Constitutional Law

What is (was) the Right To Privacy?

I am not going to write directly about the Dobbs decision. There will be enough legal scholars brighter than me dissecting it over the next few months and years. Instead, I want to talk about what’s next. And that is the likely obliteration of the right to privacy as a concept. The Right to Privacy (RTP) gave us many decisions that could be next on the chopping block – including those that gave us marriage equality and contraception rights.

For lay people in particular, though, I think its difficult to grasp the concept and its role in law. So I will try to do a very quick analysis of where RTP came from and what its core principle protects. Spoiler alert: Its autonomy over decisions involving your most personal matters.

The right to privacy is, as a legal concept, is not as recent invention as you might think. It dates back to a law review article published in December of 1890 by two young Boston lawyers, Samuel Warren and Louis Brandeis.
Roscoe Pound, a legal scholar of the time who is best known for conceptualizing law as social engineering, described this article as having done “nothing less than add a chapter to our law.” Warren and Brandeis originally described the right to privacy as an already existing common law right which embodied protections for each individual’s “inviolate personality” To Warren and Brandeis, RTP meant that each individual had the right to choose to share or not to share with others information about his or her “private life, habits, acts, and relations.” They were prescient men, stating that “recent inventions and business methods” such as “instantaneous photographs and newspaper enterprise . . . and numerous mechanical devices” threatened to collect and disseminate personal information about individuals to the world at large. The said that American needed to recognize RTP to “protect the privacy of the individual” against this burgeoning technology-“from invasion either by the too enterprising press, the photographer, or the possessor of any other modem device for recording or reproducing scenes or sounds.” This was 100 years before the Internet.

But they expanded it to far more than the right to keep private information private. To them, RTP meant the “right to be let alone.” They argued that it came from the right to life (as in life, liberty and pursuit of happiness). Their point was that to have the true freedom promised by America’s founding documents, individuals must be free from unnecessary and untoward intrusion from others (including the government) in the most personal aspects of their lives.

With its emphasis on the prerogatives of the individual as against
those of the wider community, RTP was an unmistakable part of the long tradition of American individualism according to the authors. Their article opens with the individual in central focus: “That the individual shall have full protection in person and in property is a principle as old as the common law.”

But what made their article so important and ahead of its time was their insistence that RTP was not merely an ideological concept to be enshrined in our documents. RTP was a specific legal protection. Warren and Brandeis argued that the legal right of privacy afforded a theoretical basis for securing a variety of legal remedies.

This is the guy who gave us the right to privacy: Louis Brandeis

Brandeis eventually was appointed to the US Supreme Court and would use RTP in a scathing dissent -one of the most famous dissents in SCOTUS history actually -in Olmstead v. United States. In Olmstead, the court decided in a 5-4 opinion, that a wiretap recording of a phone conversation did not violate the 4th amendment’s prohibition against unreasonable search and seizure, finding that a wiretap and eaves dropping were not “searches” and that the protection of the 4th Amendment does not extend to the new fangled invention of the telephone which was not existence in 1789. Brandeis’ dissent made a mockery of that reasoning saying secretly listening to a phone conversation is no different than opening and reading a sealed letter. He argued that with the technological advances, the government has received the ability to invade privacy in more subtle ways; further, there is no reason to think that the rate of such technological advances will slow down. “Can it be that the Constitution affords no protection against such invasions of individual security?”, Brandeis asks. He answers that “the evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails.” And so RTP made it into a SCOTUS decision (though in dissent). Olmstead was later overruled in 1967.

While Roe v. Wade also relied on RTP to say that States could not outlaw abortions during the first two trimesters, it was actually Griswold v . Connecticut that fully formed the modern legal concept of RTP.

In a 7-2 decision authored by Justice William O. Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void. Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments.  Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right to privacy.  Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision. 

The Court then went further in 1992 with Casey v. Planned Parenthood. In 1982, Pennsylvania passed the Abortion Control Act, which required women to give “informed consent” before abortions could be performed and imposed a 24-hour waiting period upon women seeking abortions, during which time the women would be provided with information regarding abortions. The act also provided that minors seeking abortions first obtain informed consent from their parents, except in cases of “hardship,” in which a court could waive this requirement; and that, except in “medical emergencies,” a wife seeking an abortion must inform her husband of her plans prior to the procedure. Finally, the act required that all Pennsylvania abortion clinics report to the state. Planned Parenthood of Southeastern Pennsylvania filed a lawsuit against the state, arguing that the Abortion Control Act violated the Supreme Court’s ruling in Roe v. Wade. The Supreme Court, now more ideologically conservative than at the time Roe was decided, took the case for review. While upholding parts of the law (the 24 hour waiting period and the parental consent requirement) it stuck down a majority of its provisions and reaffirmed that Roe v. Wade was correctly decided.

The Court first declared that a woman’s decision to get an abortion implicates important “liberty interests” and “privacy interests” that the Constitution’s Due Process Clause protects against state interference. Together, these interests form a “substantive right to privacy.” The Court held that RTP is a legal protection against state interference in “marriage, procreation, contraception, family relationships, child rearing, and education.” This right also protects the abortion decision, the Court held, because it implicates equally intimate questions of a woman’s personal autonomy, personal sacrifices, emotional and mental health, and “the fundamental right to define her life.”

And that last sentence is what hits the nail on the head. RTP is the fundamental right to define your life. Its what protects you from government intrusion into who you marry; who you sleep with; whether to have a family; and what health decisions you want to make for yourself. The government forcing women to carry a child they don’t want was a prohibited invasion of a woman’s right to privacy under Griswold, Roe and Casey. And the numerous cases across the country and SCOTUS that re-affirmed that right until Dobbs.

In Dobbs, the majority actually held that since abortion was illegal when the 14th Amendment was ratified in 1868, it cannot be protected by the 14th Amendment. But the dissent, after first noting what else was prohibited in 1868 – women owing property, interracial marriage, etc – stated:

Whatever was true in 1868, “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.

To allow a State to exert control over one of “the most intimate and personal choices” a woman may make is not only to affect the course of her life, monumental as those effects might be. It is to alter her “views of [herself]” and her understanding of her “place[] in society” as someone with the recognized dignity and authority to make these choices. Id., at 856. Women have relied on Roe and Casey in this way for 50 years. Many have never known anything else. When Roe and Casey disappear, the loss of power, control, and dignity will be immense.

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