No right to privacy

The Supreme Court created privacy rights, and it can take them away

The Supreme Court.
(Image credit: Drew Angerer/Getty Images)

Do you have a right to privacy? The question would prompt an indignant "I sure do" from most Americans. But nowhere in the Constitution did the Framers use the word "privacy" or expressly state any support for "my body, my choice." Privacy is an invention of the Supreme Court. Until the Griswold decision in 1965, states could prohibit anyone — including married couples — from using contraception. Until 1967's Loving decision, states could imprison people for marrying someone of another race. Until 2003's Lawrence ruling, states could arrest gay men — or straight couples — for engaging in "sodomy" in their own bedrooms. Griswold was the big turning point. In that ruling, Justice William O. Douglas wrote that "penumbras" and "emanations" of protections actually spelled out in the Bill of Rights created an implicit "zone of privacy" upon which the government could not intrude. This concept became the foundation of Roe v. Wade in 1973, with five Republican appointees in the 7-2 majority. But what the Supreme Court giveth, it can taketh away. "Originalist" justices now in the majority mock Douglas' "penumbras," and do not believe privacy rights exist. During recent arguments on a Mississippi abortion law, Justice Brett Kavanaugh said that since the Constitution does not address abortion, Roe can be discarded, and each state can decide if women will be compelled to carry pregnancies to term. Under originalism, the court could reverse Griswold and let states ban contraception. (Some religious groups contend that the pill and IUDs are "abortifacients.") The Constitution also is silent on interracial marriage, and provides no assurance you can engage in sex acts of which your neighbors disapprove. Same-sex marriage? Sorry, not in the Constitution, either. If precedent has no weight, privacy rights become conditional on popular approval. And what you can and cannot do depends to an astonishing extent on what five out of nine Supreme Court justices think, believe, and feel.

This is the editor's letter in the current issue of The Week magazine.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.


Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up
To continue reading this article...
Continue reading this article and get limited website access each month.
Get unlimited website access, exclusive newsletters plus much more.
Cancel or pause at any time.
Already a subscriber to The Week?
Not sure which email you used for your subscription? Contact us