitution weighs strongly against characterizing prostitution as a fundamental right.
- When no fundamental right is involved, a statute is valid under rational-basis review if there is any reasonably conceivable set of facts showing a rational relationship to a legitimate governmental interest.
- States may regulate commercial sex differently from noncommercial intimate conduct, and legislatures may act to address perceived links between prostitution and harms such as exploitation, sexually transmitted diseases, and related criminal activity.

## Conclusion

In *Roe v. Butterworth*, the Southern District of Florida rejected a substantive due process privacy challenge to Florida’s prostitution statutes, holding that consensual sexual activity for hire is not a fundamental right and that Florida’s prohibition survives rational-basis review because it is reasonably related to legitimate state interests; the Eleventh Circuit affirmed on the same reasoning.


Roe v. Butterworth, 958 F.Supp. 1569 (1997)