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.” 1

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, 2 and the right to study certain languages or subjects. 3 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,” 4 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.” 5 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 6 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.” 7 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,” 8 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." 9

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. 10

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. 11

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. 12 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.

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