Constitutional Law

Privacy Rights and Personal Autonomy

The U.S Constitution safeguards the rights of Americans to privacy and personal autonomy. Although the Constitution does not explicitly provide for such rights, the U.S. Supreme Court has interpreted the Constitution protect these rights, specifically in the areas of marriage, procreation, abortion, private consensual homosexual activity, and medical treatment.

State and federal laws may limit some of these rights to privacy, as long as the restrictions meet tests that the Supreme Court has set forth, each involving a balancing of an individual's right to privacy against the state's compelling interests. Such compelling interests include protecting public morality and the health of its citizens and improving the quality of life.

The Right to Marital Privacy

In Griswold v. Connecticut, 381 U.S. 479 (1965), the State of Connecticut convicted two persons as accessories for giving a married couple information on and a prescription for a birth-control device. The U.S. Supreme Court overturned the convictions and found the Connecticut law to be unconstitutional because it violated a right to privacy in the marital relation.

The Court stated that even though the Constitution did not specifically protect the right of privacy, a line of U.S. Supreme Court cases suggested that specific guarantees in the Bill of Rights had penumbras, which covered the marital relationship.

The Right to Procreation

In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Supreme Court expanded the scope of sexual privacy rights when it struck down a Massachusetts law banning the sale of contraceptives to unmarried couples. The decision in this case extended constitutional protection to all procreative sexual intercourse, not just sex between married partners.

The Right to Abortion

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court found a fundamental right of privacy under the due process clause of the Fourteenth Amendment. The Court interpreted this right to cover women seeking to terminate their pregnancies, but only before a fetus is viable outside the womb. This period is generally the first trimester of a pregnancy. Accordingly, the government must justify any limit it places on abortions by providing a compelling state interest. Once a fetus is viable outside of the womb, the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy.

While states cannot prohibit abortions during the first trimester, they can regulate abortions within that state as long as the restrictions do not create an "undue burden" on a woman's ability to obtain an abortion. Courts then often have to decide which limitations constitute an undue burden. For example, courts have held that a requirement for a 24-hour waiting period for an abortion is not an undue burden, nor is a requirement that abortions be performed by licensed physicians. Courts have struck down spousal consent and notification laws as unconstitutional, but have permitted some parental notification regulations. Also, courts have ruled that the right to abortion is an individual privacy right, and the government does not have to provide or pay for abortions.

Right to Private Consensual Homosexual Activity

The constitutional right to privacy now grants privacy protection to adults who engage in private consensual homosexual activity. In 1986, a Georgia statute that made same-sex sodomy illegal was upheld in Bowers v. Hardwick, 478 U.S. 186. But in 2003, the Supreme Court overturned Bowers in Lawrence v. Texas, 539 U.S. 558, striking down the criminal prohibition of homosexual sodomy in Texas. Lawrence v. Texas held that the freedom of adults to engage in consensual sexual acts is a right protected by substantive due process under the Fourteenth Amendment. This decision invalidated similar laws throughout the United States that criminalized private homosexual activity between consenting adults.

Right to Pornography

The Court has not granted a complete right of personal autonomy in the area of pornography, but some privacy has been allowed. In Stanley v. Georgia, 394 U.S. 557 (1969), the Supreme Court invalidated all state laws that prohibit the private possession of obscene materials, based upon rights granted by the First and Fourteenth Amendments. Protection for the private possession of obscene materials is limited to those materials depicting adults over age 18.

Right to Refuse Medical Treatment

The Supreme Court has held that adults have the right to personal autonomy in matters relating to their own medical care. Adults, as long as they are competent to understand their decision, have the right to refuse medical treatment, even life-saving medical treatment, though a state may require clear and convincing evidence that a person wanted treatment ended before it allows termination. A state may restrict family members from terminating treatment for another, because this right belongs to each individual. The court has not extended this right to allow physician-assisted suicide.