In the United States, the Supreme Court first recognized the right to privacy in Griswold v. Connecticut (1965). Before Griswold, however, Louis Brandeis (prior to becoming a Supreme Court Justice) co-authored a Harvard Law Review article called “The Right to Privacy,” in which he advocated for the “right to be let alone.”
Griswold and the Prenumbras
In Griswold, the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution. The Court found that when one takes the penumbras together, the Constitution creates a “zone of privacy.” While the holding in Griswold found for a right to privacy, it was narrowly used to find a right to privacy for married couples, and only with regard to the right to purchase contraceptives.
Justice Harlan’s Concurrence in Griswold
Also important to note is Justice Harlan’s concurring opinion in Griswold, which found a right to privacy derived from the Fourteenth Amendment. In his concurrence, he relies upon the rationale in his dissenting opinion in Poe v. Ullman (1961). In that opinion, he wrote, “I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life.”
In privacy cases post-Griswold, the Supreme Court typically has chosen to rely upon Justice Harlan’s concurrence rather than Justice Douglas’s majority opinion. Eisenstadt v Baird (1971), Roe v. Wade (1972), and Lawrence v. Texas (2003) are three of the most prolific cases in which the Court extended the right to privacy. In each of these cases, the Court relied upon the Fourteenth Amendment, not penumbras.
Extending the Right to Privacy
In Eisenstadt, the Supreme Court decided to extend the right to purchase contraceptives to unmarried couples. More importantly, however, the Court found that “the constitutionally protected right of privacy inheres in the individual, not the marital couple.”
In Roe, the Supreme Court used the right to privacy, as derived from the Fourteenth Amendment, to extend the right of privacy to encompass a woman’s right to have an abortion: “This right of privacy . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
In Lawrence, the Supreme Court used the Fourteenth Amendment to extend the right to privacy to “persons of the same sex [who choose to] engage in . . . sexual conduct.” Relying upon the Fourteenth Amendment’s guarantee of due process, the Court held: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”