What is the legal basis for our privacy rights?

The courts currently recognize three legal bases for privacy rights: privacy torts, the explicit guarantees of certain aspects of privacy in the Bill of Rights, and the broader privacy rights implied by the Bill of Rights and further protected by the Fourteenth Amendment.

What is a privacy tort?

A tort is a wrong or injury caused by an individual for which the victim can seek compensation. Privacy torts, more specifically, provide individuals with the legal tools they need to seek damages when they feel that someone or something has violated their privacy. They are established by statutory and common law.

Are there different types of privacy torts?

Legal scholars generally break privacy torts into one of four types: private facts, intrusion, false light, and appropriation. A private facts tort involves the public disclosure of private facts about an individual that the public has no right or need to know. An intrusion tort involves the highly offensive intrusion upon the privacy or solitude of a person. The intrusion can be physical—for example, an uninvited entry into a person's home. But wiretapping and eavesdropping have also been recognized as forms of intrusion. False light torts involve the publication of false and offensive representations of people. And appropriation torts involve the use of someone's name or image without their approval.

Which aspects of privacy are protected by the Constitution?

The courts have suggested that a right to privacy of belief is guaranteed by the First Amendment and a right to privacy within our homes is guaranteed under the Third Amendment. The Fifth Amendment protects the privacy of certain types of information, and the Fourth Amendment protects certain privacy for our persons and possessions.

Why do some say that the Ninth Amendment protects a privacy right?

The Ninth Amendment emphasizes that the rights expressly listed in the Bill of Rights are not the only rights we possess. Many argue that privacy is one of those fundamental rights protected, but not expressly mentioned, by the Bill of Rights.

What role does the Fourteenth Amendment play in protecting privacy rights?

The due process clause of the Fourteenth Amendment says that no state can deny a person life, liberty, or property without due process of law, and in a series of cases the Court has held that privacy is one of the fundamental liberties subject to this protection. This means that the federal government is charged with protecting the privacy rights of individuals against violation by the states.

What Supreme Court case was most important in defining the right to privacy?

During the 1920s, the Court held that certain child-rearing decisions belonged exclusively to parents. In Meyer v. Nebraska and Pierce v. Society of Sisters, the Court denied the authority of the government to intervene in certain private family matters. But the Court developed this reasoning most fully in 1965 in Griswold v. Connecticut. In that case, the Court struck down a Connecticut law that forbade counseling for and use of contraceptives. In a 7-2 ruling, the Court held that the Connecticut law violated a "right to marital privacy." In the opinion, Justice William Douglas argued that, in addition to the expressed guarantees of the Bill of Rights, other rights were contained within the "penumbras," or shadows, existing along the margins of the Bill of Rights. These penumbras were "formed by emanations from those guarantees that help give them life and substance. " In other words, the First, Third, Fourth, Fifth, and Ninth amendments, Douglas argued, protected more than the specific rights contained with each of them, they also established "zones of privacy" that the government was equally bound to protect.¹

Was the Griswold decision controversial?

Yes. Some legal scholars, like Robert Bork, still deny that a constitutionally protected privacy right exists. They argue that the Bill of Rights was designed to protect specific rights and prevent specific government practices. For example, the Fourth Amendment was intended to prevent unreasonable warrantless searches; it was not intended to imply a more general right to privacy.

How did abortion become a privacy right?

The ruling on abortion (Roe v. Wade) came after 50 years of court cases that defined a zone of privacy around decisions made about and within marriage. The Supreme Court, after it had first established that parents had a privacy right to make childrearing decisions, individuals had a privacy right to decide who they wanted to marry, and couples had a privacy right to decide whether or not to use contraceptives to control procreation, ruled that women had a privacy right to determine whether or not to terminate a pregnancy.

What exactly did the Court rule in Roe v. Wade?

Most fundamentally, the Court held that the right to privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."²

But the Court also said that the federal and state governments acquired "an interest" or responsibility pertaining to the fetus as it approached "viability." That is, as the fetus acquired the ability to survive outside the womb, the government acquired a "compelling interest" in its protection. And in addition, the government had an interest or responsibility in ensuring that abortions were safely conducted. This interest also increased as the pregnancy advanced and abortion procedures grew more risky to the mother.

Therefore, in Roe v. Wade, the Court acknowledged a fundamental individual privacy right over the decision to terminate a pregnancy as well as the federal and state governments' escalating interest in the pregnancy as it advanced. To balance these rights and responsibilities, the Court established a trimester framework for assessing the constitutionality of state laws pertaining to abortion. During the first three months of a pregnancy, a woman could obtain an abortion without any government interference. During the second three months, as the risks posed by an abortion to the mother increased, governments could intervene in order to protect the mother's health. And during the last three months, as the fetus reached viability, governments could regulate and even prohibit abortions.

Is Roe v. Wade still the law?

Parts of it. The Court has continued to hold that women possess a constitutionally protected privacy right to decide whether or not to terminate a pregnancy. But since 1992, the trimester framework established in Roe v. Wade has been replaced by other criteria in assessing the constitutionality of state abortion laws. The Court now asks whether a particular law imposes an "undue burden" on a woman's right to an abortion.

What sorts of state abortion laws have been struck down by the Court as an "undue burden" on a woman's right to an abortion?

Laws requiring that women notify or obtain the consent of the would-be father have been repeatedly struck down as an undue burden on the woman's right.

What sorts of state abortion laws have been upheld by the Court since adopting the "undue burden" test in 1992?

Parent notification and consent laws have been upheld if they contain a judicial bypass mechanism, that is, a judicial procedure that allows a minor to circumvent the notification requirement in certain circumstances, such as cases where incest or abuse is a factor. In addition, the Court has allowed a twenty-four hour waiting period between consultation and procedure, and they have upheld state laws requiring health officials to notify women seeking abortions of the health risks involved, the probable age and status of the fetus, alternatives to abortion, and the sorts of public assistance available to mother and child.

Do any federal laws regulate abortion?

Yes. Since 1976, the Hyde Amendment has severely restricted the use of federal funds for abortions. In addition, in 2003 Congress passed the Partial Birth Abortion Ban Act, which prohibited one method of late-term abortion in which the fetus is destroyed after being removed from the uterus.

The Supreme Court has ruled on both of these congressional acts. In 1980, the Court held that a constitutional right to an abortion did not convey a corresponding entitlement to federal dollars for that abortion. And in 2007, the Court held that, since the more common method of late-term abortion, in which the fetus is destroyed before removal, was unaffected by the ban and therefore still available to women, the Partial Birth Abortion Ban Act of 2003 did not present an undue burden on women seeking late-term abortions.

Do students have any privacy rights?

Yes. The courts have heard several cases dealing with the privacy rights of students under the Fourth Amendment. The Supreme Court has held that students are protected from unreasonable searches, but they have also established a lower standard for conducting warrantless searches. While police officers usually need to have "probable cause" that a crime had been committed in order to conduct a warrantless search, school officials must only meet a standard of "reasonableness, under all of the circumstances" before searching students and their possessions. In practice, this has meant that school officials only need a reasonable suspicion that a school rule or law had been broken before conducting a search, and that the search itself must be reasonably conducted.