The “Penumbra” of Rights



Can your right to privacy be defined?
◦ The government typically has looked at privacy as behavior or
activity free of an invasive government
◦ Court tried to define privacy as emanating from the 1st, 3rd, 4th,
5th, and 9th Amendments
3 controversies
◦ Privacy not in Constitution
◦ How far does privacy extend
◦ What is the role of the Court in determining privacy
Olmstead v. US (1928)
◦ Privacy first mentioned-Founders “conferred, as against the
government, the right to be left alone-the most comprehensive of
rights and the right most valued by civilzed men. To protect that
right, every unjustified intrusion of government upon the privacy
of the individual, whatever the means employed, must be deemed
a “constitutional violation.” Justice Louis Brandeis

Griswold v. Connecticut (1965)
◦ Connecticut law prohibits using
contraceptives and counseling for
using them which Griswold had
done
◦ Court overturns conviction stating
law violates her right to privacy
◦ Justice Douglas stipulates a right to
privacy emerges from other rights
such as the 1st, 4th, 5th, and the 14th
Amendments
 These rights have “penumbras” of
guarantees
◦ Douglas also felt that enforcement
of the law would require
extraordinary government
intrusiveness
◦ Justice Goldberg concurred, also
including the role of the 9th
Amendment in this guaratee of
privacy



Jane Roe had been raped while
working in Texas and wanted
to have an abortion which was
illegal in 25 states including
Texas
Texas argued 2 reasons why
◦ Safeguard health of the mother
◦ Protect the right to life of the fetus
Justice Blackmun writes that
the decision to have an
abortion was protected by the
right to privacy and sets up the
trimester plan as to when the
states can regulate abortions

Planned Parenthood v. Case (1992)

Stenberg v. Carhart (2000)
◦ Court strikes down the spousal notification of the Pennsylvania
Abortion Control Act
◦ Allows partial birth abortion if medically necessary
Roe and Griswold have also helped to build cases for “sexual
autonomy”
 Bowers v. Hardwick (1986)
◦ Court upholds Georgia antisodomy law by stating the right to
privacy was meant to protect institutions or marriage and
procreation, not homosexuality

Lawrence v. Texas (2003)
Court strikesdown a Texas law and overrules its Bowers decision
on the grounds that the law vilolates the individuals Due Process
14th Amendment rights. Furthermore, there was no legitimate
state interest which can justify intrusion into the personal and
private life of the individual