There is no right to privacy directly guaranteed in the Constitution or Bill of Rights, though we can assume that the founders assumed one. So much of the early documents is about fear of government intrusion into private matters that a right to privacy feels implicit, a basis for the more explicit rights. “The right to privacy, to be left alone to do what we want, is so obviously desirable that it scarcely needs a defense.” (Barbour & Wright, 2017) However, like other rights, the Courts have debated whether the right to privacy actually exists, and if so, what limitations should be placed on it. Absolute right to privacy would be anarchy, with its opposite being totalitarianism.
The idea did not really exist until 1890, when Samuel Warren and Louis Brandeis published an article titled “The Right to Privacy” in the Harvard Law Review. The authors begin the article by saying the right to protection of person and property exists in common law, “but it has been found necessary from time to time to define anew the exact nature and extent of such protection.” (Warren & Brandeis, 1890, p. 193) Citing Thomas Cooley, they call this the right “to be let alone.” With the recent technological advancements in publishing and photography, Warren and Brandeis are largely concerned with the possibilities of publishing and distributing items like letters and portraits without the knowledge and consent of the owners. These men based their right to privacy on an inviolate personality, or a right to your own personality, without interference or undue publicity. Their aim was not to protect the actual, physical documents, but instead to protect the feeling of safety attached with them. In their own words, “Thoughts, emotions, and sensations demanded legal recognition…” (Warren & Brandeis, 1890)
While many of their ideas echo the concepts of slander and libel, they move beyond those in a very important way. For them, you not only have the right to not be depicted maliciously or inaccurately, but you have the right not to be depicted at all. (Warren & Brandeis, 1980, p. 218)
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In 1960, William Prosser, building off Warren and Brandeis, offers four torts against the right to privacy in an article for the California Law Review:
- “Intrusion upon a person’s seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about an individual
- Publicly placing one in a false light in the public eye
- Appropriation of one’s likeness for the advantage of another” (Prosser, 1960)
While Warren and Brandeis were being prescriptive for how they thought the right should apply, Prosser was able to look back at seventy years of decisions and see how the idea had been used by the courts and clarify. (DeCew, 2018)
The Supreme Court first explores a right to privacy in 1965, with Griswold v. Connecticut.
In 1970, Norma McCorvey (alias Jane Roe) filed suit in the United States District Court for Northern Texas against the state’s restrictive abortion law, which only allowed for abortion “for the purpose of saving the life of the mother.” The District Court unanimously found the law unconstitutional, violating the right to privacy of the Ninth Amendment, which states that the ‘enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people.’ This decision relied on the 1965 concurrence of Justice Goldberg in Griswold v. Connecticut.
When the case was appealed before the Supreme Court, that Court ruled 7-2 against the state’s law. However, instead of using the Ninth Amendment, as the lower court had, they found with the right of privacy in the Fourteenth Amendment and the Due Process Clause. Judge Blackburn’s decision stated:
“The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and the restrictions upon state action, as we feel it is, or as the district court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (Roe v. Wade, 1973)
This decision did not cover all abortions, though. Abortions during the first trimester were left up to the discretion of the woman’s physician. The decision then states that, after viability, the state may choose to “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” (Roe v. Wade, 1973)
As states began to push at the limits of abortion regulation, another decision became necessary. Between 1988 and 1989, Pennsylvania expanded its abortion regulations to require, among other things, a twenty-four hour waiting period and informed consent. In 1992, the Supreme Court (including six Reagan and Bush appointees) reaffirmed the Roe v. Wade decision in Planned Parenthood v. Casey, due to stare decisis (respect of precedent). Though a woman’s right to an abortion was uphold, so also was the state’s power to regulate those procedures. Three of Pennsylvania’s four provisions were upheld, creating the “undue burden” test. (Planned Parenthood v. Casey, 1992).
The Court has not always been clear on the right to privacy. In the 1986 case Bowers v. Hardwick, the right to privacy was not used to strike down a ban on sodomy in Georgia. Seventeen years later, in Lawrence v. Texas, the Court struck down a similar law because it “violated the guarantee of equal protection and vital interests in liberty and privacy protected by the due process clause of the Constitution.” (DeCew, 2018) Further complicating the issue is the rise of the Moral Majority and the Christian Right, which, despite being involved with the Republican party, have pushed back against a constitutional right of privacy. (Barbour & Wright, 2017)
