A A A

Constitutional Right to Privacy

The right to privacy has evolved to protect the freedom of individuals to choose whether to perform certain acts or subject themselves to certain experiences. This personal autonomy has grown into a liberty protected by the due-process clause of the 14th Amendment. However, this liberty is narrowly defined and generally protects only privacy of family, marriage, motherhood, procreation and child rearing.

The personal-autonomy dimension of the right to privacy has been developed overwhelmingly in cases dealing with reproductive rights, and accordingly it is most firmly established in this area. The Supreme Court first recognized an independent right of privacy within the implied protection of the Bill of Rights in Griswold v. Connecticut. In this case, a right of marital privacy was invoked to void a law prohibiting contraception. Later cases expanded upon this fundamental right, and in Roe v. Wade, the right to privacy was firmly established under the Due Process Clause of the 14th Amendment. The court classified this right as fundamental and thus required any governmental infringement to be justified by a compelling state interest.

Roe held that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability. Before viability, it was held that the mother's liberty of personal privacy limits state interference because of the lack of a compelling state interest.

The personal-autonomy aspect of the right to privacy has limits, although these are always changing. In 1986, for example, a law criminalizing same-sex sodomy was upheld in Bowers v. Hardwick. The Court held that not all private, consensual sexual activity is insulated from the state. At the time, the same-sex activities in question were not granted inclusion in the due-process–protected categories of relationships. Today, however, it appears that opinions have changed. Bowers was overturned in Lawrence v. Texas in 2003, thereby recognizing a shifting public opinion about same-sex relationships.

As activities become further removed from reproduction and intimacy, the right to privacy weakens. Pornography is an area where the court has been reluctant to completely grant the liberty of personal autonomy, although some privacy has been allowed.

The First, Fourth and Fifth amendments have been utilized to varying degrees of success to protect privacy in these gray areas of activity. The court's preference for a case-by-case approach to the right of privacy in as much as it protects personal autonomy, combined with ever-changing public opinion on the status of various relationships and activities, makes a succinct statement about the boundaries of the right of privacy nearly impossible.

Last update: Sept. 25, 2008

The content on this page was developed in partnership with the Legal Information Institute, Cornell Law School.