Right to Privacy

“Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”

If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. — Justice Brennan concurring in Eisenstadt.

Is there a Constitutional right to privacy. The courts have found there is.

The U. S. Constitution contains no express right to privacy.  The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information.  In addition, the Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people.”

​In Griswold v. Connecticut, 1965, the Supreme Court found a right to privacy, for married couples with regard to the right to purchase contraceptives. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth and Ninth Amendments to find that there is an implied right to privacy in the Constitution. This was a 7-2 decision.

In Loving v. Virginia, 1967, the Supreme Court ended race-based legal restrictions on marriage. The Court found that Virginia’s law violated the Fourteenth Amendment’s Equal Protection Clause because it forbid interracial couples to marry while others were allowed to do so. This was a unanimous decision.

In Stanley v Georgia, 1969, the Court concluded that the right of privacy protected an individual’s right to possess and view pornography at home based on the First and Fourth Amendments. This was a unanimous decision.

In Eisenstadt v. Baird, 1971, the Supreme Court extended the right to purchase contraceptives to unmarried couples. The Court found that “the constitutionally protected right of privacy inheres in the individual, not the marital couple.” This was a 6-1 decision.

In Roe v. Wade, 1972, the Supreme Court extended the right to privacy to encompass a woman’s right to have an abortion. This was a 7-2 decision.

In Lawrence v. Texas, 2003, the Supreme Court extended the right to engage in sexual conduct to persons of the same sex. Relying upon the Fourteenth Amendment’s guarantee of due process, the Court held: “The petitioners are entitled to respect for their private lives.” This was a 6-3 decision.

In Obergefell v. Hodges, (2015),  Supreme Court ruled that the right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Marriages of same-sex couples have all the rights and responsibilities as marriages of opposite-sex couples. This was a 5-4 decision.

Over time, votes on privacy cases have grown closer. We need to keep in mind that more than Roe v. Wade depends on our right to privacy. If a decision on Roe weakens the right to privacy, other decisions might be in jeopardy.

© William Hungerford – April 15, 2022

About whungerford

* Contributor at NewNY23rd.com where we discuss the politics, economics, and events of the New New York 23rd Congressional District (Allegany, Cattaraugus, Chautauqua, Chemung, (Eastern) Ontario, Schuyler, Seneca, Steuben,Tioga, Tompkins, and Yates Counties) Please visit and comment on whatever strikes your fancy.
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6 Responses to Right to Privacy

  1. josephurban says:

    Keep in mind that that same sex marriage was decided 5-4. Three of the justices who supported the right to marry are now gone. Once roe is overturned, this one will be next.

    Liked by 1 person

  2. whungerford says:

    I hope that won’t happen, Joseph. Obergefell v. Hodges is on firmer ground than Roe. Allowing some to marry and denying the right to others conflicts with “equal protection of the laws.” When Roe was decided, the Justices in the majority disagreed on the Constitutional basis of the decision–was it liberty, privacy, or due process? Justice Blackmun’s opinion skirted that question.

    Liked by 1 person

  3. Arthur ahrens says:

    Will the current right wing activist court continue to twist itself into knots disregarding stare decisis?
    Will the sun rise in the East?

    Liked by 2 people

  4. whungerford says:

    Arthur, I think it very likely that they will. The Court did that when making the Roe decision, which left it vulnerable in several ways: the Justices differed on the Constitutional basis for the decision, which wasn’t explicitly stated, and on the details of the decision–dividing pregnancy into three trimesters is somewhat arbitrary and thus prone to revision.

    Woodward and Armstrong, in “The Brethran,” 1979, discuss the process at length.


  5. Arthur ahrens says:

    Speaking of rights…

    Does a woman have the right to choose what happens to her own body?


  6. arthur ahrens says:

    A lot of people don’t understand that the abortion battle is NOT ABOUT fetuses. It is about CONTROL!


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