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Although several state constitutions do list the right to privacy as a protected right, the explicit recognition by the Supreme Court of a right to privacy in the U.S. Constitution emerged only in the middle of the twentieth century. In 1965, the court spelled out the right to privacy for the first time in
Griswold v. Connecticut , a case that struck down a state law forbidding even married individuals to use any form of contraception.
Griswold v. Connecticut , 381 U.S. 479 (1965) Although many subsequent cases before the Supreme Court also dealt with privacy in the course of intimate, sexual conduct, the issue of privacy matters as well in the context of surveillance and monitoring by government and private parties of our activities, movements, and communications. Both these senses of privacy are examined below.
Although the
Griswold case originally pertained only to married couples, in 1972 it was extended to apply the right to obtain contraception to unmarried people as well.
Eisenstadt v. Baird , 405 U.S. 438 (1972). Although neither decision was entirely without controversy, the “sexual revolution” taking place at the time may well have contributed to a sense that anti-contraception laws were at the very least dated, if not in violation of people’s rights. The contraceptive coverage controversy surrounding the Hobby Lobby case shows that this topic remains relevant.
The Supreme Court’s application of the right to privacy doctrine to abortion rights proved far more problematic, legally and politically. In 1972, four states permitted abortions without restrictions, while thirteen allowed abortions “if the pregnant woman’s life or physical or mental health were endangered, if the fetus would be born with a severe physical or mental defect, or if the pregnancy had resulted from rape or incest”; abortions were completely illegal in Pennsylvania and heavily restricted in the remaining states.
See Rachel Benson Gold. March 2003. “Lessons from Before Roe: Will Past be Prologue?”
The Guttmacher Report on Public Policy 6, No. 1. https://www.guttmacher.org/pubs/tgr/06/1/gr060108.html (March 4, 2016). On average, several hundred American women a year died as a result of “back alley abortions” in the 1960s.
The legal landscape changed dramatically as a result of the 1973 ruling in
Roe v. Wade ,
Roe v. Wade , 410 U.S. 113 (1973). in which the Supreme Court decided the right to privacy encompassed a right for women to terminate a pregnancy, at least under certain scenarios. The justices ruled that while the government did have an interest in protecting the “potentiality of human life,” nonetheless this had to be balanced against the interests of both women’s health and women’s right to decide whether to have an abortion. Accordingly, the court established a framework for deciding whether abortions could be regulated based on the fetus’s viability (i.e., potential to survive outside the womb) and the stage of pregnancy, with no restrictions permissible during the first three months of pregnancy (i.e., the first trimester), during which abortions were deemed safer for women than childbirth itself.
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