Right to Privacy GOVT 2305, Module 4

Is there a right to privacy? Although the Constitution does not specifically mention privacy, the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a right of privacy.

Griswold v. Connecticut (1965) The Court struck down a seldom-enforced Connecticut law that prohibited the use of contraceptives and the dispensing of birth control information even to married couples on the grounds that its enforcement would involve government's invading "the privacy of the bedroom."

Eisenstadt v. Baird (1972) The U.S. Supreme Court overturned the Massachusetts “Crimes Against Chastity” statute that limited the distribution of contraceptives to married couples. The rulings was based on a constitutional right of privacy.

The phrase “right to privacy” does not appear in the Constitution. Controversy Conservatives do not believe that the Constitution protects individual privacy. They accuse liberals of making up the right. In contrast, liberals argue that the Constitution includes a number of provisions that imply a right to privacy. The phrase “right to privacy” does not appear in the Constitution.

Basis of Right to Privacy 3rd Amendment prohibits having to quarter soldiers in private homes; 4th Amendment protects against unreasonable searches and seizures; and 9th Amendment stipulates that the Bill of Rights is not necessarily an exhaustive list of rights. A right to privacy is the basis for the Supreme Court’s ruling in Roe v. Wade. What issue did that case address? Abortion

Roe v. Wade The case dealt with a challenge by an anonymous Dallas woman, "Jane Roe," to a Texas law prohibiting abortion except to save the life of a woman. The Court found the Texas statute unconstitutional, declaring that a woman's right to personal privacy under the U.S. Constitution included her decision to terminate a pregnancy.

Before Roe Before Roe, states, if they chose, could prohibit abortion except to protect the life of the woman. Some states allowed abortion; others, including Texas, outlawed abortion.

State Laws Before Roe States that reformed their laws allowed abortion in cases of rape, incest, or to protect the health of the woman.

Court Balanced Rights The Court ruled that a woman's right to privacy was not absolute and must be balanced against the state's interest in protecting health, medical standards, and prenatal life. Although Roe was regarded as a victory for pro-choice forces, it was actually a nuanced decision.

Trimester System During the first trimester, state governments could not interfere with a physician's decision, reached in consultation with a pregnant woman patient, to terminate a pregnancy. In the second trimester, the state could regulate abortion but only to protect the health of a woman. In the third trimester, after the fetus had achieved viability (the ability to survive outside the womb), the Court ruled that state governments could prohibit abortion except when it was necessary to preserve the life or health of a woman.

Viability Standard Citing recent medical advances, the Court abandoned the trimester system in 1989 when it upheld a Missouri law requiring physicians to perform medical tests to determine fetal viability beginning at 20 weeks.

Post Roe Rulings—The “Undue Burden” The Court subsequently ruled that a state could regulate abortion throughout a pregnancy as long as the regulations did not place an "undue burden" on a woman's right to terminate a pregnancy before viability, defined as an "absolute obstacle or severe limitation" on the right to decide to have an abortion. In sum, a state can regulate abortion before viability as long as the regulation does not place an undue burden on the right to choose. After viability, states can prohibit abortion.

Abortion in Texas In 2011, 73,200 women obtained abortions in Texas, a figure representing 14 percent of pregnancies. In 2014 54,902 women obtained abortions in Texas, a figure representing 13.7 percent of pregnancies.

2013 Abortion Law In 2013, the Texas legislature adopted HB 2, the most restrictive abortion law in the nation. The law bans abortions after 20 weeks of pregnancy. It mandates that a doctor have admitting privileges at a hospital within 30 miles of the facility where he or she performs abortions. This requirement resulted in the closure of half the state’s abortion facilities. It requires abortion clinics to meet the same standards as hospital-style surgical centers. This requirement would close all but six abortion facilities.

Supreme Court Overturns Law In 2016, the U.S. Supreme Court ruled that the admitting privileges and surgical center requirements were unconstitutional because they placed an undue burden on a woman’s right to choose to terminate a pregnancy. The Texas Health and Human Services Commission responded to the ruling by proposing new rules that aborted tissue must be buried or cremated, adding significantly to the cost of an abortion.

The Texas Homosexual Conduct Law Sec. 21.06. HOMO-SEXUAL CONDUCT. (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. (b) An offense under this section is a Class C misdemeanor.

Lawrence v. Texas (2003) The U.S. Supreme Court ruled that the Texas law violated the Due Process Clause of the Fourteenth Amendment because it intruded into the personal and private lives of individuals without furthering a legitimate state interest.

What You Have Learned Does the Constitution include a right to privacy? What provisions of the Constitution imply a right to privacy? What is the significance of Griswold v. Connecticut? What is the significance of Roe v. Wade? How has the Supreme Court modified its decision in Roe? How did the Texas abortion law adopted in 2013 restrict access to abortion in Texas? What is the significance of Lawrence v. Texas?