• Harvard College Law Review Facebook

© 2019 by Harvard College Law Review.

All rights reserved.

State Interests and Individual

Rights to Privacy

by Kelley Babphavong | Fall 2018

1.  Schneider, Carl E. "State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social Issues." Law and Contemporary Problems 51, no. 1 (1988): 79-122. Accessed April 15, 2017

2.  Schneider, "State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social Issues." 4.

3.  Johnson, John W. Griswold v. Connecticut: birth control and the constitutional right of privacy. Lawrence, Kan.: University Press of Kansas, 2005. 57.

4.  Johnson, Griswold v. Connecticut: birth control and the constitutional right of privacy. 57

5.  Ibid, 54.

6.  Ibid, 57.

11.  Ibid, 2-3.

12.  Ibid, 10.

19.  Ibid, 5.

20.  "Griswold v. Connecticut 381 U.S. 479 (1965)." 55.

21.  Ibid.

23.  Ibid, 55.

24.  Ibid, 56.

25.  "Lawrence v. Texas." Cornell LII. March 26, 2003. Accessed April 19, 2017. https://www.law.cornell.edu/supct/html/02-102.ZS.html. 1.

27.  Ibid, 5, 10.

You will not find the right to privacy, nor any words referring to it in the Bill of Rights, because it is an unwritten, fundamental right enshrined in the U.S. Constitution by doctrine and history. Over time, the right to privacy has strengthened and developed to encompass many areas of daily life. The Court in Griswold v. Connecticut, for example, first recognized that the right pertains to personal decisions involving the family and sexuality, and Griswold has become the basis for many other Supreme Court cases concerning such areas.[1] Griswold held that “where ‘fundamental rights’ are involved, regulation limiting these rights may be justified only by a ‘compelling state interest’.”[2]  When Griswold took place, there was a well-developed history of case law on the right to privacy but less-so on what defined a ‘compelling state interest’. There is little exploration as to the answers to these questions: what exactly is state’ interest in regulating sexuality and family decisions, and how exactly can the court apply a consistent standard to each of these types of cases. Two subsequent Supreme Court cases highlight this tension extremely well: Roe v. Wade shows the balance of state interests with individual interests through the trimester framework it creates, and Lawrence v. Texas shows the role of states (or lack thereof) in sexual activity. While Griswold and Lawrence hold individual rights superior, Roe instead creates more of a balance. Thus, the jurisprudence of familial and sexual privacy through the lens of Griswold, Roe, and Lawrence, shows the nature of privacy and how it interacts with state statutes in the court system.

The right to privacy itself was initially noted by a Michigan judge, Thomas Cooley, in 1879 as the right “to be let alone”, something that is inherently felt more strongly as self-autonomy increases.[3] Americans originally considered privacy as “related more to the circumstances of a person’s immediate physical home (essentially the home) than to an assertion of a generalized legal, moral, or natural right” until the past century when privacy jurisprudence began to more fully develop.[4] The modern understanding of privacy is something that became more present as society’s sense of autonomy among individuals increased.[5] It was one thing to have the “theoretical legal right”, but it was quite another to “see that right fully exercised” in the law, which is exactly what the Court did over the 20th Century.[6]

Justices Warren and Brandeis strongly supported an individual ‘right to privacy’ prior to their appointment to the Court, laying the groundwork for the right to privacy’s eventual constitutional justification. Warren and Brandeis explain that human rights to privacy developed out of property rights as “incorporeal rights…opened the wide realm of intangible property, in the products and processes of the mind”, where incorporeal simply means that there is no material existence.[7] Since privacy is not a material being, this concept of property rights protected it similarly. A fundamental understanding of the right to privacy is described as one where “the individual is entitled to decide whether that which is his shall be given to the public”, which is any facet of information one can give or action that an individual can undertake.[8] Warren and Brandeis wanted to justify law through this right to privacy (as evidenced by their paper The Right to Privacy published in 1890 by the Harvard Law Review) but never had the means to do so as the right to privacy was not a judicially constructed right at the time. Although they were justices, this article did not provide any legal precedent as it was simply their legal opinions and reflections that they wanted to share through a law review. Warren and Brandeis argued that there is an inherent feeling of the right to privacy among us and “the question whether our law will recognize and protect the right to privacy…must soon come before our courts for consideration”.[9] What they predicted would happen soon occurred in Griswold v. Connecticut, as the right to privacy was constructed through Justice Douglas’ ‘penumbra analysis’.[10] Although Warren and Brandeis attempted many times to make the right to privacy a right justified and undertaken in the Courts, it is not until Griswold v. Connecticut  that the courts recognized a constitutional interpretation of the individual right to privacy that could be used legally.

Griswold v. Connecticut was a 1965 Supreme Court case that set the precedent for defining the right to privacy and using it in legal matters, making the right to privacy a judicially constructed right justified through other rights iterated in the Constitution. This case was between the appellant Griswold, “the Executive Director of the Planned Parenthood League of Connecticut”, and the state of Connecticut’s statutes that prevented people from using “‘any drug, medicinal article or instrument for the purpose of preventing conception’” which prosecuted “‘any person who assists, abets, counsels, causes, hires or commands another to commit any offense’”.[11] Griswold v. Connecticut examines the “intimate relation of husband and wife and their physician’s role in one aspect of that relation”, specifically the right to have contraceptives. It doesn’t look at the moral aspects of using birth control, but instead looks at the right to privacy that people have with their doctor and their choice of using it or not. Specifically, the right to privacy is tested here as it looks at how people have the right to their choice in using contraceptives and this right was weighed against the state statute that prevented people from using contraceptives, which was ruled as ultimately bearing an insufficient state interest according to Griswold.

Griswold v. Connecticut creates the right to privacy through a penumbra analysis, arguing that “there are additional fundamental rights, protected from government infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments”, such as the right to privacy.[12]  A penumbra is “a body of rights held to be guaranteed by implication in a civil constitution” such as the Bill of Rights, and the analysis that Justice Douglas performs leaves a foundation for the right to privacy.[13] Justice Douglas concludes that the right to privacy emanates from the Bill of Rights though the First Amendment’s right of association, the Third Amendment’s prohibition against the quartering of soldiers without consent of the owner as a facet of individual privacy, the Fourth Amendments affirmation of “the ‘right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’”, the Fifth Amendment’s Self-Incrimination Clause which “enables the citizen to create a zone of privacy”, and the Ninth Amendment’s protection of rights retained by the people.[14] The penumbra analysis explains how the right to privacy emanates from the Constitution and this lack of definition causes tension between state interests and individual interests.

Roe v. Wade, a case decided in 1973 by the United States Supreme Court, especially highlights the tension between state interests and individual interests as it balances individual interests with state interests in its trimester framework.[15]  Roe has become a heated topic in modern politics, yet the current focus has shifted from Roe’s legal basis in the right to privacy of individuals to make a choice with their physician to simply a moral argument about abortion itself among people. Roe’s trimester system outlines when it is a woman’s choice to abort and the state's role in it. Roe decided that for the first trimester of pregnancy, there was no state interest and that the abortion decision must be left to the medical judgement of the pregnant woman’s attending physician”.[16] However, for the second trimester, “the State, in promoting its interest in the health of the mother” may regulate the abortion procedure. For the third trimester , the State may regulate abortion “for the preservation of the life or health of the mother”.[17] The decision of Roe especially outlines the tension between individual interests and state interests as individual autonomy reigns supreme in the first semester but abortions may be regulated in the second and third trimester. The text of Roe especially highlights this as when there is complete individual autonomy in the first trimester, the decision uses the term “pregnant woman”. However, when state interests balance the individual rights by taking interest in the health of the woman, the decision uses the term “mother”.[18] There's a power struggle between when state interests are supreme and rule over individual bodies and vice versa, implying that state interest only exists when a ‘mother' exists. This is the only prominent case in legal history that does not either rule state interests or individual interests superior yet establishes a balance between the two and determines which reign supreme at certain points during the mother's pregnancy. The trimester framework that Roe sets up is the matter of much contention, yet people miss that the case was founded off of the right to privacy between the mother and physician, balanced with state interests. The individual right to privacy defined here is not the mother’s right to make the decision to abort with her physician, one which the state statute previously did not allow, but the privacy. In fact, Supreme Court Justice Blackmun said that the Court acknowledged their “awareness of the sensitive and emotional nature of the abortion controversy”, wanting to avoid the moral aspects of abortion.[19] The state’s moral interest in not allowing abortions is instead balanced through the trimester framework. Privacy as a right is fundamentally balanced with state interests, as per Griswold’s analysis, but the lack of definition of state interests makes it hard to determine how this plays out in law.  The courts have not yet fully defined what exactly ‘compelling-state-interest standards’ are and leaves question as to what this is; a question that can only be answered by looking at past cases that made this balance such as Roe.

The dissenting opinion of Justice Stewart in Griswold in comparison to his view in support of Roe especially provides a clear distinction of the tension between individual and state interests. In Griswold, Justice Stewart viewed the Connecticut law to be one that was “uncommonly silly” yet when “asked to hold that it violates the United States Constitution” he said “that I cannot do”.[20] While he acknowledges that the that the decision of Griswold refers to “the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth” amendments, “the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law”.[21] Justice Stewart doesn’t find anything to invalidate the Connecticut law and “can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court”.[22] Justice Stewart knows that the state statute is wrong, but can’t find any constitutional backing to reject the statute. His fellow justices, however, constructed the judicial right to privacy through a penumbra analysis. When deciding Roe, Justice Stewart again acknowledges his original claim that “the Connecticut law did not violate any provision…of the Constitution” (in reference to Griswold).[23] He instead bases his decision in Roe on the Due Process Clause of the Fourteenth Amendment (which states that no person shall be “deprived of life, liberty, or property without due process of law”) and the freedom of personal choice in matters of marriage and family life.[24] Justice Stewart has a hard time balancing state statutes that he thinks are “uncommonly silly” with an individual right to privacy, showing the tension as state interests are poorly defined. He can’t dismiss these statutes on being “uncommonly silly” but has no constitutional definition of the state interests to base his decision off of. While Justice Stewart had conflicting opinions on Griswold and Roe, the foundation of his decisions rested on the constitutional grounding of both an individual right to privacy and what exactly state interests are, showing the hard nature for courts to weigh these two rights. 

The tension between state interests and individual interests is still present in recent court cases, with Lawrence v. Texas being a prime example as it was based on sexual activity in a household without involving a potential third party (i.e. a baby). While Griswold and Roe talked about theoretical rights between a doctor and their patient, Lawrence involved a case of two grown individuals and their choices in sexual intimacy. Lawrence was a case where a man (Lawrence) was “engaging in a private, consensual sexual act” with another male “in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct”.[25] Lawrence ends up affirming the right to privacy of individuals in the realm of sexual intimacy as its decision cites Griswold as establishing “the right to make certain decisions regarding sexual conduct”.[26] While Roe balanced state interests against individual rights, Lawrence found that “the State is not omnipresent in the home” and that “The laws involved in Bowers…are, to be sure, statues that purport to do no more than prohibit a particular sexual act”.[27] The courts again found an insufficient state interest in limiting this individual right to privacy. The framing of Lawrence was an evolution in how the right to privacy is thought of by the justices and applied to cases as it instead becomes a discussion surrounding state interests surrounding sexual activity itself rather than a discussion on medical privacy.

In conclusion, the right to privacy is a judicially constructed right with implications on familial and sexual law that interact with the intentions of state statutes. Carl Schneider, the Chauncey Stillman Professor of Law at the University of Michigan, suggests that on the state-interest side, “courts have had problems articulating and applying a test” and that the Supreme Court has failed to create a “satisfactory standard of review…decide what its chosen standard of review means…apply that standard sensitively and sensibly”.[28] Griswold provides us with a basis for the right to privacy by providing the first Court ruling that validates the right to privacy and finds its roots in a penumbra of rights. Roe uses the right to privacy that Griswold so creates and applies it to a trimester framework that is decided and balances both state interests and individual rights and choices. The right to privacy has created many implications for family law and in order to create a steadier basis for the right to privacy, there needs to be an explanation of what exactly ‘compelling state-interest’ is. This is especially important as the right to privacy is not explicitly grounded in the Constitution and needs a strong basis. The right to privacy conversation has grown out of state interests in one’s household, but also to individuals’ rights to privacy in the home and even to the internet.

REFERENCES

[1]  "Constitution of the United States - We the People." Constitution for the United States - We the People. Accessed April 15, 2017. http://constitutionus.com/.

[2] "Griswold v. Connecticut 381 U.S. 479 (1965)." Justia Law. Accessed April 15, 2017. https://supreme.justia.com/cases/federal/us/381/479/case.html.

[3] Johnson, John W. Griswold v. Connecticut: birth control and the constitutional right of privacy. Lawrence, Kan.: University Press of Kansas, 2005. 

[4] "Lawrence v. Texas." Cornell LII. March 26, 2003. Accessed April 19, 2017. https://www.law.cornell.edu/supct/html/02-102.ZS.html.

[5] "Penumbra." Merriam-Webster. Accessed April 19, 2017. https://www.merriam-webster.com/dictionary/penumbra.

[6] “Roe v. Wade 410 U.S. 113 (1973).” Justia Law. Accessed April 15, 2017. https://supreme.justia.com/cases/federal/us/410/113/case.html.

[7] Schneider, Carl E. "State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social Issues." Law and Contemporary Problems51, no. 1 (1988): 79-122. Accessed April 15, 2017. doi:10.2307/1191716.

[8] Warren, Samuel D., and Louis D. Brandeis. "The Right to Privacy." Harvard Law Review4, no. 5 (1890): 193-99. doi:10.2307/1321160.

7.  Warren, Brandeis, “The Right to Privacy,” 194.

8.  Ibid, 199.

9.  Ibid, 196.

10.  "Griswold v. Connecticut 381 U.S. 479 (1965).”. 4-5.

13.  "Penumbra." Merriam-Webster. Accessed April 19, 2017.

14.  "Constitution of the United States - We the People." Constitution for the United States - We the People. Accessed April 15, 2017. http://constitutionus.com/.

15.  Schneider, "State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social Issues." 7.

16.  “Roe v. Wade 410 U.S. 113 (1973).” Justia Law. Accessed April 15, 2017. https://supreme.justia.com/cases/federal/us/410/113/case.html. 3

17.  Ibid.

18.  Ibid.

22.  Ibid, 57.

26.  Ibid, 8.

28.  Schneider, "State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social Issues." 5.