right of privacy: personal autonomy
The right of privacy has evolved to protect the freedom of individuals to choose whether or not 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 only protects privacy of family, marriage, motherhood, procreation, and child rearing. There have been attempts to further extend the right of privacy under the 1st, 4th, and 5th Amendments to the U.S. Constitution; however, a general right to personal autonomy has yet to take hold beyond limited circumstances.
The personal autonomy dimension of the right of privacy has been overwhelmingly developed in cases dealing with reproductive rights. The Supreme Court first recognized an independent right of privacy within the 'penumbra' (fringe area) of the Bill of Rights in Griswold v. Connecticut, 381 U.S. 479 (1965). 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, 410 U.S. 113 (1973), the right of privacy was firmly established under the Due Process Clause of the 14th Amendment. The court classified this right as fundamental, thus requiring 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, the mother's liberty of personal privacy limits state interference due to the lack of a compelling state interest.
The personal autonomy aspect of the right of privacy has limits. In 1986, a law criminilizing same sex sodomy was upheld in Bowers v. Hardwick, 478 U.S. 186 (1986). 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. However, Bowers was overturned in Lawrence v. Texas (2003), holding that the Bowers court viewed liberty too narrowly and grounding the right with a notion of how personal and intimate nature of the conduct.
As activities become further removed from reproduction and intimacy, the right of privacy weakens and becomes less fundamental. Pornography is an area where the court has been reluctant to completely grant the liberty of personal autonomy, although some privacy has been allowed: see Stanley v. Georgia, 394 U.S. 557 (1969) and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
The 1st, 4th, and 5th Amendments to the U.S. Constitution 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.
menu of sources
- Search U.S. Supreme Court Decisions
- Search U.S. Circuit Courts of Appeals Decisions
- Search LII Preview/ Analyses of Supreme Court Cases
- 1st Amendment to U.S. Constitution
- 4th and 5th Amendments to U.S. Constitution
- 14th Amendment to U.S. Constitution
- Search the Annotated Constitution of the United States
U.S. Supreme Court: Historic Right of Privacy-Personal Autonomy Decisions
- Griswold v. Connecticut, 381 U.S. 479 (1965)
- Stanley v. Georgia, 394 U.S. 557 (1969)
- Roe v. Wade, 410 U.S. 113 (1973)
- Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)
- Whalen v. Roe, 429 U.S. 589 (1977)
- Bowers v. Hardwick, 478 U.S. 186 (1986)
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
- Lawrence v. Texas (2003)
State Judicial Decisions
- N.Y. Court of Appeals:
- Appellate Decisions from Other States
Good Starting Point in Print:
- Turkington & Allen-Castellitto Privacy Law: Cases & Materials, West Group (2002)