Full opinion text
MEMORANDUM OPINION SMITH, District Judge. The Alabama Legislature enacted an “Anti-Obscenity Enforcement Act” during the Regular Session of 1989. The Act subsequently was codified at Alabama Code §§ 13A-12-200.1 to -200.10 (1975) (1994 Replacement Volume). Nine years later, during the 1998 Regular Session, the Alabama Legislature amended various provisions of the Act through passage of Alabama Act No. 98-467. Among other changes wrought, section 6 of Act No. 98-467 extended Alabama Code § 13A-12-200.2 —which previously had applied only to the “distribution” of “obscene material” — so as to criminalize the distribution of “any device designed or marketed as primarily useful for the stimulation of human genital organs.... ” (a)(1) It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value. Material not otherwise obscene may be obscene under this section if the distribution of the material, the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica for the sake of prurient appeal. Any person who violates this subsection shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fíne of not more than ten thousand dollars ($10,000) and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than one year. A second or subsequent violation of this subdivision is a Class C felony if the second or subsequent violation occurs after a conviction has been obtained for a previous violation. Upon a second violation, a corporation or business entity shall be fined not less than ten thousand dollars ($10,000) nor more than fifty thousand dollars ($50,000). 1998 Ala. Acts 98-467, § 6, now codified at Alabama Code § 13A-12-200.2(a)(l) (Supp.1998) (emphasis added to language added by amendment). For convenience, this court shall hereafter refer to the statutory prohibition pertaining to “any device designed or marketed as primarily useful for the stimulation of human genital organs” in an abbreviated form, by the use of the phrase “sexual devices,” or sometimes “proscribed devices.” Six plaintiffs bring this action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of Alabama Code § 13A-12-200.2(a)(1), as thus amended. These plaintiffs may be bifurcated into discrete groups, each averring potential harm from enforcement of the challenged statute: (1) vendors of sexual devices (the “vendor plaintiffs”); and (2) persons who use such devices (the “user plaintiffs”). The first group includes plaintiffs Sherri Williams and B.J. Bailey. Williams is the principal shareholder of “Pleasures,” an Alabama corporation that owns and operates two retail stores located in Huntsville and Decatur, Alabama, respectively, both of which display and sell sexual devices and novelties. Bailey is the principal investor in “Saucy Lady, Incorporated,” an Alabama corporation selling sexual devices and novelties, including vibrators, lubricants, and oils, through in-home “ ‘Tupperware’ — style parties.” These vendor plaintiffs fear criminal prosecution under the subject statute, and seek injunctive relief barring enforcement of it. They also seek to bring suit on behalf of their customers, who allegedly are reluctant to come forward “because of the sensitive and intimately personal nature of the reasons for using the product[s].” (Complaint, Doc. No. 1, ¶ 18.) The second group of plaintiffs includes Betty Faye Haggermaker, Sherry Taylor-Williams, Alice Jean Cope, and Jane Doe. Each of these persons avers that she personally uses sexual devices either for therapeutic purposes related to sexual dysfunction, or as an alternative to sexual intercourse. (Id., ¶¶ 29-33.) All plaintiffs seek to enjoin Bill Pryor, the Attorney General of the State of Alabama, from enforcing Alabama Code § 13A-12-200.2(a)(l). They contend implementation of that statute will infringe upon their fundamental right to privacy and personal autonomy secured by the United States Constitution. Plaintiffs further argue that the challenged legislation does not bear a reasonable relationship to a proper legislative purpose. Plaintiffs initially sought a temporary restraining order, but formally withdrew that request on September 9, 1998, following an agreement among the parties stipulating that “the status quo would be maintained and the amendments not enforced with respect to plaintiffs’ [sic], pending the Court’s determination following a hearing on plaintiffs’ claims for preliminary injunc-tive relief.” (Plaintiffs’ request for expedited scheduling conference, Doc. No. 27, at ¶ 2). No state adjudication has occurred, and none is pending. The matter presently is before the court on plaintiffs’ motion for permanent injunctive relief. OUTLINE OF DISCUSSION I. STATEMENT OF UNDISPUTED FACTS A. The Vendor Plaintiffs 1. Sherri Williams and “Pleasures” 2. B. J. Bailey and “Saucy Lady, Incorporated” 3. Other vendors of sexual devices B. The User Plaintiffs 1. Betty Faye Haggermaker 2. Sherry Taylor-Williams 3. Alice Jean Cope 4. Jane Doe C. Relevant Provisions of Alabama Law D. Condoms, Virility Drugs, and Masturbation E. Recognized Therapeutic Uses of the Proscribed Devices 1. Federal Food and Drug Administration regulations 2. Booksellers, magazine publishers, gift shops, and Internet websites 3. Alfred Jack Turner, Ph.D. 4. Pepper Schwartz, Ph.D. II. ANALYSIS OF THE PARTIES’ CONTENTIONS A. Standing to Sue B. Framework of Analysis for Substantive Due Process Claims C. Does the Alabama Act Infringe on a Fundamental Right? 1. Background: fundamental rights generally 2. Plaintiffs’ assertion of a fundamental right 3. The Attorney General’s response 4. Decisions of other courts faced with this issue 5. Breadth of the fundamental right to privacy D. Rational Basis Review 1. Conceivable state interests 2. Are the interests legitimate? a.Banning public displays of obscene material b. Banning “the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation[,] or familial relationships” c. Banning commerce of obscene material 3.Is Alabama Code § 13A-12-200.2(a)(1) rationally related to these legitimate state interests? a. Banning public displays of obscene material b. Banning “the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation!,] or familial relationships” c. Banning commerce of obscene material (1) What can be classified as “obscene”? (2) What are the devices “designed or marketed as useful primarily for the stimulation of human genital organs”? (3) Are these devices obscene? III.CONCLUSION I. STATEMENT OF UNDISPUTED FACTS The stipulation of facts filed by the parties on December 3, 1998, is set forth in full immediately below. A. The Vendor Plaintiffs 1. Sherri Williams and “Pleasures” 1. Plaintiff Sherri Williams is a resident of Florida and the owner and operator of “Pleasures,” an Alabama corporation doing business in Alabama. “Pleasures” has two retail stores in Alabama, one located in Huntsville and one in Decatur. Sexual aids and novelties are displayed and sold at these locations. 2. The “Pleasures” store in Huntsville has been in operation since June, 1998. It is located on a main thoroughfare of Huntsville in a small shopping mall within a retail business district. It is adjacent to other retail stores which include an adult video store, a liquor store, a hair salon, a spa, an O’Charley’s restaurante,] and also a Wal-Mart Super Center just 150 feet to the rear. 3. The “Pleasures” store in Decatur has been in operation since February, 1996. It is located on a main thoroughfare of Decatur in a small shopping mall within a retail business district. It is adjacent to other retail stores, which include a Texaco, a chiropractor’s office, a pet grooming facility, a tanning salon, a printer, a specialty kite shop[,] and a women and children’s linen clothing store. 4. Both stores have brick storefronts with large display windows which commonly display lingerie, massage oils, adult games, hosiery, instructional videos, bath powders, aromatherapy candles, romance novels, etc. They also have standard wood signage on the glass front doors stating, “If offended by explicit sexuality, Please do not enter, You must be 21 years of age.” 5. The products in both stores are displayed openly in much the same way [that] products are displayed in a novelty store. 6. The product line in both stores is adult oriented and persons under the age of 21 are not permitted entry. 7. Both stores are strictly retail. There are no sexual performances or video shows. The only services offered are counseling on use of the product and the additional sale of cakes, chocolates, and similar foods and various types of coffee. 8. “Pleasures” does not purport to operate as or resemble an adult bookstore, although a limited number of adult oriented “soft porn” or “R” rated videos and magazines are sold. 9. The products sold at both stores include novelty products with an adult theme, and items that are marketed to facilitate sexual relations, such as condoms, lubricants, and vibrators. A complete inventory list of the productfs] available at “Pleasures” is attached. Some of the products sold may, Ms. Williams believes, be covered by the statute, which Ms. Williams believes may subject her, and/or her agents, to arrest and prosecution. 10. “Pleasures” offers a large variety of romance orientated products marketed simply as “Adventures in Romance.” The product line represents the intimate, private, and personal relations of the clientele. “Pleasures” promotes an extensive line of lingerie, exotic oils, lotions, and lubricants, gourmet chocolates, instructional video and reading materials, marital aids, vibrating and non-vibrating sexual aids. 11. There have been no arrests of Sherri Williams, or her agents, in connection with the operation of “Pleasures.” 12. The “Pleasures” store in Huntsville has approximately 14,960 customers annually. In 1997, approximately 22,440 items were sold, generating gross revenue of approximately $448,837.00. Through July 1,1998, approximately 10,-060 items were sold, generating gross revenue of approximately $201,314.00. 13. The “Pleasures” store in Decatur has approximately 5,600 customers annually. In 1997, approximately 8,455 items were sold, generating gross revenue of approximately $169,093.00. Through July 1, 1998, approximately 5,170 items were sold, generating gross revenue of approximately $103,438.00. 14. Customer interest in the products is vaiied. Many use these products to avoid the possibility of sexually transmitted diseases; while others use the products to better stimulate intimate relationships with partners; there are those who use the products to achieve sexual satisfaction not otherwise available to them; and some use these products for temporary or long-term sexual satisfaction when a partner is not otherwise available. Many of “Pleasures’” customers have even been referred to the store by therapists treating them for sexual dysfunction or marital problems. 2. B.J. Bailey and “Saucy Lady, Incorporated” 15. Plaintiff B.J. Bailey is a resident of the State of Alabama and the owner and operator of “Saucy Lady, Incorporated,” an Alabama corporation doing business in Alabama. “Saucy Lady, Incorporated,” conducts in-house “Tupperware”-style parties at which sexual aids and novelties are displayed and sold. 16. “Saucy Lady, Incorporated,” has been conducting parties throughout Alabama since 1995, and prior to incorporation since 1993. 17. “Saucy Lady” parties are conducted in the privacy of a host home and are marketed exclusively to adult women. Attendance is generated largely through word of mouth. No advertising is conducted. 18. In 1997, approximately 770 “Saucy Lady” parties were conducted throughout the [S]tate of Alabama. Through July 1,1998, approximately 380 parties were conducted. 19. “Saucy Lady” parties were conducted in the following counties in 1997-1998: Lauderdale; Lawrence; Limestone; Madison; Jackson; Franklin; Morgan; Marshall; Walker; and Shelby- 20. Attendance at “Saucy Lady” parties ranges from 3 to 35. Total attendance in 1997 was approximately 7,700. Total attendance in 1998 (through July 1st) was approximately 3,800. 21. At “Saucy Lady” parties, sexual paraphernalia, aids and novelties are sold. A list of the product line is attached. [Some of these products may, Ms. Bailey believes, be covered by the statute, which Ms. Bailey believes may subject her[,] and/or her agents, to arrest and prosecution.] 22. In 1997, approximately 10, 500 products were sold, generating revenue of approximately $160,000.00. In 1998, through July 1st, approximately 5,250 products were sold, generating revenue of approximately $80,000.00. 23. There have never been any arrests in connection with “Saucy Lady” parties. 24. “Saucy Lady, Incorporated,” does not advertise its business, which grows from referrals from parties. Ms. Bailey is invited into a host’s home, where she shares “romance-enhancing” information for an hour with the guests who attend the party. 25. Ms. Bailey is self-taught, and makes no claim to be a counselor of any kind. If Ms. Bailey becomes aware of extreme cases of sexual dysfunction, she refers them to a medical doctor and/or psychotherapist. She also refers women who report abuse to the local women’s shelter, Hope Place. Ms. Bailey describes her business as focused on ways to help couples make their marriage stronger through better communication, by understanding each other’s bodies[,] and by considering how their partner views their intimate relationship. 26. “Saucy Lady” customers include married, singlet,] and divorced adult women from 19 to 70 years of age (thus far), and of diverse religious, racial, and ethnic backgrounds, and varied professions and occupations. These women vary greatly in their level of sexual experience and knowledge. If called to testify, Ms. Bailey would testify that the majority of women who attend her parties have shared with her that they were either anorgasmic or had extreme difficulty reaching orgasm through sexual intercourse alone. Some of these customers have consulted a doctor or therapist about these issues. A great many customers have reported to Ms. Bailey that the products they purchased helped them to become orgasmic and greatly improved their marital and sexual relations. 27. If called to testify, Ms. Bailey would testify that many women have also shared with her that they wished to avoid sexual relations with others because of the risk of sexually transmitted diseases, prior negative relationships or other risks associated with developing an intimate relationship. Some women are unable to establish a relationship with another person, but still wish to be sexually active. These women often purchase sexual aids or devices so that they can achieve their personal sexual goals in this respect within the privacy of their homes without involving another person. 3. Other vendors of sexual devices 28. Until the adoption of section 13A-12-200.12 of the Alabama Code, the products sold by “Pleasures” and “Saucy Lady, Incorporated,” were available for sale within in the State. Sex boutiques specializing in romance enhancing products and novelties operate in virtually every major city in Alabama and cities throughout the United States. Moreover, the products are available through mail order catalogues and the Internet. B. The User Plaintiffs 1.Betty Faye Haggermaker 29. Plaintiff Betty Faye Haggermaker is a resident of the State of Alabama and a user of the types of devices which the new Alabama statute seeks to proscribe. Ms. Haggermaker is a 43 year-old married woman who uses the devices with her husband of twenty-five years, both to enhance their intimate relationship and to assist her in over-coming [sic] orgasmic difficulties. Ms. Hagger-maker is a customer of “Saucy Lady, Incorporated.” 30. During the second decade of Ms. Haggermaker’s marriage, including the time period after she had a partial hysterectomy, it was very difficult for her to achieve orgasm. She has now used for approximately the last four yearsf,] and continues to use[,] marital aids to improve her intimate relationship with her husband and to achieve orgasm. 2. Sherry Taylor-Williams 31. Plaintiff Sherry Taylor-Williams is a resident of Alabama and a user of the types of devices which the new Alabama statute seeks to proscribe. Ms. Taylor-Williams is a 48 year-old woman who has been divorced and is now single. Ms. Taylor-Williams first began using sexual devices on the advice of her medical doctor after experiencing five years of marital intimate relations without being able to achieve orgasm. Without such devices, Ms. Taylor-Williams is anorgasmic. Ms. Taylor-Williams is a customer of “Saucy Lady, Incorporated.” 3. Alice Jean Cope 32. Plaintiff Alice Jean Cope is a resident of Alabama and a user of the types of devices which the new Alabama statute seeks to proscribe. Ms. Cope is a 30 year-old married woman who uses the devices in her intimate relations with her husband. The marital aids have been used as a door to open communication by Mrs. Cope and her husband. Before beginning use of such sexual devices approximately one year ago, Ms. Cope was anorgasmic for approximately the last ten years, even though she was sexually active during that time period. Ms. Cope is a customer of “Saucy Lady, Incorporated.” 4. Jane Doe 33. Plaintiff Jane Doe is a resident of Alabama and a user of the types of devices which the new Alabama statute seeks to proscribe. Ms. Doe is a 50 year-old woman who is now single, but has previously been married and divorced. Ms. Doe began using sexual devices as a means to combat post-par-tum depression and to help her marital relationship. Her use of such devices was approved of and encouraged by her therapist. Using marital aids to reach orgasm improved Ms. Doe’s marital relationship and helped her to overcome depression. Ms. Doe currently uses the devices to avoid the possibility of contracting sexually transmitted diseases. Ms. Doe is a customer of “Saucy Lady, Incorporated.” C. Relevant Provisions of Alabama Law 34. Pursuant to section 18A-12-200.2 of the Alabama Code, it is unlawful to sell or otherwise distribute obscene material. This has been the law in Alabama since at least 1975. In 1998, this provision of Alabama’s criminal code was amended to prohibit the sale or distribution of any device designed or marketed primarily for the stimulation of human genital organs (“sexual aids,” “sexual devices” or “marital aids”). The law went into effect on July 1, 1998. Enforcement of the ban will make it a crime to sell or distribute any device designed or marketed as primarily useful for the stimulation of human genital organs for any thing of pecuniary value. The only way to obtain marital aids will be to purchase or otherwise obtain them in another state and bring the product back across state lines. Alternatively, a visiting friend or other person can bring them across state lines and provide them to Alabama residents, provided a sale is not involved. D. Condoms, Virility Drugs, and Masturbation 35. The text of the statute does not define sexual devices as obscene per se [,] or purport to regulate them on the grounds that they may be obscene as that term is defined in the statute. The statute simply declares that it is unlawful to sell, distributee,] or produce any devices designed or marketed as primarily useful for the stimulation of human genital organs for any thing of pecuniary value. The legislative basis or rationale for the enactment of the prohibition against the sale of sexual devices does not appear in the statute or in the statement of legislative findings. 36. Ribbed and tickler condoms are manufactured in Alabama and sold throughout the [S]tate as well as nationally. 37. Virility drugs, such as Viagra, are also available in Alabama. 38. The laws of the State of Alabama do not per se prosecute masturbation or other stimulation of the genitalia — even when performed with a sexual aid. It is only the sale of such devices that is proscribed. Note: This conduct may be unlawful if performed in conjunction with another illegal act, such as public lewdness, or molestation. E.Recognized Therapeutic Uses of the Proscribed Devices 39. The plaintiff “sellers” of the products in this case have customers with a wide variety of therapeutic needs. A number of purchases are by anor-gasmic women for which the use of a vibrator or similar device is the standard treatment recommended by therapists. Such a vibrator may or may not be penis shaped and may or may not be used for vaginal insertion. Because of the sensitive and intimately personal nature of the reasons for using the products, most users of the products are understandably reluctant to come forward and challenge this law. 40. Women who are anorgasmic have difficulty achieving orgasm through sexual intercourse, masturbation[,] or other stimulation of the genitalia. The inability to achieve orgasm through sexual intercourse is a recognized and treatable medical condition. In the opinion of some medical and psychological professionals, failure to treat the condition may not only jeopardize the women’s physical and physiological health, but may also destroy a marriage or relationship. For this reason, many married and unmarried couples seek out therapy or advice on how to treat this condition. 41. There are at least three reasons for use of a vibrator by anorgasmic women. First, some women may be less physiologically responsive than others. The vibrator is helpful for these women in the same manner as are the vibrators commonly used by physical therapists in the treatment of people with cerebral palsy. In treating cerebral palsy, the vibration has a specific effect on the sensory and motor enervation of the muscle. A vibrator is used in sex therapy to cause vibration to go through the pubic bone to the sensory endings called muscle spindles within the pelvic musculature. This helps lower the physiological threshold for initiating the spinal reflex. 42. The second reason for using a vibrator in dildo form is to lower a patient’s inhibitions and produce intense stimulation that is difficult or impossible to duplicate manually. This is especially helpful to women who have built up a history of nonorgasmic sexual experiences, which causes what is called orgasmic inhibition. 43. Another reason for use of a vibrator in dildo form, or a dildo alone, is for women who have relaxed pelvic muscles which cause the orgasmic response to be less intense than usual. These women are prescribed Kegel’s exercise, with a dildo or dildo-type vibrator inserted to provide resistance. This exercise is essential for women suffering urinary stress incontinence. Many women suffer varying degrees of incontinence at some point in their fives. The condition is often caused by the stretching of the pelvic ligaments during childbirth, which causes the bladder to prolapse. Kegel’s exercise, in which the cireumvaginal muscles are contracted and strengthened, is universally acknowledged as the most effective way of avoiding urinary stress incontinence, short of surgery. 1. Federal Food and Drug Administration regulations 44. The Food and Drug Administration has promulgated the following regulations concerning powered vaginal muscle stimulators and genital vibrators: § 884.[5940], Powered vaginal muscle stimulator for therapeutic use. (a) Identification. A powered vaginal muscle stimulator is an electrically powered device designed to stimulate directly the muscles of the vagina with pulsating electrical current. This device is intended and labeled for therapeutic use in increasing muscular tone and strength in the treatment of sexual dysfunction. This generic type of device does not include devices used to treat urinary incontinence. (b) Classification. Class III (pre-market approval). [....] § 884.5960. Genital vibrator for therapeutic use. (a) Identification. A genital vibrator for therapeutic use is an electrically operated device intended and labeled for therapeutic use in the treatment of sexual dysfunction or as an adjunct to Kegel’s exercise (tightening of the muscles of the pelvic floor to increase muscle tone). (b) Classification. Class II (performance standards). 21 C.F.R. §§ 884.[5940] & 884.5960 (1984) 45. Various studies estimate that 20% of all sexually active women have used a vibrator at some point during their fives. Therapists sometimes direct patients to adult stores to find suitable vibrators for therapy purposes. If vibrators and related products, such as oils and lubricant, were not readily available to the public, anorgasmic women who want to obtain such products would have to leave the [S]tate to do so or obtain them by other means. 46. Some of the plaintiff “users” of the products in this case are indeed anorgasmic and have purchased vibrators to treat their condition. Many customers of the plaintiff “sellers” in this case use sexual aids for these purposes as well. Some of these individuals have acted on the recommendation or approval of a therapist or medical doctor, while others may have acted on the recommendation of a husband, lover, friend, or popular literature freely available in the community. 47. A separate category of purchasers of the vibrators and other types of sexual devices covered by the challenged statutory provision are individuals for whom sexual intercourse may not be an option for a number of reasons, including a medical condition or physical handicap. Fear of contracting or spreading AIDS or another sexually transmitted disease is compelling grounds to avoid sexual intercourse, the availability of condoms notwithstanding. There are many individuals who would prefer to play it safe rather than risk their life with a one-night-stand. Many of the plaintiff “sellers” customers fall into this category. 48. Sexual intercourse may not be an option for other reasons as well. An individual may be unable or simply unwilling to find a spouse or take on a serious or casual lover. This may be the result of an individual’s physical appearance, personality, philosophy, or even the person’s age, particularly if it is advanced. Thus, in addition to the women who use vibrators as a therapeutic device, a number of the individual plaintiffs in this case simply use vibrators and other devices as an alternative to sexual intercourse. 49. This decision is a matter of preference or may be the only viable way of obtaining sexual gratification because of the unavailability of a spouse or lover. Many of the plaintiff “sellers’ ” customers fall into this category. 50.One of the “user” plaintiffs in this case uses a vibrator or dildo-type device as an alternative to sexual intercourse for one or more of the reasons set out in the preceding paragraph. 2. Booksellers, magazine publishers, gift shops, and Internet websites .51. Barnes and Noble bookstore is located on University Drive in Huntsville, Alabama. Waldenbooks bookstore and Spencer Gifts shop are both located in Madison Square Mall in Huntsville. The Wal-Mart department store and Whispers, an adult novelty shop, are also located on University Drive. Except for Whispers, which restricts admittance to persons over 21 years of age, all of these stores are open to the general public. 52. Barnes and Noble sells a number of books which describe the use of vibrators/sexual aids to assist women in achieving orgasm and to help generally in sexual relationships. The following books are available at Barnes and Noble: Becoming Orgasmic: A Sexual and Personal Growth Program for Women, Julia R. Heiman, Ph.D., and Joseph Lopiccolo, Ph.D., 1988, Prentice Hall Press[;] The Complete Guide to Women’s Health, 3rd Revised Edition, Bruce D. Shepard, M.D., F.A.C.O.G. and Carroll A. Shepard, R.N.[,] Ph.D., 1997, First Plume Printing[;] Healthy Sex, Dr. Miriam Stoppard, 1998, DK Publishing Book[;] The Kinsey Institute New Report on Sex: What You Must Know To Be Sexually Literate, June M. Reinisch, Ph.D.[,] with Ruth Beasleyf,] M.L.S., 1990, St. Martin’s Press[;] The New Good Vibrations Guide to Sex, Cathy Winks and Anne Semans, 1997, Cleis Press Inc.[;] Our Bodies, Ourselves for the Neiu Century, 1998, Boston Women’s Health Book Collective, 1998, Simon & Sehusterf;] Sex For One: The Joy of Selfloving, Betty Dodson, Ph.D., 1996, Three Rivers Plus[;] Sex Over JO, Saul H. Rosenthal, M.D., 1987, Tarcher/Putnam[;] Sexual Pleasure: Reaching New Heights of Sexual Arousal & Intimacy, Barbara Kessling, Ph.D., 1993, Hunter House, Inc.[;] A Woman’s Guide to Overcoming Sexual Fear & Pain, Aurelie Jones Goodwin, Ed.D.[,] and Marc E. Agro-nin, M.D., 1997, New Harbinger Publications, Inc. Excerpts from the above titles are attached to the affidavit of Amy Louise Herring as Exhibit “A”, submitted in support of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction. Each of these books describe and recommend the use of vibrators as a sexual aid. 53. Waldenbooks also has a variety of titles which discuss vibrators and their use in achieving orgasm and enhancing sexual relationships. The following books are available at Walden-books: Changing Positions: Women Speak Out On Sex And Desire, Joanne Marrow, Ph.D., 1997, Adams Media Corporation!;;] The Guide To Getting It On!: A New and Mostly Wonderful Book About Sex, Goofy Foot, 1996, The Goofy Foot Press[.] Attached to the affidavit of Amy Herring as Exhibit “B” are excerpts from those books. Those books describe and recommend the use of vibrators as a sexual aid. 54. Spencer Gifts offers for sale a number of vibrators from a variety of available products. Copies of portions of the exterior packaging of three of these items are included as Exhibit “C” in the affidavit of Ms. Herring. The packaging of each of those items indicates that the items are intended to be used in sexual activities. 55. Two of the books available in Huntsville’s bookstores, entitled Sex Over Forty and Becoming Orgasmic, described a commonly sold body massager and how it could be used to stimulate the human genitalia. A device meeting this description is located in the personal appliance section of Wal-Mart on University Drive. A copy of a portion of the exterior packaging of this product is attached to the affidavit of Ms. Herring as Exhibit “D”. Although nothing on the package suggests the use of the product for such stimulation, the instructions provided in Sex Over Forty and Becoming Orgasmic clearly indicate that this product may be used successfully for the stimulation of the human genital organs. 56. Numerous magazines available in Huntsville contain advertisements for sexual aids available by mail and/or articles about the use of sexual aids to achieve orgasm. The following magazines are sold locally: Complete Woman, June/ July 1998 (Obtained from B.J. Bailey on July 9, 1998) [;] Cosmopolitan, July 1998 (purchased at Barnes & Noble on July 9, 1998)[;] McCall’s, April 1998 (purchased at Barnes & Noble on July 9, 1998)[;] Redbook, July 1998 (purchased at Barnes & Noble on July 9, 1998)[;] Scientific American Presents Women’s Health, Quarterly, Display until August 31, 1998 (purchased at Barnes & Noble on July 9,1998)[;] Sex Life, # 4 (purchased at Barnes & Noble on July 9,1998)[.] Copies of ads and/or articles found therein are included as Exhibit “E” in the affidavit of Ms. Herring. 57. The Internet contains numerous web sites which featured the sale of sexual aids. The following sites are available: “Action Girl Toys,” http://www.girl-toys.com[;] “Acts of Love: Toys & -Video,” http://www.barelake.com/ cat2.html[;] “Condoms, etc.,” http://www.condom-setc.com[;] “Good Vibrations — Toys,” http://se-cure.goodvibes.com/cgi-bin/menu ... =PJFWPXSPZNFRSN CM &sub=toys&docs=index.html[;] “Kamma Sutra,” http://www.pleasure-play.com/shop.html[;] “Secret Toys,” http://www.secret-toys.com/sextoys/menu.html[;] “TOYBOX erotica,” http://www.toy-boxerotica.com/grstlc.htm[.] Excerpts from the sites are attached as Exhibit “F” in Ms. Herrings’s affidavit. 3. Alfred Jack Turner, Ph.D. 58. Dr. Alfred Jack Turner is a clinical psychologist in private practice in Huntsville, Alabama and an expert in the fields of clinical psychology and human sexuality. In the past, he has testified in that capacity. Dr. Turner is an expert for purposes of FRE 702 in the field of clinical psychology and the treatment of sexual disorders. The bases of his opinion and testimony comport with FRE 703. Dr. Turner has been in private practice since 1978. Before that, he was the Associate Director of the Huntsville-Madison County Mental Health Center from 1970 until 1978. Dr. Turner was a faculty member at Auburn University from 1964 until 1970, first as an Assistant Professor of Psychology (1964-1967) and later as an Associate Professor of Psychology (1967— 1970); serving also as a member of the University of Alabama in Huntsville. 59. Dr. Turner was a consultant for the National Aeronautics and Space Administration (“NASA”) in Huntsville from 1963 to 1975. He served as a member of the Alabama State Board of Examiners in Psychology from 1966 to 1972 and as a member of the Professional Advisory Board of the State (Alabama) Mental Health Association from 1967 to 1970. He was a consultant to the Alabama Mental Health Association (1963-1970), the OEO Programs in Lee and Macon Counties, Alabama (1966-1969), the Tuskegee Mental Health Clinic (1964-1969), the Veteran’s Administration Hospital, Tuskegee, Alabama (1964-1969; also Coordinator of Group Therapy from March, 1966), and the Jackson County, Morgan Countyf,] and Tri-County Mental Health Clinics (1962-1964). 60. Dr. Turner received his Ph.D. in Psychology from Florida State University in 1962. He served an Internship in Clinical Psychology at the University of Louisville during 1961-1962. He received the Bachelor of Science Degree in Physical Education from Auburn University (1954). He also pursued postgraduate studies in psychology at Emory University (1956-1957) and Auburn University (1957-1958). 61. Dr. Turner holds professional memberships in the American Psychological Association, the Southeastern Psychological Association, the Alabama Psychological Association (President 1967-1968, Chairman, Committee for Training and Salary Standards for Psychologists in Alabama and Committee on Insurance), the American Association of University Professors, Phi Delta Kappa, Phi Chi, and the Association for the Advancement of the Behavioral Therapist. Dr. Turner’s vita is attached hereto as an additional reference and also lists honors received and describes his dissertation and professional publications. 62. If called to testify, Dr. Turner would testify that in his practice in clinical psychology, he principally counsels patients who have experienced sexual dysfunction or other sexual problems. Many of his female patients have difficulty in achieving orgasm and, in some cases, have never achieved orgasm. Dr. Turner regularly recommends the use of sexual/marital aids such as vibrators to his patients to assist them in overcoming sexual dysfunction and other sexual problems. Reports from his female patients have indicated that sexual aids have helped them in achieving orgasm, sometimes after many years of frustration and difficulty in their sexual relationships. 63. If called to testify, Dr. Turner would testify that he also sometimes counsels older persons or disabled persons who are having difficulties with sexual expression. The use of sexual aids such as vibrators is also extremely helpful in these situations, especially when sexual intercourse is not possible due to physical limitations or lack of a partner. 64. If called to testify, Dr. Turner would testify that other situations in which he has recommended the use of sexual aids to aid in overcoming sexual difficulties have included persons who are not able to have a sexual partner due to fear of sexually transmitted diseases, emotional attachment!,] or other perceived dangers of sexual relationships, both real and imagined. He has counseled some patients who were unable to locate appropriate sex partners due to lack of physical attractiveness or obesity. Sexual aids have provided an appropriate outlet for sexual expression for these patients as well. 65. It is Dr. Turner’s professional opinion!,] based on his years of experience in sexual therapy and counseling, [that the] expression of sexuality, including the successful experience of orgasm, are important aspects of a person’s overall mental health. His professional opinion is that the sexual experience!,] culminating in sexual climax or orgasm!,] builds self-esteem and confidence, relieves stress!,] and has been clinically proven to generate and release hormones which aid in the achievement of an appropriate mental balance and positive outlook on life situations in general. In his practice, he has frequently seen sexual aids help in the revitalization of potentially failing marital relations as well. 4. Pepper Schwartz, Ph.D. 66. Dr. Pepper Schwartz is a Professor of Sociology at the University of Washington Department of Sociology in Seattle, Washington, where she has done research and taught classes since 1972. She is a nationally renowned expert in the field of human sexuality and has also testified on the subject on numerous occasions. Dr. Schwartz is an expert for purposes of FRE 702 in the field of human sexuality. The bases of her opinion comports with FRE 703. 67. Dr. Schwartz’s teaching has included courses on the contemporary family, the history of the family, gender and the family, gender and sexuality, the social organization of human sexuality, qualitative methodology!,] and other topics. At this university, Dr. Schwartz has also served on the executive, recruitment, admissions, and development committees of her department!,] and took a leave of absence to be a Special Assistant to the Provost for two years. 68. Dr. Schwartz received her Ph.D. from Yale University in 1974. She received a M.Phil. from that University in 1970, a M.A. from Washington University (in St. Louis) in 1968[,] and a B.A. from Washington University in 1967. 69. Dr. Schwartz was elected President of the Society for the Scientific Study of Sex, an international association of sex researchers, in 1992-93!,] after having served as President of the Western region of that organization in 1989-91. Among other national offices and services!] Dr. Schwartz has performed, she was elected to the Committee of Publications for the American Sociological Association 1995-98, appointed to the American Medical Association review committee on Human Papilloma Vi-ras Consensus Group in 1997[,] and the Yale Council Committee on the Social Sciences 1989-1993. 70. Dr. Schwartz is on the editorial board of a number of sociological and sexological publications[,] including the Journal of the International Network on Personal Relations, Sexual Health[] (senior editor), and the Journal of Personal Relationships. She has served as a reviewer for many other journalsf,] including the American Sociological Review, the Journal of Marriage and the Family, the Journal of Family Issues, etc. She has also served on several review committees for the National Institute of Health. 71. Dr. Schwartz has been asked to give expert testimony on a number of important issues in her field and has served on national commissions. She was asked to give testimony in Baehr v. Department of Health, 1st Circuit Court of Hawaii, on the issue of gay marriage and marriage in the United States, and on sexuality in the military in Federal Court in New York City in the 2nd Circuit on the comparisons of heterosexual and homosexual practices. She has also given testimony to the United States Commission on AIDS. Dr. Schwartz served on the National Committee on Sexual Education for Planned Parenthood, the National Committee on Sexuality and the Media for S.E.I.C.U.S. [ ] (sex education, information council of the United States) [,] and for the National Commission on Adolescent Sexual Health. In 1984, Dr. Schwartz served on President Ronald Reagan’s Advisory Roundtable on the Family. 72. Dr. Schwartz is the author of eleven books, most of a scholarly nature, among them The Gender of Sexuality (with Virginia Rutter) Pine Forge, 1998, Peer Marriage, Free Press, 1994, Gender and Intimate Relationships (with Barbara Risman and others) and American Couples (Wm.Morrow, 1983). She also writes for a general audience and writes nationally syndicated columns for American Baby Magazine on relationships and sexuality and Glamour Magazine (with Janet Lever) on Sex and Health. She has also written The Great Sex Weekend (with Janet Lever; Putnam, 1998) which, among other information, discusses the use of vibrators in sexual enhancement. The newest popular books Dr. Schwartz has written will be published next year, What I Learned about Sex; Wisdom from America’s Sex Educators, Counselors, and Researchers (with Debra Hafner; Putnam, 1998) and 201 Questions for Parents to ask Children/ 201 Questions for Children to ask Parents, Avon, 1999. Dr. Schwartz has also published over 40 academic articles. More specific information is included in her vita. 73. If called to testify, Dr. Schwartz would testify that based on her review of the literature, her interviews with hundreds of couples about their sex lives, and her receipt of thousands of questionnaires and letters from both men and women, she has concluded that vibrators are a commonly accepted form of sexual pleasure, release and therapy in the United States, most usually used in couple relationships, but also used by women and men alone. 74. If called to testify, Dr. Schwartz would testify that her research and experience indicates that some of the earliest discussions of vibrators and dilators (often popularly called dildos) appears in the therapeutic literature in the early work of William Masters and Virginia Johnson in which they used both devices to measure female sexual functioning. The work they did would have been impossible to accomplish without these devices and they helped establish base line data on orgasmic capacity and dysfunction. Later work by Masters, Johnson[J and Kolodny helped establish that vibrators and dilators were useful for helping establish orgasmic capacity in anorgasmic women and also for reestablishing capacity in gerontological populations. They also did some work in helping women who had little or no sexual feeling establish sexual feeling. 75. If called to testify, Dr. Schwartz would testify that her research and experience indicates that the field of modern sex therapy was essentially established with the work of Masters, Johnson, and Kolodny, although sexual therapy per se has been practiced for hundreds of years and there is advice on how to be sexually functional in the most ancient of tracts. This is because, throughout the ages, people have realized that sexual functioning is an important part of human mental health — not just for the purposes of reproduction, but also for promoting health, happiness, and relationship bonding. 76. If called to testify, Dr. Schwartz would testify that her research and experience also indicates that modern sexual therapy now believes that masturbation is an important adjunct to sexual functioning!,] and that masturbation is a healthy rehearsal to establish knowledge about one’s body and the ability to give and receive pleasure. While it might seem that everyone could accomplish masturbation manually, in fact, some women do not masturbate competently, this is sometimes because of misinformation, and other times because there may be problems with blood flow into the vaginal area. 77. If called to testify, Dr. Schwartz would testify that her research and experience indicates that vibrators produce an intense stimulation that creates more blood flow, more quickly for some women[,] and thus is recommended by therapists as a way for creating enough sexual arousal for women who are having trouble increasing arousal enough to have an orgasm, or even to enjoy sexual intercourse. This is therapy for couples who are having sexual problems in their marriage, but also for women without partners who want to be able to experience sexual arousal and satisfaction. This also includes older women who may be widowed and would like to stay sexually active!,] even if they do not have a partner!,] and the disabled!,] who may never have a partner!,] or who, because of their disability, did not have the usual gradual sexual socialization and haven’t learned how to make their body work for them and need assistance. 78. If called to testify, Dr. Schwartz would testify that her research and experience indicates that sex therapy has grown because so many people now value a high level of sexual functioning. Still, there are very few places that doctors and psychologists can send their patients to buy sexual devices. There are some mail order catalogues!,] but doctors do not always know about them!,] and individuals seeking this information may not know about them either. In Dr. Schwartz’s professional opinion, small stores specializing in these devices are absolutely necessary so that individuals can find the vibrators and dilators that will help them be functional. Furthermore, there are different size dilators and different power vibrators!,] and it helps to be able to look at them and find what is required. In circumstances of severe dilation problems, for example, the physician might start with very little intromission (entry with a small finger, for example) and then, upon increasing the elasticity of the vagina, use dilators of increasing size. 79. Dr. Schwartz’s research and experience also indicates that!,] while the most problematic of sexual problems may be relatively rare (having to dilate an almost closed vaginal canal), there are numerous other reasons for using a vibrator. These include: (1) learning how to have an orgasm; (2) satisfying one’s desires before one is ready for a partner; (3) use by the pathologically shy; (4) use by people with grave physical and mental afflictions, etc.; (5) use after divorce; (6) use in old age; or (7) use when one’s partner is unavailable. One prominent study relied upon by Dr. Schwartz stipulates that approximately 20% of American women at least occasionally use a vibrator. The National Sexual Health Study by Julia Herman (University of Washington) and Joseph Catania (UCLA) done in 1997 indicated about 10% of sexually active adults use vibrators in their regular sex life. 80. Dr. Schwartz’s research and experience indicates that almost every book on sexual therapy supports the use of vibrators and dilators as an important way to teach sexual functioning. Anecdotal information from case studies of women in these books confirms the utility of these sex devices. The Harvard Women’s Medical book talks about using dilators for Kegel’s exercises (strengthening the pelvic muscles to make orgasm more likely or more intense or to help reverse stress incontinence — a common problem in post-menopausal women). An article by Clive Davis, et ah, in the Journal of Sex Research in 1996, “Characteristics of Vibrator Use Among Women,” shows that in a sample of women who have bought vibrators at one store, that these women use them in partnered relationships, but most commonly alone. Women tended to rate orgasms as more intense with vibrators than in intercourse (see also Lonnie Barbach, For Yourself) [,] but that is seen as an adjunct to partner relationships, not a replacement. 81. Dr. Schwartz’s research and experience also indicates that several articles (“Help with Sexual Difficulties”, “Drug Therapy Bulletin”, “The relationship between mode of female masturbation and achievement of orgasm in coitus”, Archives of Sexual Behavior, June 1983, and others to be produced), establish that vibrators helped anorgasmic women, especially disabled women, reach orgasmic potential. Even articles that say vibrators are less effective than previously thought, find vibrators helping produce orgasmic capacity at 47% of the treatment group. (“The semantics of success: do masturbation exercises lead to partner orgasm?” J.C. Wake-field, Journal of Sexual and Marital Therapy, Spring 1987.) 82.In the professional opinion of Dr. Schwartz, vibrators and dilators are of medical and psychological benefit to women and their partners, an adjunct to marital and sexual therapy and an absolute necessity in some kinds of therapeutic approaches for sexual dysfunction. (Stipulation of facts, Doc. No. 33.) II. ANALYSIS OF THE PARTIES’ CONTENTIONS A. Standing to Sue The federal concept of “standing” addresses the issue of whether a particular person is the proper party to mount a constitutional challenge to governmental action. See generally, Charles Alan Wright, Law of Federal Courts § 13 (5th ed.1994); Erwin Chemerinsky, Federal Jurisdiction 53 (2d ed.1994). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The Supreme Court has articulated the standing requirement as part of the “case or controversy” requirement of Article III, Section 2 of the United States Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The doctrine of standing mandates that a party seeking to invoke a federal court’s jurisdiction demonstrate three things: (1) an “injury in fact”; (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. See Northeastern Florida Chapter of Associated General Contractors v. Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 2302, 124 L.Ed.2d 586 (1993). The Attorney General challenges the vendor plaintiffs’ ability to assert a challenge to Alabama Act No. 98-467 on behalf of their customers: that is, of unnamed users of the proscribed devices. Clarifying this position at oral argument, the Assistant Attorney General representing defendant said: “[w]e think the sellers can have standing as sellers of the products but not on behalf of the users, ... given the fact that users are here ” (emphasis supplied). As an initial matter, this court finds that the vendor plaintiffs independently satisfy standing requirements. See Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 897 (1976). Furthermore, this court agrees with the Attorney General’s implicit concession that the user plaintiffs have standing to assert a due process challenge, Cf. Carey v. Population Services International, 431 U.S. 678, 683-84, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977). As a consequence, it is not necessary to decide the standing of the vendor plaintiffs to act as advocates for the rights of unnamed users of the proscribed devices. See id. at 682, 97 S.Ct. at 2014. The Article III “case or controversy” requirement has been satisfied for the challenges to the legislation presented in this action. B. Framework of Analysis for Substantive Due Process Claims Plaintiffs claim enforcement of Alabama Code § 13A-12-200.2(a)(l) would impose an undue burden on their “fundamental rights of privacy and personal autonomy guaranteed by the First, Fourth, Fifth, Ninth[,] and Fourteenth Amendments of the United States Constitution.” (Plaintiffs’ corrected memorandum, Doc. No. 24, at 2.) Plaintiffs thus assert that their right of privacy and personal autonomy constitutes a “liberty interest” protected by the Due Process Clause of the Fourteenth Amendment. Such claims fall under the rubric and correlative analytical framework of substantive due process claims. See, e.g., Washington v. Glucksberg, 521 U.S. 702, -, 117 S.Ct. 2258, 2267-68, 138 L.Ed.2d 772 (1997). The standard of scrutiny a legislative act faces when challenged on such grounds depends upon whether the statute burdens a “fundamental right.” If legislation interferes with the exercise of a fundamental right, then that legislation is subject to strict judicial scrutiny. The ensuing inquiry asks whether the challenged governmental action is justified by a compelling state interest, and whether the statute at issue is narrowly tailored to achieve that compelling state interest through the least restrictive means possible. See, e.g., Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973) (“Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ ... and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.”) (citations omitted). If legislation does not burden a fundamental right, however, then the act faces only minimal scrutiny: that is, a “rational basis” standard. When reviewing legislation under a rational basis test, courts ensure only that a legitimate governmental interest supports the legislation, and, that the resulting law bears a rational relation to that interest. See Glucksberg, 117 S.Ct. at 2271; Reno v. Flores, 507 U.S. 292, 302-05, 113 S.Ct. 1439, 1447-49, 123 L.Ed.2d 1 (1993). Thus, determining whether a particular statute interferes with the exercise of a fundamental right is a critical inquiry in the analysis of substantive due process claims. C. Does the Alabama Act Infringe on a Fundamental Right? Plaintiffs do not seek recognition of a fundamental right. Rather, they seek extension of the “right to privacy” which the Supreme Court has recognized as fundamental in certain contexts. Plaintiffs frame the issue in this case as whether the right to privacy “is broad enough to encompass an individual’s decision to engage in private sexual activity not proscribed by law.” (Plaintiffs’ corrected memorandum, at 14 (emphasis in original).) The Attorney General, on the other hand, contends this case presents the following question: “whether there is a constitutional right to obtain dildos, vibrators, and other marital aids ‘designed or marketed as useful primarily for the stimulation of human genital organs.’ ” (Brief of Alabama Attorney General, Doc. No. 35, at 4.) In the opinion of this court, however, the issue at this stage of analysis is neither as broad as plaintiffs suggest, nor as narrow as the Attorney General defines it. Instead, this court must decide whether the concept of a constitutionally protected “right to privacy” protects an individual’s liberty to use devices “designed or marketed as useful primarily for the stimulation of human genital organs” when engaging in lawful, private, sexual activity. 1. Background: fundamental rights generally The Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects individuals from state governmental interference with specific liberty interests, not simply from physical restraint. In so doing, the Court speaks in terms of “substantive due process” and “fundamental rights.” The Court also consistently expresses or manifests its reluctance to expand these notions and, therefore, the protection of the Due Process Clause: [W]e “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins[ v. City of Harker Heights, Tex.], 503 U.S.[ 115], at 125, 112 S.Ct.[ 1061], at 1068[, 117 L.Ed.2d 261 (1992)]. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” ibid, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court, Moore, 431 U.S., at 502, 97 S.Ct., at 1937 (plurality opinion). Glucksberg, 117 S.Ct. at 2267-68. These concerns have prompted the Court to maintain focus on its proper role when reviewing legislative enactments. Accordingly, the Court adheres to an analytical method with two principal guidelines: (1) “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed,” id. at 2268 (citations and internal quotation marks omitted); and (2) substantive due process claims require “a careful description of the asserted fundamental liberty interest...id. (citations and internal quotation marks omitted). In accordance with these amorphous guidelines, the Supreme Court looks to the history, legal traditions, and practices of this Nation as “guideposts for responsible deci-sionmaking, ... that direct and restrain [the Court’s] exposition of the Due Process Clause.” Id. Recently, in Washington v. Glucksberg, 521 U.S. 702, -, 117 S.Ct. 2258, 2267-68, 138 L.Ed.2d 772 (1997), the Court cata-logued the opinions in which it had invalidated state laws because they infringed on an individual’s fundamental rights. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and to abortion, [Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ]. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan [v. Director, Missouri Dept. of Health, 497 U.S. 261, 278-279, 110 S.Ct. 2841, 2851-2852, 111 L.Ed.2d 224 (1990) ]. (Emphasis supplied.) This exhaustive list comprises only eight, specific liberty interests or fundamental rights. 2. Plaintiffs’ assertion of a fundamental right As previously noted, plaintiffs seek extension of the recognized right to privacy, so that it covers individuals who desire to engage in lawful, private, sexual conduct that section 13A-12-200.2(a)(l) unduly burdens. Plaintiffs seek protection behind that line of cases guarding “the personal intimacies of the home, the family, marriage, motherhood, procreation, child rearing.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-66, 93 S.Ct. 2628, 2639-40, 37 L.Ed.2d 446 (1973) (citing Eisenstadt v. Baird, 405 U.S. 438, 453-54, 92 S.Ct. 1029, 1038-1039, 31 L.Ed.2d 349 (1972); id. at 460, 463-65, 92 S.Ct. at 1042, 1043-044 (White, J., concurring); Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 182