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Privacy isn’t in the Constitution – but it’s everywhere in constitutional law

By , on��June 15, 2022 8.26am EDT

Almost all American adults — including parents, medical patients and people who are sexually active — regularly exercise their right to privacy, even if they don't know it.

Privacy is not specifically mentioned in the��. But for half a century, the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my�����Dz���, this implied right to privacy is the source of many of the nation’s most cherished, contentious and commonly used rights – including the right to have an abortion.

A key component of liberty

The Supreme Court first formally identified what is called “” – the right to independently control the most personal aspects of our lives and our bodies – in 1965, saying it was��.

For instance, the����rights of speech and assembly allow people to privately decide what they’ll say, and with whom they’ll associate. The����limits government intrusion into people’s private property, documents and belongings.

Relying on these explicit provisions, the court concluded in����that people have privacy rights preventing the government from forbidding married couples from using contraception.

In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an��, the court held that the right of decisional privacy is based in the Constitution’s assurance that people cannot be “deprived of life, liberty or property, without due process of law.” That phrase, called the due process clause,����– in the�������Ի���.

Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities.

The right to privacy protects the ability to have consensual sex��. And privacy buttresses the����regardless of race or gender.

The right to privacy is also key to a person’s ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a����even though it violated a local zoning ordinance.

Under a combination of privacy and liberty rights, the Supreme Court has also protected a person’s freedom in medical decision-making. For example, in 1990, the court concluded “that a competent person has a����in refusing unwanted medical treatment.”

Limiting government disclosure

The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist��, the “concept of ‘privacy’ can be a coat of many colors, and quite differing kinds of rights to ‘privacy’ have been recognized in the law.”

This includes what is called a right to “informational privacy” – letting a person limit government disclosure of information about them.

According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist – both conservative justices –����in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life.����have relied on the right of informational privacy to limit the government’s ability to disclose someone’s sexual orientation or HIV status.

All told, though the word isn’t in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded – such as in a future Supreme Court decision – many of the rights it’s connected with may also be in danger.