The United States constitutional right of privacy

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The conflation of privacywith libertyis a common problem in the United States. Indeed, this is the primary criticism levelled at the US constitutional right of privacy that was interpreted out of the Constitution by the Supreme Court in Griswold v. Connecticut.164 This case concerned Estelle Griswold, who was the Executive Director of the Planned Parenthood League in that state. In defiance of a statute criminalising contraception and acts aiding and abetting the use of contraception,165 Griswold provided information, instruction and medical advice to married couples as to the various means of preventing conception. She was successfully prosecuted under the law and fined $100. The constitutionality of the statute was immediately challenged and the case was ultimately heard by the Supreme Court. In a seminal decision, the Court 'interpreted out' of the US Constitution a right to privacy that is not expressly included therein. It did so by reference to what it called penumbras, 'emanations

160 See, for example, L. Blom-Cooper, 'The Right to Be Let Alone' (1989) 10 Journal of Media Law and Practice 53.

161 Parent warns against this very specifically in 'Privacy, Morality and the Law'.

163 R. Posner, 'An Economic Theory of Privacy' in F. D. Schoeman (ed.), Privacy: An Anthology, pp. 274-5.

164 Griswold v. Connecticut 381 US 479 (1965). For an account of the historical lead-up to Griswold see Rubenfeld, 'The Right of Privacy', 740-4.

165 The provisions in question were paras. 53.32 and 54.196 of the General Statutes of Connecticut (1958 rev.).

from those guarantees [in the Bill of Rights] that help give them life and substance'. It was held that various guarantees create 'zones' of privacy. In other words, various rights expressly guaranteed in the Bill of Rights, such as the right of association,166 the right against self-incrimination,167 or the right not to have soldiers quartered in one's home during peacetime168 - as applied to states through the due process clause of the Fourteenth Amendment169 - create spheres of life which are protected and private. And, in order for that protection to be complete, the true extent of the zones of privacy that exist must be recognised, even if there is no express mention of their existence in the text of the Constitution. As the Court said in Griswold,

The present case ... concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle [that] a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms'... Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.170

In this way the Court ruled the Connecticut statute unconstitutional and in doing so gave birth to the Constitutional Right to Privacy.171 It is important to note that at this stage in its development the right was concerned with family life and its protection.172 It was, however, soon extended to 'individual' rights and beyond, in cases such as Eisenstadt v. Baird173 (in which prohibitions on contraceptive use by single persons

166 Part of the First Amendment. 167 Part of the Fifth Amendment.

168 The Third Amendment.

169 Griswold, 482-5. In all, the Court held that the penumbras emanated from the First, Third, Fourth, Fifth and Ninth Amendments.

170 Per Justice Douglas, at 485.

171 Heavy reliance was also placed on the Ninth Amendment (per Justice Goldberg, at 493) and the Fourteenth Amendment (per Justices White and Harlan, at 500-2, 502-8).

172 In particular, Justice White made it clear that the policy behind the statute - namely, an attempt to ban 'illicit sexual relationships' (and by this was meant all forms of 'promiscuity' and sexual relations between non-married couples) - was perfectly permissible as a legislative goal.

173 Eisenstadt v. Baird 405 US 438 (1972).

were held to be unconstitutional174), Roe v. Wade175 (in which the right of privacy was held to be broad enough to encompass a woman's decision to terminate a pregnancy176), Planned Parenthood v.Danforth177 (in which the Supreme Court held unconstitutional a statute requiring a woman to obtain her spouse's consent to abortion) and Planned Parenthood of Southeastern Pennsylvania v. Casey178 (in which the Court reaffirmed the authority of Roe and Danforth179).180

These decisions extend considerably the rights of persons, and particularly women, in the area of reproduction. More generally, it can be seen how the right of privacy started as a 'family right' and became an

174 Per Justice Brennan: 'If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make-up. 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', ibid., at 453.

176 Roe v. Wade is easily the most analysed US constitutional right of privacy case. As an example of the range of arguments which have been made surrounding it, consider J. H. Ely, 'The Wages of Crying Wolf: A Comment on Roe v. Wade (1973) 82 Yale Law Journal 920.

177 Planned Parenthood v. Danforth 428 US 52 (1976).

178 Planned Parenthood of Southeastern Pennsylvania v. Casey 112 S.Ct. 2791 (1992); 505 US 833 (1992).

179 Note, however, that the court also held certain restrictions on a woman's abortion decision to be constitutional in this case. The case concerned several provisions of the Pennsylvania Abortion Control Act which provided that (except in an emergency) a physician could not perform an abortion within twenty-four hours of a request, that such physicians had to furnish women seeking an abortion with information pertaining to the nature ofabortion, the risks involved and available alternatives to abortion, the risks of continued pregnancy, and the age of the foetus. There were also provisions concerning parental consent, spousal notification and public recording of abortions performed. Although a majority of the Supreme Court held that 'the essential holding of Roe v. Wade should be retained and once again reaffirmed' (at 2804), it struck down only the provision of the Pennsylvania Act which concerned spousal notification. The remaining provisions were not 'unduly burdensome' on the woman and therefore acceptable in constitutional terms. This language is revealing. It represents a significant shift away from the language of Roe v. Wade, which required the state to show a 'compelling interest' to justify interference with the abortion decision. This shift in terminology is not mere sophistry. The need simply to avoid an 'unduly burdensome' provision means that states can legitimately give information to women about abortion and its risks and consequences in an attempt to persuade (but not coerce) them into opting out of abortion. Such an outcome, arguably, was not possible with the language of Justice Blackmun in Roe v. Wade.

180 For critical comment on these and other right of privacy cases in the area of reproduction, see E. Keynes, Liberty, Property and Privacy: Towards a Jurisprudence of Substantive Due Process (University Park, PA, Pennsylvania State University Press, 1996), ch. 8.

'individual right' that guarantees many personal and sexual freedoms.181 However, the right has not been without limits. This point was made quite categorically by the Supreme Court in Bowers v. Hardwick.182

Bowers v. Hardwick

In this case the constitutionality of a Georgia statute that criminalised sodomy was challenged by Michael Hardwick, who had been prosecuted under the law. He argued that his homosexual activity was 'a private and intimate association' beyond the legitimate reach of state intervention and protected by his Constitutional Right to Privacy. Justice White, who wrote the 5-4 majority opinion upholding the statute, framed Hardwick's case rather differently. He asserted that the essence of the case was whether 'the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy'.183 Thus put, it is hardly surprising that Hardwick's case was unsuccessful.

Justice White noted that to date the constitutional privacy cases protected three categories of activity: marriage, procreation and family relationships.184 Since the activities of homosexuals fall into none of these, he argued, their activities could not be protected by the privacy right. This is strange reasoning by anyone's standards. First, all that Justice White achieved in Bowers was a description of the nature of the Court's prior decisions on privacy. What he did not do, and yet what is surely fundamental to his argument, was to provide an explanation of the underlying doctrinal philosophy that ties these three areas together. In the absence of such an explanation, these three categories can only be taken as examples of the spheres of life protected by privacy; they cannot be seen as determinative in any way.

Second, Justice White failed to explain why he thought (as he and the majority obviously did) that the constitutional right of privacy should be restricted to areas of life that do not include homosexual conduct. This point should not be misinterpreted. It is not to suggest that no

181 As Rubenfeld has noted, 'The great peculiarity of the privacy cases is their predominant, though not exclusive, focus on sexuality - not "sex" as such, of course, but sexuality in the broad sense of that term; the network of decisions and conduct relating to the conditions under which sex is permissible, the social institutions surrounding sexual relationships, and the procreative consequences of sex. Nothing in the privacy cases says that the doctrine must gravitate around sexuality. Nevertheless, it has', 'The Right of Privacy', 744.

182 Bowers v. Hardwick 478 US 186 (1986). 183 Ibid., at 190. 184 Ibid., at 190-1.

justification for upholding the Georgia statute was advanced. Rather, it poses the question, why is privacy - which is clearly concerned with sexual conduct and sexuality - not concerned with the sexuality of all persons, including homosexuals? It is no longer possible to argue, for example, that the right of privacy is solely concerned with families and marital activity, for the Court's decision in Eisenstadt v. Baird permitted single people to have access to contraceptives, and this can only be seen to be about sex. Bowers, then, is inconsistent and unprincipled, for it fails to extend the authority from established cases that sexual freedom should be protected as a central element in the right to privacy, and offers no justifiable rationale for doing so.

Not surprisingly, the Bowers decision has been heavily criticised.185 Those who analyse the aftermath primarily asked the question, what does privacy mean now? Many see privacy as being concerned with choices and decisions, but this is simply to avoid the question as to which choices and decisions are protected by privacy. And, as Rubenfeld has pointed out, 'On this point the Court has offered little guidance.'186 He adds further:

We are told that privacy encompasses only those 'personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty"' [Roe v. Wade at 152], that it insulates decisions 'important' to a person's destiny [Whalen v. Roe 429 US 589, 1977, at 600], and that it applies to 'matters... fundamentally affecting a person' [Eisenstadt v. Baird at 438, 453]. Perhaps the best interpretation of these formulations is that privacy is like obscenity: The Justices might not be able to say what privacy is, but they know it when they see it.187

Rubenfeld himself argues, however, that this is an unsatisfactory state of affairs, leaving privacy open to allegations of conceptual confusion and ill-considered development. For him, the underlying principle that binds privacy cases together, and which provides a consistent and justifiable rationale for them, is that of 'the fundamental freedom not to have one's life too totally determined by a progressively more normalizing state'.188 This is an aspect of liberty, but not the aspect commonly

185 See, for example, Rubenfeld, 'The Right of Privacy', M. H. Kohler, 'History, Homosexuality, and Homophobia: The Judicial Intolerance of Bowers v. Hardwick' (1986) 19 Connecticut Law Review 129; and K. Thomas, 'Beyond the Privacy Principle' (1992) 92 Columbia Law Review 1431.

186 Rubenfeld, 'The Right of Privacy', 751. 187 Ibid. 188 Ibid., 784ff.

understood to prohibit laws which restrict specific conduct. Rather, Rubenfeld's thesis is that privacy concerns laws that 'take over' the lives of individuals because they are concerned with aspects of life that are profoundly and extensively affected by such laws. An individual's liberty or freedom is not merely restricted in certain aspects; her entire life is directed down a state-prescribed path. He puts it thus:

laws against abortion, interracial marriage, non-nuclear family residences, and private education all involve a peculiar form of obedience that reaches far beyond mere abstention from the particular proscribed act. It is a form of obedience in which the life of the person forced to obey is thereafter substantially filled up and informed by the living, institutional consequences of obedience. The person finds himself in a new and sharply-defined, but also broadly encompassing institutional role because of their affirmative direction of individuals' lives, these roles - whether as mother, spouse, student or family member - have profoundly formative effects on identity and character.189

Moreover, this analysis explains and justifies the protection of rights in the Bowers v. Hardwick scenario. The obedience of anti-sodomy laws has the product of forcing homosexuals into relations with the opposite sex and requires that they adopt 'normalised' social roles as between themselves and the opposite sex. Undeniably, this has profound implications for the everyday lives of persons.190

The appeal in Rubenfeld's analysis is strong. Not only does he offer a unifying concept of privacy which provides consistent explanation of past cases and allows clear prediction for future cases, but he also establishes a valid theoretical basis on which to defend Hardwick's claim and to criticise the Supreme Court's rejection of it. The content of his right of privacy is a right 'not to have the course of one's life dictated by the state'.191 As an aspect of a liberty argument, however, Rubenfeld's thesis is open to the criticism that is made so often of the Constitutional Right of Privacy and those who write about it, namely, that privacy is confused with, and conflated with, liberty.

But before examining this charge, there is a more obvious question that must be addressed. If, indeed, Rubenfeld and others are right, and it is liberty that is the issue and not privacy, why then would the Supreme Court create a privacy right?

189 Ibid., 792-3. 190 Ibid., 799-802. 191 Ibid., 807.

Judicial knot-tying

Gavison notes that the use of the language of privacy rather than liberty was deliberate on the part of the US Supreme Court.192 This is primarily because a problem for the Court in Griswold was the need to distinguish 'the substantive due process rationale' established in Lochner v. New York.193 This 1905 decision represents the extreme 'liberal' approach once adopted by the Court towards the legitimacy of state intervention in the lives of individuals. In that case the Court held unconstitutional a New York law that sought to restrict the hours that a bakery worker could work in any one day or any one week. The rationale behind the statute was that the state sought to develop consistent labour law policies and to protect the health and safety of workers. The Supreme Court, however, rejected these arguments and held by a majority that the principle of liberty of contract was unduly compromised by such an Act. Taking as its authority the due process clause of the Fourteenth Amendment, the Court opined that to uphold the constitutionality of such an Act would be effectively to deprive individuals of their liberty interests in contracting upon terms agreed privately between themselves and their employers.194 The Court saw the case as an attempt to impose external constraints on economic relations rather than one truly concerned with worker welfare - an end not acceptable as a legislative goal in its eyes. The immediate consequence of this decision was that economic regulation was treated as an issue requiring strict scrutiny if contained in any statute, the implication being that freedom in economic matters was a fundamental freedom under the Constitution.

Post-Lochner, however, the Supreme Court was very heavily criticised. As an interpretation of'liberty' in the Fourteenth Amendment, the decision is not only very broad, but it ignores the very real problem of inequality of bargaining power between employer and employee. The protection of individuals was seen to be abandoned to the vagaries of the marketplace.

Although the specific ruling in Lochner was overturned only twelve years later,195 the effects of the decision continued to be felt long afterwards.196 In particular, the protection of'liberty' underthe Constitution

192 See Gavison, 'Feminism and the Public/Private Distinction', 31-2 and 34-5.

193 Lochner v. New York 198 US 45 (1905). 194 Ibid., at 53.

195 Bunting v. Oregon 243 US 426 (1917).

196 The decision in Nebbia v. New York 291 US 502 (1934) signalled the beginning of the end point of Lochner-type thinking towards the regulation of economic matters. Here the as a matter of substantive due process came to be seen in a bad light as a result of the Lochner economic rights analysis.197 Thus, when the Court came to decide Griswold in 1965, it was keen (i) to extend the protected rights of individuals to include the use of contraceptives between married couples; but (ii) to avoid using the rationale of Lochner (and therefore 'liberty' as it had been defined previously) for fear of undermining the protection to be afforded.198 As Gavison has observed, 'Privacy reasoning offered a way out of the Lochner dead end.'199 Of course, it should not be forgotten or allowed to be obscured that the primary constitutional provision under which these cases are argued remains the same, namely, the substantive due process clause of the Fourteenth Amendment. This brings us to the crucial question: are 'liberty' and 'privacy' under Lochner and Griswold et al. the same thing under different guises?

Various arguments have been advanced on both sides.200 Some have argued that the Lochner cases were concerned solely with economic interests and that the flaw regarding those cases is that the Court cannot, and should not, act as a dictator of state economic policy. These cases can be distinguished on the grounds that privacy cases do not involve the Court in acting as a 'super legislature'. However, as Rubenfeld points out, 'In its own eyes, the Lochner Court was not regulating economics; it was protecting liberty - the liberty of contract.'201 Furthermore, he comments quite rightly that that which is 'private' can easily extend to economic matters, even if the Supreme Court has thus far chosen to restrict privacy cases principally to matters of sexuality.202 Rather, his defence of the two sets of cases focuses on the 'pre-political' nature of the Lochner decisions. The concerns of those cases - that is, liberty of contract cases - were property rights that pre-existed the Constitution

Court held that strict scrutiny was no longer necessary and that the law need only not be 'unreasonable, arbitrary or capricious' and the means selected to achieve the particular legislative end should have a real and substantial relation to that end. Eventually, in West Coast Hotel Co. v. Parrish 300 US 379 (1937) the Court upheld a statute requiring a minimum wage for women even though it interfered with freedom of contract because the Court recognised in real terms that there was a very great inequality of bargaining power between the parties concerned.

197 For account of the 'demise of substantive due process', see Keynes, Liberty, Property and Privacy, ch. 6.

198 To see how this is done see Griswold v. Connecticut, at 482.

199 Gavison, 'Feminism and the Public/Private Distinction', 34.

200 See, in particular Rubenfeld, 'The Right to Privacy', 802-5.

and so did not require its explicit protection. Privacy rights, however, have evolved because of'creeping totalitarianism', and are thus political rights created in response to societal influences. Unfortunately, the utility of this analysis is limited for the purposes of the present discussion. Rubenfeld provides a means of distinguishing the privacy and liberty cases, but he does not address the criticism that his 'privacy' analysis is simply a 'liberty' analysis by another name. Similarly, Gavison provides us with an explanation of the Court's use of 'privacy' and not 'liberty', but this still does not address the question whether, ultimately, 'privacy' is not simply confused with 'liberty' as a general metaphysical concept.

While some state courts have extended privacy yet further, fashioning it into a fundamental interest in the medico-legal sphere that protects crucial life decisions affecting both individual liberty and autonomy,203 the Supreme Court itself has experienced something of a volte face, and has rejected privacy as the key interest that protects these interests, preferring instead a return to a liberty analysis in recent years.204 For some, such as Annas, this represents no serious problem: 'it should be noted... that both rights [privacy and liberty] derive from the same source, and their content in this context is unlikely to be different'.205 By the same token, Meisel notes,

The Court's shift from a privacy analysis to a Fourteenth Amendment analysis is unlikely to have any impact in state courts on common-law or

203 See most notably the approach of the Supreme Court of New Jersey in respect of withdrawal of life support provision: In re Quinlan 70 NJ 10 (1976), 355 A 2d 647; In re Peter 108 NJ 365, 529 A. 2d 419 (1987); InreFarrell 108 NJ 335, 529 A. 2d 404 (1987); In re Jobes 108 NJ 394, 529 A. 2d 434 (1987).

204 In Cruzan v. Director, Missouri Department of Health etal. 497 US 261,111 L Ed 2d 224 (1990) the Court held that: 'Although many state courts have held a right to refuse treatment is encompassed by a generalised constitutional right of privacy, we have never so held. We believe this issue is more properly analysed in terms of the Fourteenth Amendment liberty interest', at 242, n. 7. The court cited its own liberty jurisprudence in support: Jacobson v. Massachusetts, 197 US 11, 24-30, 49 L Ed 643, 25 S Ct 358 (1905) (in which the Court balanced the recognised liberty interest of the individual in refusing invasive vaccination with the state interest in protecting public health); Washington v. Harper, 494 US 210, 108 L Ed 2d 178, 110 S Ct 1028 (1990) (in which the Court held that the forcible injection of medication into a non-consenting person's body represents a substantial interference with the person's liberty); Vitek v. Jones 445 US 480, 63 L Ed 2d 552, 100 S Ct 1254 (1980) (in which the Court held that the transfer of a patient to a mental hospital coupled with mandatory behaviour modification treatment implicated liberty interests); and Parham v. J. R., 442 US 584, 61L Ed 2d 101, 99 S Ct 2493 (1979) (here the Court held that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment).

205 G.J.Annas, 'The Long Dying of Nancy Cruzan' (1991) 19 Law, Medicine and Health Care 52.

state constitutional grounds, as well as the federal constitutional right of privacy. This has been borne out in subsequent state court decisions, in which they have continued to rely on state constitutions, state statutes, and the common-law right to be free from unwanted interference with bodily integrity to provide the basis for the right to refuse medical treatment, the refusal of which will result in death.206

This suggests that the wide-ranging influence of the right to privacy is likely to remain in the medico-legal sphere, at least at the state level.207 However, the continued confusion surrounding the legitimate boundaries and roles of concepts such as liberty, autonomy and privacy has done a great disservice to their ontological essence, and by far the most significant harm has been done to privacy, for it has long been seen as the poorest cousin in the family. Thus, while its continued existence is one thing, its legitimacy and scope are entirely different matters.

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