What the Supreme Court Has Said About Privacy (Including in Dobbs)
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Privacy, Technology and Perspective
What the Supreme Court Has Said About Privacy (Including in Dobbs). This week let’s highlight several cases in which the Supreme Court has considered the right to privacy, including its recent Dobbs v. Jackson Women's Health Organization decision overturning the right to abortion.
Rather than offer commentary, we would like to offer you these quotes first. Emphases are our own:
Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891) (ruling that a court could not force a plaintiff in a civil suit to submit to a pre-trial surgical examination):
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others….”
Meyer v. Nebraska, 262 U.S. 390 (1923) (ruling that “liberty" is protected by the Due Process Clause of the Fourteenth Amendment, and parents have the liberty to "establish a home and bring up children" and "to control the education of their own children):
"[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” [Citations omitted.]
Olmstead v. United States, 277 US 438 (1928) (Brandeis, J., dissenting) (recognizing the famous “right to be let alone”):
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness…They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”
Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating a law providing for the sterilization of certain criminals, ruling that it violated the equal protection clause of the Fourteenth Amendment, and stating that marriage and procreation are fundamental rights):
“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches.”
Griswold v. Connecticut, 381 U.S. 479 (1965) (striking down a ban on the use of contraceptives, even by married people, and recognizing the “right to association” and “the right to privacy”):
“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance…Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’”
Eisenstadt v. Baird, 405 U.S. 438 (1972) (fully embracing the “right to privacy,” including a right for unmarried people to have access to contraception):
“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Loving v. Virginia, 388 US 1 (1967) (striking down laws barring interracial marriage under the Due Process clause of the Fourteenth Amendment, and stating again that marriage is a fundamental right):
“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
Roe v. Wade, 410 U.S. 113 (1973) (legalizing abortion and again recognizing a right of personal privacy):
“The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”
Planned Parenthood v. Casey, 505 U.S. 833 (1992) (reformulating Roe, and reaffirming what it called “Roe’s essential holding):
“The woman's constitutional liberty interest also involves her freedom to decide matters of the highest privacy and the most personal nature. Cf. Whalen v. Roe, 429 U. S. 589, 598-600 (1977).”
Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. _ (2022) (overturning Roe and Casey, and suggesting that Roe conflated the meaning of privacy):
“As to precedent, citing a broad array of cases, the Court found support for a constitutional ‘right of personal privacy.’ But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. See Whalen v. Roe, 429 U.S. 589, 599–600.”
- J. Thomas, concurring (suggesting that years of the Court’s Fourteenth Amendment jurisprudence may be challenged, but notably not referencing Loving (interracial marriage)—a decision that, if overruled, would interfere in J. Thomas’s own marriage):
“The Court today declines to disturb substantive due process jurisprudence generally or the doctrine's application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (right of married persons to obtain contraceptives); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) (right to same-sex marriage), are not at issue. The Court's abortion cases are unique, see ante, at 2257-2258, 2277-2278, 2280-2281, and no party has asked us to decide "whether our entire Fourteenth Amendment jurisprudence must be preserved or revised," McDonald, 561 U.S. at 813, 130 S.Ct. 3020 (opinion of THOMAS, J.). Thus, I agree that "[n]othing in [the Court's] opinion should be understood to cast doubt on precedents that do not concern abortion." Ante, at 2277-2278.
Our perspective: In reviewing the quotes above, notice that the privacy precedents we have highlighted long predate Dobbs. We agree with Chief Justice Roberts, who, in his concurrence, characterized the majority’s decision as a “serious jolt to the legal system,” stating:
“The Court's decision to overrule Roe and Casey is a serious jolt to the legal system —regardless of how you view those cases.”
- C.J. Roberts, concurring
Dobbs has overturned years of well-settled law by a simple majority, upending stare decisis, upsetting women’s lives, and introducing so much uncertainty about our civil rights.
We also strongly question the Dobbs majority’s focus on Whalen v. Roe. That case dealt with the regulation of medical records. There, the Court found that the state did not violate the constitutional right to patient privacy by requiring healthcare providers to store patients' private information who received prescription drugs that could be illegally abused. But in Casey, the Supreme Court specifically referenced Whalen v. Roe and distinguished medical records privacy from a “woman's constitutional liberty interest [in]… deciding matters of the highest privacy and the most personal nature.”
So when Justice Alito, writing for the Dobbs majority, relies on Whalen v. Roe while simultaneously writing that abortion has historically been criminalized, he appears to ignore the liberty interest we all have in not being imprisoned.
It is an uncertain time in privacy law. Digital privacy issues vastly complicate the overarching privacy issues presented by Dobbs, causing us to question whether data privacy and the right to privacy will soon exist in any manner we have ever known. Do you feel that jolt? We hope so. And we hope that you will vote in this upcoming election as if your liberty interests depend upon it. Increasingly it appears that they do.
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy, information security, the Internet and technology. Open the Future℠.