Do U.S. Citizens Have A Right To Privacy? (Yes, But It's Tenuous)

I think most Americans think they have a constitutional right to privacy. But it's not guaranteed. There is no provision or amendment in the U.S. Constitution that guarantees a right to privacy. That right, as it currently exists, has been created by liberal Supreme Court justices out of other rights explicitly granted in the Constitution.

The Court then used this created right to guarantee married couples the right to purchase contraception (Griswold), the right of unmarried people to purchase contraception (Eisenstadt), the right to an abortion (Roe), and the right of same-sex couples to have sex (Lawrence).

Unfortunately, the right to privacy is not recognized by all Supreme Court justices. The right-wingers on the current Court denied that right in Dobbs (which overturned the right to an abortion). And some justices have said they would like to revisit the decisions in Griswold, Eisenstadt, and Lawrence. In other words, they want to effectively gut the right to privacy in the United States.

The following post is a discussion of the right to privacy by the Cornell Law School:

There is a long and evolving history regarding the right to privacy in the United States. In the context of American jurisprudence, 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 titled "The Right to Privacy," in which he advocated for the "right to be let alone."

​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.” The right to privacy established in Griswold was then narrowly used to find a right to privacy for married couples, regarding the right to purchase contraceptives. 

Additionally, it is important to note 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 dissentingopinion 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), and Lawrence v. Texas (2003) are two 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. 

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 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."

When the Supreme Court first decided Roe v. Wade, the Court used the right to privacy, as derived from the Fourteenth Amendment, and extended the right to encompass an individual’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." However, after the Dobbs decision, the Court overturned both Roe and Casey. Consequently, the right to abortion no longer falls under the broader right to privacy. Additionally, the Dobbs opinion mentioned potentially examining Griswold and Eisenstadt in the future. While it is unclear to what extent that may have on the right to privacy in the current time; it is likely that the case law around this right will continue to evolve with more recent Supreme Court decisions.