What is the Right to Privacy?

The Right to Privacy has been defined as the “right to be free from unsanctioned intrusions.”

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The right to privacy is a fundamental right. Although it is not specifically mentioned in the Constitution, it is embedded in various amendments to the Constitution.

A landmark Supreme Court decision that fully articulated the right to privacy was Griswold v. Connecticut (1965), which held that the right to privacy included the right for married couples to use contraceptives.

In Roe v. Wade (1973) the Supreme Court ruled that women have a constitutional right to an abortion based on implied right to personal privacy from the Ninth and Fourteenth Amendments to the Constitution. The Court also set up a framework in which the woman’s right to abortion and the state’s right to protect potential life shift: during the first trimester of pregnancy, a woman’s privacy right is strongest and the state may not regulate abortion for any reason; during the second trimester, the state may regulate abortion only to protect the health of the woman; during the third trimester, the state may regulate or prohibit abortion to promote its interest in the potential life of the fetus, except where abortion is necessary to preserve the woman’s life or health.

Privacy Rights

When we covered substantive due process, we discussed fundamental rights. As you may recall, any regulation of a fundamental right must meet the strict scrutiny standard. Since the right to privacy is a fundamental right, regulations that affect these rights will be reviewed by the courts using the strict scrutiny standard. Thus, the governmental action must be necessary to protect a compelling governmental interest. There must be no less restrictive means to achieve the goal.

As you study privacy rights, think of the mnemonic “CAMPPER”

  1. Contraception.A state cannot prohibit distribution of nonmedical contraceptives to adults. This appliesto the sale and use of contraceptives by both married and unmarried persons.
  2. Abortion.A woman has a right to have an abortion without interference from the state under certain circumstances. States may not prohibit abortions but they may regulate them as long as the regulations create no Undue burden on the right to obtain an abortion. The government has no obligation to fund an abortion, even if the party is indigent. States can require consent of one or both parents or a judge for a minor to obtain an abortion.
  3. Marriage.Any restriction on the right to marry is prohibited.
  4. Procreation.This includes the right to be free from excessive governmental intrusion. It is closelyrelated to contraception.
  5. Pornography.The right to privacy includes the freedom to read obscene material (excluding childpornography).
  6. Education.Parents have the right to educate their children outside of public schools, subject to thestate’s right to set reasonable education standards.
  7. Relations.Zoning regulations that prevent related people from living together (immediate and extended family) are generally prohibited.

https://scholar.google.com/scholar_case?q=Roe v Wade&hl=en&as_sdt=2006&case=12334123945835207673&scilh=0

https://www.oyez.org/cases/1991/91-744
https://www.oyez.org/cases/2015/15-274

Read Roe v. Wade and answer the following questions:

1. Where in the Constitution does the Court find support for the right to privacy?

2. What are the state’s interests in regulating abortion that are recognized by the Court?

3. How is the right to privacy in the abortion context different from other areas in which a right to privacy has been recognized?

4. Review the following guide to anti-abortion laws by state. How have the recent laws passed by certain states affecting the legal precedent set by Roe v. Wade?

https://www.nbcnews.com/news/us-news/guide-anti-abortion-laws-state-n1012566
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