Sources of Privacy Rights

• First, right to privacy based on Constitutional Amendments

• Second, right to privacy falling under “liberty” of 14th Amendment

• Third, state and federal statutes or state courts may recognize certain privacy rights

Boyd v. US, 1886Boyd v. US, 1886 First suggestion by the Supreme Court of First suggestion by the Supreme Court of

the Right to Privacythe Right to Privacy 44thth Amendment prohibition against Amendment prohibition against

unreasonable search and seizure did not unreasonable search and seizure did not just apply to invasions of someone’s home– just apply to invasions of someone’s home– held that they appliedheld that they applied “ “to all invasions on the part of a man’s home to all invasions on the part of a man’s home

and the privacies of life. It is not the breaking of and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, his doors, and the rummaging of his drawers, that constitute the essence of the offense, but it that constitute the essence of the offense, but it is the invasion of his indefeasible right of is the invasion of his indefeasible right of personal security, personal liberty, and private personal security, personal liberty, and private property.”property.”

Katz v. US, 1967 & Katz v. US, 1967 & Terry v. Ohio, 1968Terry v. Ohio, 1968

Supreme Court held 4Supreme Court held 4thth Amendment Amendment applies to any government search or applies to any government search or seizure that interferes with a persons seizure that interferes with a persons “reasonable expectations of privacy”“reasonable expectations of privacy”

NAACP v. Alabama – Supreme Court acknowledged aspects of Privacy in 1st Amendment

Right to Privacy

• Right to privacy based on the due process clause of the 14th Amendment

What is liberty?

• The Due Process clause of the Fourteenth Amendment states “Nor shall any State deprive any person of life, liberty or property without due process of law”

Right to Privacy =Right to Personal Autonomy

• Generally the Court has treated most of the interest relating to child rearing, procreation, marriage and medical treatment as falling within the broad category of the “right to privacy”.

Meyer v. Nebraska, 1923

• In Meyer, SC held the term “liberty” as used in Fourteenth Amendment included right of students to acquire knowledge

Pierce v. Society Sisters, 1925• In Pierce, decision rested on the “liberty of parents

and guardians to direct the upbringing and education of children under their control”

Skinner v. Oklahoma, Skinner v. Oklahoma, 19421942

Oklahoma law stated that a person convicted Oklahoma law stated that a person convicted two or more times for “felonies involving moral two or more times for “felonies involving moral turpitude” would be sterilizedturpitude” would be sterilized

Supreme Court overturned the law:Supreme Court overturned the law: ““We are dealing here with legislation which involves one of the We are dealing here with legislation which involves one of the

basic civil rights of man. Marriage and procreation are basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The fundamental to the very existence and survival of the race. The power to sterilize if exercised may have subtle, far-reaching power to sterilize if exercised may have subtle, far-reaching and devastating effects. . . His is forever deprived of a basic and devastating effects. . . His is forever deprived of a basic liberty.”liberty.”

Griswold v. Connecticut Right to Privacy found in 1st, 3rd, 4th, 5th and 9th Amendments and applied to states under 14th

Eisenstadt v. Baird, 1972

• Supreme Court overturned a Supreme Court overturned a Massachusetts law forbidding the Massachusetts law forbidding the use of contraceptives by use of contraceptives by unmarried individualsunmarried individuals

History of Abortion Rights in History of Abortion Rights in the United Statesthe United States

• Until mid 1800sUntil mid 1800s Most states permitted abortions – except after quickening – but Most states permitted abortions – except after quickening – but

even then it was just a minor offenseeven then it was just a minor offense

• After the Civil War – by 1910After the Civil War – by 1910 Every state – except Kentucky – had made abortion a felony Every state – except Kentucky – had made abortion a felony

(persistent campaigning of anti-abortionists)(persistent campaigning of anti-abortionists)

• By late 1960sBy late 1960s 14 states had changed laws to permit abortion when the woman’s 14 states had changed laws to permit abortion when the woman’s

health was in danger, where there was a likelihood of fetal health was in danger, where there was a likelihood of fetal abnormality, and when the woman was a victim of rape or incestabnormality, and when the woman was a victim of rape or incest

Alaska, Hawaii, New York and Washington – actually repealed all Alaska, Hawaii, New York and Washington – actually repealed all criminal penalties for abortions performed early in the pregnancycriminal penalties for abortions performed early in the pregnancy

United States v. Viutch, United States v. Viutch, 19711971

Supreme Court upheld a District of Supreme Court upheld a District of Columbia law allowing abortions not Columbia law allowing abortions not only to save a woman’s life, but also to only to save a woman’s life, but also to maintain her physical well beingmaintain her physical well being

The Court did not rule on whether a The Court did not rule on whether a woman’s right to privacy included her woman’s right to privacy included her decision to terminate an unwanted decision to terminate an unwanted pregnancypregnancy

Roe v. Wade, 1973Roe v. Wade, 1973

Renquist Court –right to privacy applied Renquist Court –right to privacy applied to areas involving reproductive to areas involving reproductive freedomfreedom

Right to Privacy

• The last source of privacy rights includes state and federal statutes provided for a right to privacy or state court recognition of privacy rights

1890 – 1941 – State Courts in 12 1890 – 1941 – State Courts in 12 States recognized a right to States recognized a right to privacyprivacy

By 1956 – The number increased By 1956 – The number increased to 18to 18

Be 1960 – More than 36 States Be 1960 – More than 36 States recognized the right to privacyrecognized the right to privacy