The scope of the right to privacy has been debated from the beginning of the U.S.
With the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization making headlines last week, the general public is becoming more aware of how the right to privacy has been a decisive concept in cases that confirmed rights we often assume are now givens.
On one hand, we are social and political creatures. What we do impacts others, and an absolute right to privacy is impossible.
On the other hand, people like James Madison feared the imposition of the government upon our private lives and built protections into the Bill of Rights.
The First Amendment is about a right to private belief, free speech, freedom of religion and a free press.
The Third Amendment establishes a right to privacy of one’s home from the forced quartering of soldiers. This is intensified in the Fourth Amendment, guaranteeing the privacy of a person’s body and their possessions from unreasonable or unjustified search and seizure.
The Fifth Amendment establishes a privacy of personal information in the protection against self-incrimination. The Ninth Amendment ensures that the federal government does not control rights not listed in the Constitution.
In 1868, the nation added the Fourteenth Amendment, which focused on equal protection under the law, due process and individual liberty.
Many legal scholars have taken some or all of these amendments and argued that they are based on an assumption that personal privacy is a foundational concept presupposed by the Constitution.
Many “originalists,” however, argue that all statements in the Constitution must be interpreted based on the understanding of the original authors and have concluded that no such right is guaranteed.
Since the 1920s, courts have moved toward using the “liberty” clause of the Fourteenth Amendment to guarantee a broad view of privacy.
My previous article focused primarily on Griswold v. Connecticut and Roe v. Wade as they relate to the Dobbs case, but SCOTUS has used the right to privacy as the basis for many rulings that impact more than just contraceptives and abortion.
Beginning in 1923, Myer v. Nebraska struck down a state law that prohibited the teaching of German and other languages until the ninth grade.
The majority ruling was that the state failed to justify the infringement of the right of privacy possessed by parents and teacher. As Justice McReynolds explained:
“While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
The court continued to follow this line of thought in Peirce v. Society of Sister (1925), striking down an Oregon law that compelled all children to attend public schools.
The assumption that the Bill of Rights presupposes a general right to privacy came back in Griswold v. Connecticut (1965), which cited marital privacy as the basis for couples having a right to use contraceptives.
Ultimately, the same line of thought appeared in Roe v. Wade, which leaned heavily on a right to privacy as guaranteed in the Fourteenth Amendment.
In Moore v. East Cleveland (1977), the court used familial privacy to defend a grandmother’s right to live with her two grandsons.
And in the landmark case Cruzan v. Missouri Department of Health (1990), privacy and liberty were cited to justify an individual’s right to make decisions about the termination of life-prolonging medical treatment.
In the 2003 case of Lawrence v. Texas, the high court struck down the state’s sodomy laws, citing the Fourteenth Amendment and the right to privacy, personal autonomy and individual liberty.
Justice Kennedy’s majority ruling explains:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. … The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
While the court has repeatedly defended the idea of personal privacy for a century, privacy is not absolute. The state can step in if it can justify a compelling reason and interest, but when the government can or cannot violate individual liberty remains hotly debated.
Griswold and Roe argue that the state has a high burden of proof to justify invading one’s personal zone of liberty and privacy. Cruzan and Lawrence on the other hand suggest that the burden is not that high.
The right to privacy impacts our very concept of liberty, which is at the core of our concept of human dignity.
How the court rules in Dobbs will have larger implications because the right to privacy consideration in the Roe decision has been used as the basis for many decisions since then.
The leaked Dobbs opinion, suggesting that the court will overturn Roe – which is now comprised of a majority of originalists – could open to the door to cases challenging prior SCOTUS rulings on contraception, same-sex relationships, end of life decisions and more.