Privacy –
First emerges as a right in Griswold V Connecticut (1965) – that case struck down a state law that made it illegal to possess contraceptives because it violated marital privacy
But the Constitution makes no explicit mention of this right
The justices argue that it is found in the first amendment’s right to
free association, third amendment’s right not to have soldiers quartered in
your home, 4th amendment protection against unwarranted searches,
fifth amendment right to self incrimination, and the 9th amendment
which states “The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.”
The justices will later strike to down the prohibition against birth control for single people in Eisenstadt v Baird (1972)
The right to privacy is then expanded in Roe v Wade (1973) where it includes the right to get an abortion but there may be a compelling state interest to intervene as the pregnancy progresses.
 | In the first trimester, the government has no compelling state interest and thus may not interfere in any way. |
| In the second trimester the state’s interest in protecting the health of the woman becomes more compelling and so there may be some regulation to promote the health of the woman. |
| In the third trimester the fetus may be viable and so the government may actually prohibit abortion, unless doing so would endanger that life or health of the woman. |
Planned Parenthood of Central Missouri v Danforth (1976) – court struck down state laws requiring that a woman get permission from her husband or parents (if unmarried) to get an abortion
The Hyde amendment (1976) prohibits the use if federal funds for abortions and in 1977 the court upheld the Hyde amendment and a variety of state efforts to block government funding of abortions
Akron v Akron Center for Reproductive Health (1983) – strikes down requirements that second-trimester abortions be performed at hospitals, that women be told that life begins at conception (known as “informed consent”) and there be a 24-hour waiting period.
Following the appointment of Kennedy (1987) and Scalia (1986) and the promotion of Rehnquist to Chief Justice (1986) under Reagan, it was assumed Roe was dead.
Webster v Reproductive Services (1989) –Missouri prohibits public employees from providing, assisting or encouraging abortions and requires viability testing before an abortion if a doctor suspects a women is more than 20 weeks pregnant – in a badly fractured decision (no majority opinion) the court upheld the limits, but did nor overturn Roe.
Planned Parenthood of Southeastern Pennsylvania v Casey (1992) – Pennsylvania’s law required “informed consent,” 24-hour waiting period, and spousal notification – the court upheld “informed consent” and the waiting period, but struck down the spousal notification because it posed on undue burden on the woman seeking an abortion. The Undue Burden standard replaces the trimester system under Casey (otherwise the 24-hour requirement would have been shot down in the first trimester). The court still holds that the government has more of a compelling interest once a pregnancy reaches viability.
Congress passes the Partial Birth Abortion Ban Act (2003) which banned a procedure known as “intact dilation and extraction” which is generally performed after 16 weeks. It did not include an exception for the health and safety of the mother despite the fact that previous bans on partial-birth abortion had been ruled unconstitutional without such an exception
Gonzales v Carhart (2007) – The court upholds the Partial Birth Abortion Ban Act (5-4 decision with Alito and Roberts joining the majority) because it only bans a specific procedure and thus does not constitute an “undue burden.”
Another area of
privacy law centers of sodomy statutes
Bowers v Hardwick
(1986) court upheld a Georgia ban on homosexual sex because such conduct was not
"deeply
rooted in the Nation's history and tradition" like it was in was in
Griswold v. Connecticut.
Lawrence v Texas (2003) Court reverses Bowers and says that sodomy statutes due violate an individual’s privacy rights
Source: Sue Davis, “Corwin and Peltason’s Understanding the Constitution” material may include word by word quotation with or without attribution.