3.9 - Amendments: Due Process and the Right to Privacy
The Constitution and Implied Privacy
The right to privacy isn't written anywhere in the Constitution, despite what most people assume. Still, the Supreme Court ultimately decided it exists.
- Unenumerated rights: rights that aren't listed in the Constitution but that the Supreme Court has still recognized as protected. The right to privacy is the biggest example.
- Two main arguments for them:
- Implied by other amendments: some amendments only make sense if a right to privacy already exists, like the Fourth Amendment's protection of your home and belongings (see Griswold below).
- The Ninth Amendment: it says that listing certain rights in the Constitution doesn't deny or weaken other rights the people keep.
- Substantive due process: the idea that the Due Process Clauses protect certain basic rights themselves, not just fair procedures. The Court uses it to ask whether a law is an arbitrary infringement on a person's liberty, no matter how fairly the law is enforced. Compare procedural due process (Topic 3.8), which is about the government using fair methods.
Establishing the Implied Right
Griswold v. Connecticut (1965) established the implied right to privacy. Connecticut banned the use of birth control, even by married couples. Estelle Griswold, who ran Planned Parenthood in Connecticut, and a doctor were convicted for giving married couples information and birth control. The Court ruled 7-2 that the law violated a right to privacy in marriage. Justice Douglas wrote that several amendments together create "zones of privacy."
- How it was implied: the Court pieced it together from several amendments:
- First Amendment: freedom of association protects your privacy in the groups you join and the people you associate with.
- Third Amendment: protection from quartering troops.
- Fourth Amendment: protection against unreasonable searches implies an expectation of privacy.
- Fifth Amendment: the right not to incriminate yourself creates a zone of privacy the government can't force you to give up.
- Ninth Amendment: a reminder that unenumerated rights still belong to the people.
- Incorporation: the Court used the 14th Amendment to apply this new privacy right to the states.
Controversy Over the Right
Controversial for two reasons:
- It's not explicitly written, only implied.
- It was used to establish a woman's right to an abortion in Roe v. Wade (1973), which a significant portion of the country strongly disagreed with. In 2022, the Court overturned Roe (see below).
The core debate remains whether an implied right to privacy should exist at all, and how far it should extend.
From Roe v. Wade to Dobbs v. Jackson
- Roe v. Wade (1973): the Court struck down a Texas law that banned almost all abortions, ruling 7-2 that the right to privacy protected by the 14th Amendment's Due Process Clause covers a woman's decision to have an abortion. This was substantive due process at work: the Court decided the law itself went too far. Planned Parenthood v. Casey (1992) later kept Roe's core holding but let states pass restrictions that didn't place an "undue burden" on women seeking an abortion.
- Dobbs v. Jackson Women's Health Organization (2022): Mississippi banned most abortions after 15 weeks of pregnancy. In a 6-3 decision, the Court upheld the law, and five justices voted to overturn Roe and Casey, holding that the Constitution does not confer a right to abortion. The majority (Justice Alito) reasoned that abortion isn't mentioned in the Constitution and isn't a right "deeply rooted in this Nation's history and tradition."
- Effect: Dobbs left the regulation of abortion to legislatures. Each state now sets its own abortion laws, so some ban most abortions while others protect access.
- Still debated: the majority said its ruling only covers abortion, not other privacy cases like Griswold. But which actions the right to privacy and substantive due process protect continues to be debated.