Right to Privacy

1. Right to Privacy The “Penumbra” of Rights

2. What is Privacy? • Can your right to privacy be defined? • The government typically has looked at privacy as behavior or activity free of an invasive government • Court tried to define privacy as emanating from the 1st, 3rd, 4th, 5th, and 9th Amendments • 3 controversies • Privacy not in Constitution • How far does privacy extend • What is the role of the Court in determining privacy • Olmstead v. US (1928) • Privacy first mentioned-Founders “conferred, as against the government, the right to be left alone-the most comprehensive of rights and the right most valued by civilzed men. To protect that right, every unjustified intrusion of government upon the privacy of the individual, whatever the means employed, must be deemed a “constitutional violation.” Justice Louis Brandeis

3. First “right to privacy” case • Griswold v. Connecticut (1965) • Connecticut law prohibits using contraceptives and counseling for using them which Griswold had done • Court overturns conviction stating law violates her right to privacy • Justice Douglas stipulates a right to privacy emerges from other rights such as the 1st, 4th, 5th, and the 14th Amendments • These rights have “penumbras” of guarantees • Douglas also felt that enforcement of the law would require extraordinary government intrusiveness • Justice Goldberg concurred, also including the role of the 9th Amendment in this guaratee of privacy

4. Roe v. Wade (1973) • Jane Roe had been raped while working in Texas and wanted to have an abortion which was illegal in 25 states including Texas • Texas argued 2 reasons why • Safeguard health of the mother • Protect the right to life of the fetus • Justice Blackmun writes that the decision to have an abortion was protected by the right to privacy and sets up the trimester plan as to when the states can regulate abortions

5. The effect of Roe • Planned Parenthood v. Case (1992) • Court strikes down the spousal notification of the Pennsylvania Abortion Control Act • Stenberg v. Carhart (2000) • Allows partial birth abortion if medically necessary Roe and Griswold have also helped to build cases for “sexual autonomy” • Bowers v. Hardwick (1986) • Court upholds Georgia antisodomy law by stating the right to privacy was meant to protect institutions or marriage and procreation, not homosexuality • Lawrence v. Texas (2003) Court strikesdown a Texas law and overrules its Bowers decision on the grounds that the law vilolates the individuals Due Process 14th Amendment rights. Furthermore, there was no legitimate state interest which can justify intrusion into the personal and private life of the individual