No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Whalen v. Roe1 may indicate the Court’s willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs with abuse potential, and a centralized computer record-keeping system through which prescriptions, including patient identification, could be stored. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to “pose a sufficiently grievous threat to either interest to establish a constitutional violation.” 2 Lower court cases have raised substantial questions as to whether this case established a “fundamental right” to informational privacy, and instead found that some as yet unspecified balancing test or intermediate level of scrutiny was at play.3
More than two decades after Whalen, the Court remains ambivalent about whether such a privacy right exists. In its 2011 decision in NASA v. Nelson, the Supreme Court unanimously ruled against 28 NASA workers who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights.4 In so doing, the Court assumed without deciding that a right to informational privacy could be protected by the Constitution and instead held that the right does not prevent the government from asking reasonable questions in light of the government’s interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures.5 As a result, the questions about the scope of the right to informational privacy suggested by Whalen remain.
- 429 U.S. 589 (1977).
- 429 U.S. at 598–604. The Court cautioned that it had decided nothing about the privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure “arguably has its roots in the Constitution,” at least “in some circumstances,” the Court seemed to indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the Court’s careful circumscription of the privacy issue through balancing does to the concept is unclear after Nixon v. Administrator of General Services, 433 U.S. 425, 455–65 (1977) (stating that an invasion of privacy claim “cannot be considered in abstract [and] . . . must be weighed against the public interest” ). But see id. at 504, 525–36 (Chief Justice Burger dissenting), and 545 n.1 (Justice Rehnquist dissenting).
- See, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) ( “. . . we believe that the balancing test, more common to due process claims, is appropriate here.” ).
- See 562 U.S. 134 (2011).
- Id. at 148–56.
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