right of privacy: personal autonomy

The right of privacy has evolved to protect the freedom of individuals to choose whether or not to perform certain acts or subject themselves to certain experiences. This personal autonomy has grown into a 'liberty' protected by the Due Process Clause of the 14th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html). However, this liberty is narrowly defined, and generally only protects privacy of family, marriage, motherhood, procreation, and child rearing. Further extensions of this right of privacy have been attempted under the 1st, 4th, and 5th Amendments (http://www.law.cornell.edu/constitution/constitution.table.html#amendments) to the U.S. Constitution, however a general right to personal autonomy has yet to take hold beyond limited circumstances.

The personal autonomy dimension of the right of privacy has been overwhelmingly developed in cases dealing with reproductive rights, and accordingly it is most firmly established in this area. The Supreme Court first recognized an independent right of privacy within the 'penumbra' (fringe area) of the Bill of Rights in Griswold v. Connecticut, 381 U.S. 479 (1965). In this case, a right of marital privacy was invoked to void a law prohibiting contraception. Later cases expanded upon this fundamental right, and in Roe v. Wade, 410 U.S. 113 (1973) the right of privacy was firmly established under the due process clause of the 14th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html). The court classified this right as fundamental, and thus required any governmental infringement to be justified by a compelling state interest.Roe held that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability. Before viability, it was held, the mother's liberty of personal privacy limits state interference due to the lack of a compelling state interest.

The personal autonomy aspect of the right of privacy has limits, although these are always changing. In 1986, for example, a law criminilizing same sex sodomy was upheld in Bowers v. Hardwick, 478 U.S. 186 (1986). The Court held that not all private consensual sexual activity is insulated from the state. At the time, the same sex activities in question were not granted inclusion in the due process protected categories of relationships. Today, however, it appears that opinions have changed. Bowers was overturned in Lawrence v. Texas (http://supct.law.cornell.edu/supct/html/02-102.ZO.html) (2003), thereby recognizing a shifting public opinion about same sex relationships. Indeed, the activities protected by this aspect of the right of privacy are constantly in flux, with limits simultaneously being expanded and restricted.

As activities become further removed from reproduction and intimacy, less fundamental that is, the right of privacy weakens. Pornography is an area where the court has been reluctant to completely grant the liberty of personal autonomy, although some privacy has been allowed: see Stanley v. Georgia, 394 U.S. 557 (1969) and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

The 1st, 4th, and 5th Amendments to the U.S. Constitution have been utilized to varying degrees of success to protect privacy in these gray areas of activity. The court's preference for a case-by-case approach to the right of privacy in as much as it protects personal autonomy, combined with ever-changing public opinion on the status of various relationships and activities, makes a succinct statement about the boundaries ofthe right of privacy nearly impossible.

• See also:
  • The Right of Privacy
  • The Right of Privacy: Access to Personal Information
  • The Right of Publicity

menu of sources

Federal Material

• Search U.S. Suprme Court Decisions (http://www.law.cornell.edu/supct/search/search.html)
• Search U.S. Circuit Courts of Appeals Decisions (http://www.law.cornell.edu/usca/search/)
• 1st Amendment to U.S. Constitution (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti)
• 4th and 5th Amendments to U.S. Constitution (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentiv)
• 14th Amendment to U.S. Constitution (http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html)

U.S. Supreme Court: Historic Right of Privacy-Personal Autonomy Decisions

• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Stanley v. Georgia, 394 U.S. 557 (1969)
• Roe v. Wade, 410 U.S. 113 (1973)
• Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)
• Whalen v. Roe, 429 U.S. 589 (1977)
• Bowers v. Hardwick, 478 U.S. 186 (1986)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
• Lawrence v. Texas (http://supct.law.cornell.edu/supct/html/02-102.ZO.html) (2003)

State Material

State Judicial Decisions

• N.Y. Court of Appeals:
  • Commentary from liibulletin-ny (http://www.law.cornell.edu/nyctap/search/index.html?query=privacy%2Band%2Bright)
  • Search N.Y. Court of Appeals Decisions (http://www.law.cornell.edu/nyctap/search/index.html?query=privacy%2Band%2Bright)
• Appellate Decisions from Other States (http://www.law.cornell.edu/states/)

Other References

Good Starting Point in Print:

• Turkington & Allen-Castellitto Privacy Law: Cases & Materials (http://west.thomson.com/product/18543992/product.asp), West Group (2002)

other topics

Category: Family Law Category: Individual Rights Category: Constitutional Law