Privacy after Roe: Informational Privacy, Privacy of the Home or Personal Autonomy?

Privacy after Roe: Informational Privacy, Privacy of the Home or Personal Autonomy?.—The use of strict scrutiny to review intrusions on personal liberties in Roe v. Wade seemed to portend the Court's striking down many other governmental restraints upon personal activities. Those developments have not occurred, however, as the Court has been cautious in extending the right to privacy. Part of the reason that the Court may have been slow to extend the rationale of Roe v. Wade to other contexts was that "privacy" or the right "to be let alone" appears to encompass a number of different concepts arising from different parts of the Constitution, and the same combination of privacy rights and competing governmental interests are not necessarily implicated in other types of "private" conduct.

For instance, the term "privacy" itself seems to encompass at least two different but related issues. First, it relates to disclosure of information to the outside world, i.e., the right of individuals to determine how much and what information about themselves is to be revealed to others.603 Second, it relates inward toward notions of personal autonomy, i.e., the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences.604 These dual concepts, here referred to as "informational privacy" and "personal autonomy", can easily arise in the same case, as government regulation of personal behavior can limit personal autonomy, while investigating and prosecuting such behavior can expose it to public scrutiny. Unfortunately, some of the Court's cases identified violations of a right of privacy without necessarily making this distinction clear. While the main thrust of the Court's fundamental-rights analysis appears to emphasize the personal autonomy aspect of privacy, now often phrased as "liberty" interests, a clear analytical framework for parsing of these two concepts in different contexts has not yet been established.

603 For instance, Justice Douglas's asked rhetorically in Griswold: "[w]ould we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." 381 U.S. at 486.

604 Whalen v. Roe, 429 U.S. 589, 598-600 (1977).

Another reason that there is difficulty in defining "privacy" is that the right appears to arise from multiple sources. For instance, the Court first identified issues regarding informational privacy as specifically tied to various of the provisions of Bill of Rights, including the First and Fourth Amendments. In Griswold v. Connecticut,605 however, Justice Douglas found an independent right of privacy in the "penumbras"of these and other constitutional provisions. Although the parameters and limits of the right to privacy were not well delineated by that decision, which struck down a statute banning married couples from using contraceptives, the right appeared to be based on the notion that the government should not be allowed to gather information about private, personal activities.606 However, years later, when the closely related abortion cases were decided, the right to privacy being discussed was now characterized as a "liberty interest" protected under the due process clause of the Fourteenth Amendment,607 and the basis for the right identified was more consistent with a concern for personal autonomy.

After Griswold, the Court had several opportunities to address and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal information.608 For example, in United States v. Miller,609 the Court in evaluating the right of privacy of depositors to restrict Government access to cancelled checks maintained by the bank relied on whether there was an expectation of privacy under the Fourth Amendment.610 Also, the Court has held that First Amendment itself affords some limitation upon governmental acquisition of information, although only where the exposure of such information would violate freedom of association or the like.611

605 381 U.S. 479 (1965).

606 The predominant concern flowing through the several opinions in Griswold v. Connecticut is the threat of forced disclosure about the private and intimate lives of persons through the pervasive surveillance and investigative efforts that would be needed to enforce such a law; moreover, the concern was not limited to the pressures such investigative techniques would impose on the confines of the Fourth Amendment's search and seizure clause, but also included techniques that would have been within the range of permissible investigation.

607 Roe v. Wade, 410 U.S. 113, 153 (1973). See id. at 167-71 (Justice Stewart concurring). Justice Douglas continued to deny that substantive due process is the basis of the decisions. Doe v. Bolton, 410 U.S. 179, 209, 212 n.4 (1973) (concurring).

608 E.g., California Bankers Ass'n v. Schultz, 416 U.S. 21 (1974). See also Laird v. Tatum, 408 U.S. 1 (1972); United States v. United States District Court, 407 U.S. 297 (1972); United States v. Dionisio, 410 U.S. 1 (1973); Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

609 425 U.S. 435 (1976). See also Fisher v. United States, 425 U.S. 391, 401 (1976); Paul v. Davis, 424 U.S. 693, 712-13 (1976); United States v. Bisceglia, 420 U.S. 141 (1975).

610 The Bank Secrecy Act required the banks to retain cancelled checks. The Court held that the checks were business records of the bank in which the depositors had no expectation of privacy and therefore there was no Fourth Amendment standing to challenge government legal process directed to the bank, and this status was unchanged by the fact that the banks kept the records under government mandate in the first place.

611 See Buckley v. Valeo, 424 U.S. 1, 60-82 (1976); Whalen v. Roe, 429 U.S. 589, 601 n.27, 604 n.32 (1977); United States v. Miller, 425 U.S. 435, 444 n.6 (1976). The Court continues to reserve the question of the "[s]pecial problems of privacy which might be presented by subpoena of a personal diary." Fisher v. United States, 425 U.S. 391, 401 n.7 (1976).

Similarly, in Fisher v. United States,612 the Court held that the Fifth Amendment's self-incrimination clause did not prevent the IRS from obtaining income tax records prepared by accountants and in the hands of either the taxpayer or his attorney, no matter how incriminating, because the Amendment only protects against compelled testimonial self-incrimination. The Court noted that it "has never suggested that every invasion of privacy violates the privilege. Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort."613 Further, "[w]e cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy—a word not mentioned in its text and a concept directly addressed in the Fourth Amendment."614

612 425 U.S. 391 (1976).

613 425 U.S. at 399.

614 425 U.S. at 401.

So what remains of informational privacy? Interestingly, a cryptic opinion in Whalen v. Roe615 may indicate the Court's continuing willingness to recognize privacy interests as independent constitutional rights. At issue was a state's pervasive regulation of prescription drugs with abuse potential, and a centralized computer record-keeping system through which prescriptions, including patient identification, could be stored. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to "pose a sufficiently grievous threat to either interest to establish a constitutional violation."616 Lower court cases have raised substantial questions as to whether this case established a "fundamental right" to informational privacy, and instead found that some as yet unspecified balancing test or intermediate level of scrutiny was at play.617

In the interim, the Court briefly considered yet another aspect of privacy - the idea that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home. In Stanley v. Georgia,618 the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues. In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns.619 Nonetheless, the Court based its decision upon a person's protected right to receive what information and ideas he wishes, which derives from the "right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy,"620 and from the failure of the state to either justify protecting an individual from himself or to show empirical proof of such activity harming society.621

615 429 U.S. 589 (1977).

616 429 U.S. at 598-604. The Court cautioned that it had decided nothing about the privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure "arguably has its roots in the Constitution," at least "in some circumstances," the Court seemed to indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the Court's careful circumscription of the privacy issue through balancing does to the concept is unclear after Nixon v. Administrator of General Services, 433 U.S. 425, 455-65 (1977) (stating that an invasion of privacy claim "cannot be considered in abstract [and] . . . must be weighed against the public interest"). But see id. at 504, 525-36 (Chief Justice Burger dissenting), and 545 n.1 (Justice Rehnquist dissenting).

617 See, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) (". . . we believe that the balancing test, more common to due process claims, is appropriate here.").

618 394 U.S. 557 (1969).

619 In fact, the Court passed over a subsidiary Fourth Amendment issue that was available for decision in favor of a broader resolution. 394 U.S. at 569-72. (Stewart, J., concurring).

620 394 U.S. at 564-65

621 The rights noted by the Court were held superior to the interests Georgia asserted to override them. That is, first, the State was held to have no authority to protect an individual's mind from the effects of obscenity, to promote the moral content of one's thoughts. Second, the State's assertion that exposure to obscenity may lead to deviant sexual behavior was rejected on the basis of a lack of empirical support and, more important, on the basis that less intrusive deterrents were available. Thus, a right to be free of governmental regulation in this area was clearly recognized.

The potential significance of Stanley was enormous, as any number of illegal personal activities, such as drug use or illegal sex acts, could arguably be practiced in the privacy of one's home with little apparent effect on others. The Stanley decision, however, was quickly restricted to the particular facts of the case, namely possession of pornography in the home.622 In Paris Adult Theatre v. Slaton,623 which upheld the government's power to prevent the showing of obscene material in an adult theater, the Court recognized that governmental interests in regulating private conduct could include the promotion of individual character and public morality, and improvement of the quality of life and "tone" of society. "It is argued that individual 'free will' must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual's desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society… [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition."624

622 United States v. Reidel, 402 U.S. 351, 354-56 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363, 375-76 (1971); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).

623 413 U.S. 49 (1973).

624 413 U.S. at 64. Similar themes can be found in Roe v. Wade, 410 U.S. 113, 148 (1972), decided the year before. Because the Court had determined that the right to obtain an abortion constituted a protected "liberty," the State was required to justify its proscription by a compelling interest. Departing from a laissez faire, "free will" approach to individual autonomy, the Court recognized protecting the health of the mother as a valid interest. The Court also mentioned but did not rule upon a state interest in protecting morality. The Court was referring not to the morality of abortion, but instead to the promotion of sexual morality through making abortion unavailable. Roe v. Wade, 410 U.S. 113, 148 (1972).

Furthermore, continued the Paris Adult Theatre Court "[o]ur Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take… The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as 'wrong' or 'sinful.' The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States' 'right . . . to maintain a decent society."'625

Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Hardwick. The Court in Bowers, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley did not implicitly create protection for "voluntary sexual conduct [in the home] between consenting adults."626 Instead, the Court found Stanley "firmly grounded in the First Amendment,"627 and noted that extending the reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between consenting adults, including adultery, incest, and other sexual crimes. Although Bowers has since been overruled by Lawrence v. Texas13 based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places.

625 Paris Adult Theatre v. Slaton, 413 U.S. 49, 57-63, 63-64, 68-69 (1973); and see id. at 68 n.15. While denying a privacy right to view obscenity in a theater, the Court did recognize that in order to protect otherwise recognized autonomy rights, the privacy right might need to be expanded to a variety of different locations: "[T]he constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved." Paris Adult Theatre v. Slaton, 413 U.S. 49, 66 n.13 (1973). Thus, arguably, the constitutional protection of places (as opposed to activities) arises not because of any inherent privacy of the location, but because the protected activities normally take place in those locales.

626 478 U.S. at 195-96. Dissenting Justice Blackmun challenged the Court's characterization of Stanley, suggesting that it had rested as much on the Fourth as on the First Amendment, and that "the right of an individual to conduct intimate relationships in . . . his or her own home [is] at the heart of the Constitution's protection of privacy." Id. at 207-08.

627 478 U.S. 186, 195 (1986).

13 539 U.S. 558 (2003).

So, what of an expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior. "The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution… These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-54; id. at 460, 463-65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra."628

Despite the limiting language of Roe, the concept of privacy still retains sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services International,14 recognition of the “constitutional protection of individual autonomy in matters of childbearing” led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.15 The Court significantly extended the Griswold-Baird line of cases so as to make the “decision whether or not to beget or bear a child” a “constitutionally protected right of privacy” interest that government may not burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to protect only that interest or interests.

For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick,16 where the Court by a 5-4 vote roundly rejected the suggestion that the privacy cases protecting “family, marriage, or procreation” extend protection to private consensual homosexual sodomy,17 and also rejected the more comprehensive claim that the privacy cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”18 Heavy reliance was placed on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibited the practice.19 The privacy of the home does not protect all behavior from state regulation, and the Court was “unwilling to start down [the] road” of immunizing “voluntary sexual conduct between consenting adults.”20 Interestingly, Justice Blackmun, in dissent, was most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited.21

Yet, Lawrence v. Texas, by overruling Bowers, brought 22 the outer limits of noneconomic substantive due process into question by once again using the language of “privacy” rights. Citing the line of personal autonomy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals… When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”23

Although it quarreled with the Court’s finding in Bowers v. Hardwick that the proscription against homosexual behavior had “ancient roots,” the Lawrence Court did not attempt to establish that such behavior was in fact historically condoned. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. While the Court does seem to recognize that a State may have an interest in regulating personal relationships where there is a threat of “injury to a person or abuse of an institution the law protects,”24 it also seems to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.25 Thus, the parameters for regulation of sexual conduct remain unclear.

For instance, the extent to which the government may regulate the sexual activities of minors has not been established.26 Analysis of this question is hampered, however, because the Court has still not explained what about the particular facets of human relationships — marriage, family, procreation — gives rise to a protected liberty, and how indeed these factors vary significantly enough from other human relationships. The Court’s observation in Roe v. Wade “that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,” occasioning justification by a “compelling” interest,27 little elucidates the answers.28

Despite the Court’s decision in Lawrence, there is a question as to whether the development of noneconomic substantive due process will proceed under an expansive right of “privacy” or under the more limited “liberty” set out in Roe. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is also now accepted as a “liberty” protected under the due process clauses, however, the analytical significance of denominating the particular right or interest as an element of privacy seems open to question.

628 Roe v. Wade, 410 U.S. 113, 152 (1973).

14 431 U.S. 678 (1977).

15 431 U.S. at 684-91. The opinion of the Court on the general principles drew the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White concurred in the result in the voiding of the ban on access to adults while not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented. The limitation of the number of outlets to adults “imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so” and was unjustified by any interest put forward by the state. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring whether the restrictions serve “any significant state interest . . . that is not present in the case of an adult.” This test is “apparently less rigorous” than the test used with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The attempted justification for the ban was rejected. Doubting the permissibility of a ban on access to contraceptives to deter minors’ sexual activity, the Court even more doubted, because the state presented no evidence, that limiting access would deter minors from engaging in sexual activity. Id. at 691-99. This portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702, 717.

16 478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion.

17 “[N]one of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.” 478 U.S. at 190- 91.

18 Justice White’s opinion for the Court in Hardwick sounded the same opposition to “announcing rights not readily identifiable in the Constitution’s text” that underlay his dissents in the abortion cases. 478 U.S. at 191. The Court concluded that there was no “fundamental right [of] homosexuals to engage in acts of consensual sodomy” because homosexual sodomy is neither a fundamental liberty “implicit in the concept of ordered liberty” nor is it “deeply rooted in this Nation’s history and tradition.” 478 U.S. at 191-92.

19 478 U.S. at 191-92. Chief Justice Burger’s brief concurring opinion amplified this theme, concluding that constitutional protection for “the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.” Id. at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not prosecuted, and had initiated the action to have the statute under which he had been charged declared unconstitutional). Id.

20 The Court voiced concern that “it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.” 478 U.S. at 195-96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217-18) suggested that these crimes are readily distinguishable.

21 478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomy by married couples, and that Georgia had not justified selective application to homosexuals. Id. at 219. Justice Blackmun would instead have addressed the issue more broadly as to whether the law violated an individual’s privacy right “to be let alone.” The privacy cases are not limited to protection of the family and the right to procreation, he asserted, but instead stand for the broader principle of individual autonomy and choice in matters of sexual intimacy. 478 U.S. at 204-06. This position was rejected by the majority, however, which held that the thrust of the fundamental right of privacy in this area is one functionally related to “family, marriage, or procreation.” 478 U.S. at 191. See also Paul v. Davis, 424 U.S. 693, 713 (1976).

22 539 U.S. 558 (2003).

23 539 U.S. at 567.

24 539 U.S. at 567.

25 The Court noted with approval Justice Stevens’ dissenting opinion in Bowers v. Hardwick stating “that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” 539 U.S. at 577-78, citing Bowers v. Hardwick, 478 U.S. at 216.

26 The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712.

27 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey, 431 U.S. at 684-85.

28 In the same Term the Court significantly restricted its equal protection doctrine of “fundamental” interests — compelling interest justification by holding that the “key” to discovering whether an interest or a relationship is a “fundamental” one is not its social significance, but is whether it is “explicitly or implicitly guaranteed by the Constitution.” San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973). That this limitation has not been honored with respect to equal protection analysis or due process analysis can be easily discerned. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring).

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