Title:		A Right-to-Privacy Primer  
Author:		Kadin2048
Date:		11/30/2007
Language:	English  
Copyright:	CC-BY-SA 2.0 or later  
Format:		Complete  

## A Right-to-Privacy Primer ##

The oft-mentioned “Right to Privacy” in the United States is one of
many ‘unenumerated’ rights, that is, rights that are derived from and
are consistent with rights actually enumerated in the Constitution,
but do not actually appear in its text. To trace the history of the
privacy right in the U.S. is to delve into one of the great
jurisprudential conflicts of the late 20th century. It is my goal in
this document to give the interested but uninformed reader an overview
of the battle as it has been fought so far, and through this, a
greater understanding and appreciation for new developments as they
occur.

### Griswold v. Connecticut, 1965 ###

The modern right to privacy was principally established in 1965 in the
landmark Supreme Court case of _Griswold v. Connecticut_, which stemmed from a
challenge to Connecticut's (frequently ignored) ban at the time on all
contraceptives. In _Griswold_, the Court held that “the right to
privacy in the marital relation is fundamental and basic -- a personal
right 'retained by the people' within the meaning of the Ninth
Amendment. Connecticut cannot constitutionally abridge this
fundamental right.” [^goldberg]

This decision was based on several previous Supreme Court rulings,
including ones relating to a parent's right to decide where to school
their child, [^meyer] and the right to study certain languages or
subjects. [^douglas] The privacy right established in _Griswold_ was
limited, but it provided the foundation on which later cases, and a
more inclusive right to privacy, would be built. Most controversially,
it played a major role in _Roe v. Wade_, eight years later.

_Griswold_ created a ‘zone of privacy’ around what Justice Douglas
referred to as the “sacred precincts of marital bedrooms,” [^douglas2]
and was aimed specifically at protecting the “right to bear children
and raise a family,” commonly referred to as the right to 'bear or
beget' a child. In creating this 'zone,' the Court wasn't going very
far; arguably, this should already have been territory well protected
under the Fourth Amendment. But the bedrooms of married couples, who
in their desire to not have children might want to use contraception,
were as far as the majority opinion went.

However, certain members of the Court went beyond Douglas' paltry
bedroom right: particularly Justices Goldberg, Brennan, and Chief
Justice Warren, who specifically call the privacy right "fundamental"
in their concurring opinion. In doing so, they plant the seed of a
broader view, which is perhaps the dominant one today: that the right
to privacy in the bedroom is not a function of the 'sacred institution
of marriage,' but of basic *individual* liberty. The crux of this is
found in Goldberg's references not to the social utility of the
institution of marriage, but to the Ninth Amendment:

> To hold that a right so basic and fundamental and so deep-rooted in
our society as the right of privacy in marriage may be infringed
because that right is not guaranteed in so many words by the first
eight amendments to the Constitution is to ignore the Ninth Amendment
and to give it no effect whatsoever. Moreover, a judicial construction
that this fundamental right is not protected by the Constitution
because it is not mentioned in explicit terms by one of the first
eight amendments or elsewhere in the Constitution would violate the
Ninth Amendment, which specifically states that "[t]he enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people...."

> In determining which rights are fundamental, judges are not left at
large to decide cases in light of their personal and private
notions. Rather, they must look to the "traditions and [collective]
conscience of our people" to determine whether a principle is "so
rooted [there]...as to be ranked as fundamental." The inquiry is
whether a right involved "is of such a character that it cannot be
denied without violating those 'fundamental principles of liberty and
justice which lie at the base of all our civil and political
institutions'...."

Goldberg's interpretation is critically different from Douglas',
because it relies far less heavily on the 'sacredness' of the
institution of marriage, instead drawing its strengths from the
Amendments more directly. And since those Amendments apply equally to
all persons, married or not (via the Equal Protection clause), it is
here that we find the place from where other cases would begin.

Although Goldberg and his concurring colleagues planted the seed of an
individual conception of sexual freedom, it was not until several
years later, in _Eisenstadt v. Baird_, that it would come to fruition.

### Eisenstadt v. Baird, 1972 ###

The _Eisenstadt_ case was similar to _Griswold_ in that it invalidated
a New England contraception law, although this time in Massachusetts
rather than Connecticut. The Massachusetts law made it unlawful for
any person to sell or distribute contraceptives, except for a doctor
or pharmacist giving them to a _married person_ for their own use. The
opinion of the Court rested heavily on _Griswold_. The critical part
of the Court’s findings here was that the Constitutional right to
privacy in _Griswold_ rests “in the individual, not the marital
couple.” [^eisenstadt] This was a critical distinction, which cannot be
overstated, as it separated the main point of _Griswold_ -- that there
is a fundamental right to privacy with regard to sexuality -- from the
impassioned rhetoric by Justice Douglas about the sanctity of marriage
as a social institution.

The basis for the finding was the Equal Protection Clause [^epc] of
the Fourteenth Amendment. The Court found in _Eisenstadt_ that the
Massachusetts contraception law unfairly deprived unmarried persons of
their right to contraception, while allowing married persons theirs,
and was therefore unconstitutional.

Given the pains taken in the _Griswold_ opinion to avoid the issue of
extramarital sexual relations by restricting the zone of privacy to
married individuals, this line of reasoning was remarkably
uncontroversial within the Court. Even the sole dissenting Justice --
Justice Burger -- could apparently find little fault with their logic,
but chose instead to support the legitimacy of the law as written as a
tool to protect the public health by enforcing distribution channels
for potentially hazardous drugs.

Chief Justice Burger writes, “appellee's conviction for dispensing
medicinal material without a license seems eminently correct to me and
I would not disturb it.” He brushes off potential questions about the
status of the distributees, arguing that they are not within the
proper scope of the case, and focuses instead on the appellant, a
layman who gave away contraceptive foam at a lecture at Boston
University. Rather than focusing on the effect of the law -- that it
prohibits unmarried couples from obtaining contraception -- he focuses
on its supposed intent, which is ostensibly to protect the public from
unlicensed quacks peddling dangerous contraceptives. (In order to do
this, he turns a vast blind eye to the key point of the law, which is
not that it only allows dispensation of contraceptives _by_
pharmacists and physicians, but that it only allows them to be
dispensed _to_ married couples.) His only substantive point is to
discount the application of _Griswold_, citing its “tenuous moorings
to the text of the Constitution.”

The Court's decision in _Eisenstadt_ resulted in the demise of the
Massachusetts contraception law, primarily on Fourteenth Amendment
(Equal Protection) grounds. This case had both short- and long-term
effects on the general public. The existing statutes regulating the
sale and distribution of drugs kept some contraceptives (mostly
hormone-pill types and implants) within the realm of physicians, but
many others, including the contraceptive foam the appellant was
arrested for distributing, became available over the counter to all.

The long-term effects, however, were greater. By finding that the
right "bear or beget a child," and thus the greater 'right to intimate
association,' rests not in the married couple or the institution of
marriage but in the *individual*, _Eisenstadt_ laid the groundwork for
other cases which went beyond contraception, first into abortion and
then into the broader field of personal privacy.

In terms of overall significance, it is difficult to pick either
_Griswold_ or _Eistenstadt_ as superior to the other. Although
_Griswold_ tends to be the more memorable of the two, at least among
the general public, it was _Eisenstadt_ that really created the notion
of an individual right to privacy in the way most people are used to
thinking of it today.

### Roe v. Wade, 1973 ###

By far the most well-known right-to-privacy and reproductive rights
case in the U.S. is _Roe v. Wade_ (1973), which legalized some types
of abortion. Since the original decision, much of its effect has been
superseded by newer cases, but it remains critical as one step along
the path from _Griswold_ to the greater right-to-privacy debate today,
as well as the cornerstone of an ongoing national controversy.

_Roe v. Wade_ established, generally, that “the right of personal
privacy includes the abortion decision, but that this right is not
unqualified and must be considered against important state interests
in regulation.” In other words, that although the decision of whether
to terminate a pregnancy is a fundamental right (like the decision of
whether to begin one in the first place), there is a competing, also
fundamental, state interest in protecting the life of the unborn,
which must be weighed against it. The Court found that the state’s
interest (and thus justification for interference) increases during
the term of the pregnancy, from nonexistent just after the time of
conception, to very significant just before birth.

The Court did not attempt to answer the ‘fundamental question’ that
the entire abortion debate is premised on: “We need not resolve the
difficult question of when life begins. When those trained in the
respective disciplines of medicine, philosophy, and theology are
unable to arrive at any consensus, the judiciary, at this point in the
development of man’s knowledge, is not in a position to speculate as
to the answer.” [^blackmun] Instead, it set the point at which the
State has a ‘compelling’ interest in the life of the fetus at the end
of the first trimester. Prior to that point, abortions, when effected
by a physician in a safe manner, are allowed. Subsequent to the end of
the first trimester, the abortion decision becomes increasingly more
regulable by the State, until the third trimester, when the Court
found that it is legal for states to proscribe abortion except in
extreme cases. In creating these arbitrary zones, the Court avoided
delving into the heart of the controversy and instead created a 'rule
of thumb' for its regulation.

The importance of _Roe v. Wade_, in the broader right-to-privacy
sense, was that it applied the arguments constructed in _Griswold_ and
_Eisenstadt_ to an issue other than contraception, therefore showing
that the logic could be generalized and was not specific to a single
issue.

### Bowers v. Hardwick, 1986 ###

One of the next landmark right-to-privacy cases to call upon the right
to privacy established in _Griswold_ was _Bowers v. Hardwick_, in
1986. While _Roe_ was linked to _Griswold_ by the common thread of
reproduction, _Bowers_ concerns the other element of _Griswold_ which
was not touched on in _Roe:_ sex. In particular, non-procreative,
recreational sexuality in general. 

_Bowers v. Hardwick_ concerns an adult man who, after being charged
with sodomy, brought suit against the State of Georgia and alleged
that the state’s sodomy statute was unconstitutional, as a violation
of the Equal Protection clause (the same argument _Eisenstadt_ had
used successfully), since had he been in bed with a woman, he would
arguably have been protected by _Griswold's_ and _Eisenstadt's_ zone
of privacy.

Hardwick's lawyers argued that “homosexual activity is a private and
intimate association that is beyond the reach of state regulation by
reason of the Ninth Amendment and the Due Process Clause of the
Fourteenth Amendment,” [^bowers1] and is a fundamental right
necessitating a 'compelling interest' test on any State
interference. However, the Court did not agree. Instead, in what
amounts to the right-to-privacy analogue to _Dred Scott_, the Court of
Appeals’ decision to invalidate the sodomy law was reversed, on the
grounds that _Griswold_ does not establish "a fundamental right upon
homosexuals to engage in sodomy." [^bowers2]

The Court's basis for drawing this line, in the light of previous
findings that both married and unmarried couples have a de facto right
to non-procreative sex (_Griswold_ and _Eisenstadt_), is very thin
indeed, and rests on two major claims. The first is that _Griswold_
does not, in fact, establish a carte blanche right to sexual activity,
but only to the decision to bear or beget a child. The second is that
homosexual and heterosexual activities are different on an essential
and basic level.

The first point, regarding _Griswold_, represents the Court's (and in
particular, Justice White's) attempt to contort itself in order to
avoid the obvious logical conclusions of its earlier decisions, when
they suddenly decided they didn't like the ramifications.

Between _Griswold_ and _Eisenstadt_, heterosexual Americans are given
a fundamental right to contraception, which then gives them the
ability to have sex with someone of the opposite gender without having
to worry about whether the activity will result in the birth of a
child. Were the right limited only to the decision to 'bear or beget'
a child, but *not* to actually have non-procreative sexual
intercourse, there would be no need for the decisions in _Griswold_
and _Eisenstadt_. The Connecticut and Massachusetts contraceptive bans
could have stood by that logic, since they did not interfere with the
critical decision of whether to 'bear or beget' a child, only the
decision of whether to have sex or not.

Put simply: there is no reason for a right to obtain contraception, if
there is not also a right to non-procreational sexual activity. To
argue that one does not imply the other is ridiculous. Yet this is
exactly what the majority attempted.

Aside from the 'child-bearing' versus 'sex' hair-splitting, the
decision in _Bowers_ rests on the theory that homosexual bedroom
activities are fundamentally different from those between two
heterosexuals, and should be treated differently by the law.

This second point, which is the linchpin of the Bowers decision, boils
down to a theory for which there is not any secular rationale for:
namely, that homosexual activity (which is not a right) is in some way
more harmful then non-procreational heterosexual activity (which is,
at least _de facto_ if not _de jure_ protected, as a result of
_Griswold_ and _Eisenstadt_). Members of the Court cited historical
evidence in our legal tradition to justify their continued support for
the sodomy legislation; Justice Burger -- perhaps the Court's most
conservative member at the time -- noting that “homosexual conduct
ha[s] been subject to state intervention throughout the history of
Western Civilization.” However, what Justice Burger ignores is that
much of that historical intervention was based on non-secular
reasoning, and carried out under the color of non-secular authorities,
and has little place in a Constitutional dispute in the U.S. legal
system.

The significance of _Bowers_ in the greater scope of the
right-to-privacy debate is that it demonstrates that some activities,
no matter how within the realm of protection they may seem, may be
found unprotected by the courts on technicalities, if they lie
sufficiently outside the pale of public acceptance. Or, to put it
another way, the Supreme Court is oftentimes hesitant to establish
Constitutional rights to activities that have not been accepted by the
general public. The _Griswold_ and _Eisenstadt_ decisions were made in
1965 and 1972, respectively, well into the (hetero) "sexual
revolution" and invalidated laws that were barely enforced at the time
they were struck down.

The _Bowers_ case, in contrast, dealt with an activity participated in
by a much smaller segment of the population. Although in an ideal
world, we would hope that the Court would work in a vacuum,
considering only the legal and jurisprudential issues involved, this
is obviously not the case. In the case of _Bowers_, it was quite the
opposite -- the majority of the Court seemed to be more interested in
_not_ legitimizing sodomy than in any of the legal questions involved.

The _Bowers_ decision would stand for another 17 years before it was
reconsidered.

### Lawrence v. Texas, 2003 ###

When the issue of sexuality vs procreation again came before the
court, the public perception of homosexuality had arguably undergone a
significant change, and the member of the Court who had cast the
deciding vote had publicly admitted regrets with the _Bowers_
decision. [^powellvv]

In short, the decision in _Lawrence_ explicitly reversed _Bowers_, and
expanded the 14th Amendment's Equal Protection clause protection to
include sexual conduct by consenting individuals regardless of gender,
just as _Eisenstadt_ had done for marital status. Jurisprudentially,
very little new ground was covered, and the decision was essentially
exactly what _Bowers_ should have been, but wasn't.

> For this inquiry the Court deems it necessary to reconsider its
_Bowers_ holding.  The _Bowers_ Court’s initial substantive
statement–“The issue presented is whether the Federal Constitution
confers a fundamental right upon homosexuals to engage in sodomy…”
478 U.S., at 190– discloses the Court’s failure to appreciate the
extent of the liberty at stake. To say that the issue in _Bowers_ was
simply the right to engage in certain sexual conduct demeans the claim
the individual put forward, just as it would demean a married couple
were it said that marriage is just about the right to have sexual
intercourse. Although the laws involved in _Bowers_ and here purport
to do not more than prohibit a particular sexual act, their penalties
and purposes have more far-reaching consequences, touching upon the
most private human conduct, sexual behavior, and in the most private
of places, the home. They seek to control a personal relationship
that, whether or not entitled to formal recognition in the law, is
within the liberty of persons to choose without being punished as
criminals. [^lawrence]

It should be noted that the wording used here, particularly regarding
the past Court's "failure to appreciate the extent of liberty," is
fairly strong for a USSC opinion, especially considering how little
time had passed. It is simply another measure of how far both public
opinion, and the opinion of the Court, had shifted during the interim.

Overall, the effect of _Lawrence_ was to affirm that the logic in
_Eisenstadt_ and _Griswold_ was not, as Justice White had argued in
_Bowers_, somehow limited to the childbearing decision but not to
sexuality, and instead was a fundamental individual right belonging to
all persons.

### Conclusion ###

In the past 37 years since _Griswold v. Connecticut_ started the
“constitutional time bomb” ticking, the right to privacy has become
firmly entrenched in American jurisprudence. In general, and with the
glaring exception of _Bowers_, the Supreme Court has made a number of
fair and well-reasoned decisions, particularly in the light of the
shifting sands of public opinion, to which no court is immune.

The Right to Privacy is quite possibly the most important right that
we have that is not enumerated specifically in the Bill of
Rights. [^nbninth] It takes the purpose and original intent of the
Fourth Amendment (that is, noninterference from government) and
expands it to cover a variety of situations which are unique products
of our modern society. The scope of the Right to Privacy should and
does include the right to 'intimate association,' which is an umbrella
term for both the sex and procreative decision, and relatedly, the
limited right to abortion before fetal viability.

Whether the right to privacy will continue to be expanded to cover
more activities, particularly those activities partaken in by only a
small minority of the population, remains to be seen. The
jurisprudential underpinnings of _Griswold_ are by no means absolute,
and as was aptly demonstrated in _Bowers_, the court is only ever one
questionable decision away from uprooting years of established
precedent.

### Appendix A: Planned Parenthood v. Casey, 1992 ###

> Author's Note: This section was written in early 2002, and has not
  been updated.

One of the most recent Supreme Court cases to address the right to
privacy in its classic, ‘Griswold v. CT’ sense was Planned Parenthood
of S.E. Pennsylvania v.  Casey, 1992. It is the most recent Supreme
Court case and thus the ‘law of the land.’ In short, it maintains the
general stance of Roe but exchanges the trimester framework for a
semester one, where abortion is allowed and protected during the first
semester but can be prohibited during the second. The division between
the two semesters is viability.

Almost no new avenues of jurisprudence are opened in Casey, save
one. The Court creates a new test for determining how much burden the
State may place on a woman seeking an abortion during the first
‘semester,’ when she is legally entitled to abort. The test is known
in short as the “undue burden” test, and means specifically whether “a
state regulation has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a _nonviable_
fetus” [emphasis added]. The immediate reasons for this test were to
clarify that certain procedures put in place by the State of
Pennsylvania, specifically a 24-hour waiting period, requirement of
informed consent, and parental notification rule, were allowed, while
other, more restrictive rules might not be.

This test has been attacked as being arbitrary, and this does appear
to be a legitimate criticism. However, it is a creative compromise and
allows for a certain amount of regulation on abortion in states where
it is overwhelmingly viewed as immoral and wrong, which in the long
run may be the best approach for the women's rights front -- by ceding
small victories like Casey and allowing some state regulation, some of
the mainstream opposition which might otherwise go towards appointing
justices who will overturn Roe is defused. Overall, Planned Parenthood
v.  Casey does not and never will rival the importance of Roe v. Wade
as a right-to-privacy case, even though it may have replaced it as the
current law on abortion.

[^goldberg]: Justice Goldberg, concurring.
[Source](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/griswold.html)

[^meyer]: E.g. _Meyer v. State of Nebraska_, _Pierce v. Society of Sisters_, 
_Everson v. Board of Education of Ewing Township_.

[^douglas]: Mentioned by Justice Douglas in _Griswold_, writing for the Court.

[^douglas2]: Mentioned by Justice Douglas in _Griswold_, writing for the Court.

[^eisenstadt]: Eisenstadt v. Baird, 405 U.S. 438 (1972), for the Court.  
[Source](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=405&page=438)
 
[^epc]: "No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."

[^blackmun]: Roe v. Wade, 410 U.S. 113 (1973), Justice Blackmun, for the Court.

[^bowers1]: Bowers v. Hardwick, 478 U.S. 186 (1986), Justice White, for the Court. 
[Source](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZS.html)

[^bowers2]: Bowers v. Hardwick, 478 U.S. 186 (1986), Justice White, for the Court.

[^contra]: Note that when "contraception" is mentioned here, it refers
specifically to contraceptives, rather than to prophylactics such as
condoms and other 'barrier methods,' which act as contraceptives but
also serve other purposes, such as the prevention of disease.

[^powellvv]: "Justice Lewis Powell, as a member of the majority in
that case, was asked four years later at NYU if he had any second
thoughts — particularly since Powell had supported the privacy
protections in the Roe v. Wade abortion decision.  'I think I probably
made a mistake in the Hardwick case,' Powell said. Later, Powell
added, 'I do think it was inconsistent in a general way with Roe. When
I had the opportunity to reread the opinions a few months later, I
thought the dissent had the better of the arguments.'" -Village Voice
Magazine, December 16 - 22, 1998.
[Source](http://www.sodomylaws.org/usa/useditorial08.htm)

[^lawrence]: LAWRENCE et al. v. TEXAS, 539 U.S. 558 (2003), Syllabus.

[^nbninth]: It could be argued, and it would be entirely in the spirit
of Goldberg's _Griswold_ to do so, that the "unenumerated" rights are
Constitutionally entrenched by virtue of the Ninth Amendment.

### Version History: ###

November 21, 2002: Initial version (unpublished) created.  
October 23, 2007: First major revision, updated to include _Lawrence_.
	Available at
	http://kadin.sdf-us.org/articles/old/righttoprivacy.v1.utf8.txt  
November 30, 2007: Minor copy edits.
	 Available at 
	 http://kadin.sdf-us.org/articles/old/righttoprivacy.v2.utf8.txt