Right to Privacy

The general (although disputed) consensus is that Lochner was wrong to protect a fundamental right to economic freedom, but was correct in assuming that there are fundamental rights. In other words, Lochner’s analysis may still be valid for other potential fundamental rights, such as the right to privacy. Griswold v. Connecticut was the first main case that outlined this reasoning.

Griswold v. Connecticut

381 U.S. 479 (1965).


Is there a fundamental right to privacy? If so, is the statute a violation of that right?


A statute that infringes on the right to privacy is a violation of constitutional protections. Strict Scrutiny will be the standard applied.


As inferred through the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, there is a fundamental right to privacy which prevents states from preventing married couples using contraceptives. Thus, the statute is unconstitutional and the lower court reversed.


Griswold was the executive director of Planned Parenthood who was charged and fined with distributing contraceptives to married couples in violation of Connecticut law. The statute preventing anyone from using contraceptives.


This case is full of several opinions: a majority opinion, three concurring opinions, and two dissenting opinions. Each are explored below.


(Penumbras Opinion) The majority opinion focuses on how several cases have peripheral rights. For instance, the right to choose which school you attend; right to teach, learn, and write; the right to associate with others, are not explicitly mentioned in the Constitution but are inferred protections largely of the First Amendment.

Likewise, the right to privacy can be inferred from several Amendments such as the Third, Fourth, Fifth, and Ninth, all made possible through the Due Process Clause of the Fourteenth. Once it is confirmed that there is a fundamental right to privacy, then the statute is a clear violation of that right.


(9th Amendment) The Goldberg concurrence focuses primarily on the Ninth Amendment. This amendment reads that there were other rights that the framers did not put in the constitution but still should be protected. Although the Ninth Amendment does not provide these rights, those rights can be provided through careful analysis of the Fifth and Fourteenth Amendments. Essentially then, the challenge becomes, “how do we determine which is a fundamental right.” This question is answered by evaluating the “traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental.” As a side note, this is the analysis that was recently conducted in Dobbs when determining that there is no fundamental right to abortion.


(Substantive Due Process) The Harlan view agrees with the judgment but believes that the Fourteenth Amendment protects more rights than those simply attached to the Bill of Rights. The concurrence also acts as a rebuttal to the dissents. Specifically, if the dissent is right that the state’s are able to infringe on this right to privacy, then state’s would be able to pass laws that could limit the number of children couples can have. Harlan is also of the opinion however that this right is not absolute. He would not protect adultery, homosexuality, fornication and incest. This case is the example of how substantive due process applies for right to privacy, although it does not apply for economic interests. His belief is that strict scrutiny should be applied for these basic liberties that are fundamental for an ordered society.


Justice White appears not to adopt the fundamental right to privacy view but concurred in judgment. His reasoning is that the means do not match the ends. He fails to see how the ban furthers the state goal of preventing illicit sexual relationships (this ban cannot be properly enforced to reach the goal).


Justice Black states that there is no right to privacy written in the Constitution. By making this inference of several Amendments, it actually reduces the value of those Amendments by protecting a blanket term, instead of those specified protections. The biggest difference between the “right to privacy” and the cases cited by the majority is that those cases were actually tied to a specific portion of an Amendment. Here, the right to privacy is free flowing, able to attach to whatever the court’s sees fit. Although the majority denies it, this is a return to the Lochner era.

Finally Justice Stewart says that this is simply a “silly law.” Despite the silliness of the law, the court was asked to determine the constitutionality. There is nothing in the constitution that would protect individuals from what the law is trying to do. Although silly and unenforceable, it is the responsibility of the people to make the adjustments to the legislature, not the courts.

Additional Notes

After Griswold, the court expanded this theory of privacy from married couples to unmarried couples (See Eisenstadt v. Baird, 405 U.S. 438 (1972)). The reasoning is that the right is an individual right, which means that it applies to singles in addition to couples.


An important distinction to remember is that the right to abortion was initially framed (in Roe v. Wade) under the umbrella of a right to privacy. That is not the case anymore and all the case law since has evaluated whether abortion can survive as its own fundamental right.

Roe v. Wade

410 U.S. 113 (1973).


Is obtaining an abortion protected under the Constitution?


There is a substantial state interest in limiting abortion only after viability. As such, state’s are not able to regulate abortion prior to viability. After viability, they may limit some abortions. Once in the third trimester, they can limit all abortions.


There is a right to abortion protected by the Constitution.


Ultimately, this is the first true substantive due process case. The Harlan concurrence in Griswold is the primary method of constitutional interpretation in this case.

Texas arguments:

  1. A fetus is a person. The counterargument is that constitutionally, the word person did not refer to a fetus.
  2. The legislature can determine that life begins at conception.

The largest issue with this case is that Blackman says that it is not the responsibility of the courts to resolve the issue of abortion, but then proceeds to do so.


  • Abortion before viability is evaluated with strict scrutiny.
  • This the first true substantive due process case.

Planned Parenthood of Southeastern Pennsylvania v. Casey

505 U.S. 833 (1992).

Casey was both an adherence and divergent from precedent. This adhered to Roe because it reaffirmed that there was a right to abortion. The reasoning for this holding was stare decises. However, this diverged from Roe because it rejected the trimester framework.

Ultimately, this was an attempt by the court to compromise. The state still had an interest after viability to do whatever they liked to restrict abortion. However, before viability, the court recognized that the state still had an interest before viability. Thus, the state could restrict abortion before viability as long as the restriction did not impose an undue burden on women. For instance, the state could require informed consent before viability, which would have failed under a strict scrutiny standard. The issue with the undue burden test is that there is no criteria to establish what is due and undue. So, every law would have to follow the procedure just to see what the courts say about it.

Dobbs v. Jackson


Should Roe and Casey be overturned?


The states can use rational basis when evaluating laws challenging abortion.


Roe and Casey are overturned. Consequently, States have the authority to pass abortion restrictions if their laws have a rational basis.


Mississippi passed a law that restricted abortion access after a gestation of fifteen weeks. The Jackson Women’s Health Organization, and one of the abortion doctors, sued the state claiming that the law was unconstitutional in light of Roe v. Wade and Planned Parenthood v. Casey. Specifically, they claimed that the statute put an undue burden on women who sought abortions. Up to this point, the undue burden test was the standard utilized by the Supreme Court of the United States.

There was no doubt that the Mississippi law would have failed the undue burden test. Therefore, rather than requesting that the court lower the standard, both parties asked the court to either affirm or overturn Roe and Casey.


The Dobbs majority opinion can be summarized into three main parts. First, an analysis describing why abortion is not a constitutional right. Second, an analysis of why Roe and Casey are overturned. Third, a rebuttal to the dissent and Chief Justice Robert’s concurrence.


Justice Alito begins by saying that there is no explicit right to abortion written in the Constitution. Occasionally, the Supreme Court has allowed certain rights to be read implicitly into the Constitution under a certain set of circumstances. First, if the “right” is rooted in the Nation’s history and tradition as part of an “ordered liberty.” Second, if the “right” is established by other similar precedents.

To show that the right was not rooted in our nation’s history, Justice Alito described the common law and statutory history of abortion in the United States. Abortion was a crime after quickening and many common law resources also made abortion a crime before quickening, especially when the practice resulted in the woman losing her life. When the Fourteenth Amendment was passed, twenty-six of the thirty-seven States had laws restricting abortion. By the time the Court provided the opinion in Roe, at least thirty of the States restricted abortion in all stages of the pregnancy. All but six of the States restricted abortion in at least some way. Roe ignored or misstated this history in its opinion.

Further, Justice Alito states that the right to an abortion has not been established by other precedents. He argues that abortion is strictly different from other rights protected by the Fourteenth Amendment because abortion is a moral issue regarding a “potential life.” All other rights protected by the Fourteenth Amendment including the right to contraceptives, same-sex marriage, and other rights do not involve this same moral dilemma. The claim of a right to define one’s concept of existence is too broad and would allow (in the extreme sense) the right to illicit drugs and prostitution.


Next, Justice Alito outlined the reasons why Roe and Casey should be overturned. There are 5 reasons. First, the nature of the court’s error was extreme. Second, the quality of the reasoning was exceedingly weak. Third, the trimester framework and the undue burden test are unworkable. Fourth, the decision led to adverse effects on other areas of law. Fifth, there are no reliance interests that need to be protected.

First, the nature of the court’s error was extreme. Specifically, the court took a legislative debate and declared a winner. In doing so, the court took on the role of the legislature. Roe developed a framework that looked like legislation after conducting an analysis expected of a legislative body. Quite simply, the court overstepped its responsibilities in deciding Roe.

Second, the quality of the reasoning was exceedingly weak. Roe relied on faulty studies to show why abortion laws were passed and ignored the extensive history against abortion among the States. As such, Roe never should have been able to find a constitutional right to abortion. Casey was not much better. Although Casey ignored much of Roe’s reasoning, it also did not address the history of abortion in the United States and simply affirmed Roe’s central holding.

Third, the trimester framework and undue burden tests are unworkable. Part of the reason Casey was decided was because Roe’s trimester framework, which was based partly on a viability line, was unsuccessful. Casey attempted to resolve the issue by developing an undue burden test. The issue was that there were no guidelines on what was “due” and “undue.” Even in Casey, there was disagreement about how the same test should be applied. Further cases have shown a similar disagreement.

Fourth, the decision had adverse effects on other areas of law including third-party standing doctrine, res judicata principles, severability of unconstitutional provisions, and First Amendment doctrines.

Finally, there are no reliance interests to be preserved because even Casey admitted that most abortions are unplanned and any reproductive planning can take immediate effect.


Lastly, Justice Alito addresses the concerns of the dissent and provides a rebuttal to Chief Justice Robert’s concurrence.

The dissent puts great weight on precedence. They argue that we have followed the standard set by Roe and Caseyfor over fifty years and to throw that away would be a great error. Justice Alito responds by stating that if there is a great error made by the court, then even the doctrine of Stare Decisis should not be followed. If the approach taken by the dissent was consistently adopted, then cases such as Plessy v. Ferguson would never have been overturned by Brown v. Board.

Further, the dissent argues that abortion is a constitutional right because other rights have been found that are not explicitly written in the Constitution. For instance, the dissent is fearful that Dobbs is a starting point for overturning other cases such as Obergefell, Loving, and others. However, Justice Alito addressed this concern by stating the main difference between abortion and other rights is the moral dilemma involving a “potential life.”

Finally, Chief Justice Robert’s concurrence in judgment agrees that the Mississippi law is constitutional but does not believe the time was right to overturn Roe and Casey. However, Justice Alito responded by saying that the concurrence provides no other workable standard and no reasoning why to delay. Additionally, there were other laws passed that restricted abortion at earlier gestational periods, as early as six weeks. In other words, the standards presented by Roe and Casey would soon be tested again. There was no reason to delay the inevitable.


Justice Roberts believes the court took this case too far. He argues that there is no need to make a bright line ruling on abortion. Instead, he would draw the line as the Mississippi law as Constitutional (not an undue burden to restrict abortion after 15 weeks).


Justice Kavaneuh is simply saying that it is not the Court’s job to make abortion policy. Policy is for the legislature, not the courts.


Justice Thomas says that the court should not only review abortion rights, but also substantive due process generally.

Other Family and Privacy Interests

Moore v. City of East Cleveland, 431 U.S. 494 (1977).

This case is about a city ordinance which limited how many people can live together when they are not related. The issue here is that the ordinance targeted distant relatives too closely. A family was living together with a distant relative. The ordinance caused this family to be separated.

Ultimately, the court determined that there is a fundamental right of a family to live together. Thus, the ordinance infringed on that right and was subject to strict scrutiny (then found unconstitutional).

This case touches on both perspectives on their approach to substantive due process. For example, there was an emphasis on tradition (families have been living together for centuries).

The dissent argues that familial association does not establish a connection to the right of privacy.

Michael H. v. Gerald D., 491 U.S. 110 (1989).

A women had intimate relations with two men. She married one but the other one was the father. He argues that he has a fundamental right to be associated with his biological child. California did not allow this to be the case.

Scalia, as the majority, upheld the law. Saying that the scope of tradition was not wide enough to determine that there was a fundamental right (no tradition for adulterers to interfere with the relationship of the married couple). Historically rooted in tradition and the right must be stated with specificity (Two elements).

Brennen interprets tradition much more broadly. Tradition is something that is able to grow under the umbrella of the right to privacy.

Troxel v. Granville, 503 U.S. 57 (2000).

Compare this case to Michael H., where the court determined that there was no fundamental right for grandparents to be with the child, the mother’s right is primary.

Right to Die

Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1991).

For a party to pull the plug, there needs to be clear and convincing evidence that the person on life support wanted the plug to be pulled. The Court rules in favor of Missouri, there is no right to pull the plug (there is an interest in making sure the life of a person on life support is protected from those without alternative interests).

Washington v. Glucksberg, 521 U.S. 707 (1997).

There was a statute that prevented doctor assisted suicide.

To establish that there is a fundamental right, there needs to 1) be deeply rooting into the Nation’s history and tradition” and 2) contain a “careful description of the asserted fundamental liberty interest.”

Presently, there is no tradition for suicide in the United States, and that goes for physicians assisting in suicide as well.

Justice Stevens concurring agrees except for the extreme case where a person is in such extreme pain that they should be.

Justice O’Connor concurring says that there should be palliative care (deathbed care). In other words, you can give a person so much medication that they cannot feel the pain until they pass away.

Same-Sex Relations

In 1986, Bowers was the first case about gay rights. In that case, the Court determined that there was no fundamental right for gay intimacy. Implicitly, the Court also determined that there was a fundamental right to opposite-sex activities. In Romer, the Court held for the first time in favor of gay rights. Later, Lawrence, in 2003, overturns Bowers, which is interesting because of how little time has passed between the change.

Before Obergefell, States were split about whether gay rights would be protected within their particular state. An example in Iowa occurred in 2010 when the Iowa Supreme Court invalidated a state ban on same-sex marriage. Several of those judges were then voted out during Iowa’s retention vote the next voting cycle.

Obergefell v. Hodges

135 S. Ct. 2584 (2015).


Is there a fundamental right to same-sex marriage that is protected by the Constitution?


“Same-sex couples may exercise the fundamental right to marry.”


Obergefell and his partner were living together for several decades before his partner became ill. The two resolved to become married before the partner passed away. So, Obergefell and his partner flew from Ohio to Maryland to become married. Soon after, the partner passed away in Ohio. Ohio law did not authorize same-sex marriage within the state and would not put Obergefell as the surviving spouse on the death certificate. This suit followed.


According to the majority, marriage is fundamental, but has not consistently been practiced the same way throughout history (e.g., arranged marriages, women’s power within marriage, etc.). Essentially, the majority takes a poll of current social policy, determines that there is a fundamental desire to have the right, and thus establishes that there is a right. To do so, they cite four reasons why gay marriage should be protected.

  1. Right to personal choice
  2. There is a strong desire to preserve marital unions
  3. Safeguards children and family
  4. Nation’s traditions are clear

Essentially, this case is a debate about fairness. Who has a right to marry? The petitioners say that they want to participate in the sanctity of marriage. The respondents argue that their involvement will diminish the sanctity of marriage.

The majority also focuses on society polls to show how people’s attitudes are changing towards their perspective on gay marriage.

Roberts Dissent

The dissent takes a textual approach. There is nothing in the Constitution that protects gay marriage. Additionally, the dissent argues that the majority is acting as a legislature, not a court, removing the issue from the democratic process. The most famous line of this dissent is,

“If you are among the many Americans-of whatever sexual orientation-who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

Additional Notes

This case and Dobbs seem to be polar opposites. Although Obergerfell did not mention the scrutiny level, because Justice Kennedy believes this is a fundamental right (marriage) which would merit strict scrutiny.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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