Right to Privacy

Thirty-first annual March for Life takes place on the anniversary of Roe v. Wade ruling by the Supreme Court legalizing abortion, 2004.
Sarah Weddington, the lawyer who successfully argued Roe v. Wade, speaks during a 2004 abortion rights rally in Washington, D.C.
Brooklyn-born Supremem Court Justice Ruth BAder Ginsburg argued on behalf of women's rights and was appointed to the Supremem Court by President Bill Clinton in 1993.
CUNY School of Law Professor Richard Storrow is an expert in the bioethics of assisted reproductive technology.
CUNY School of Law Professor Caitlin Borgmann has written extensively about reproductive rights and is the editor of the Reproductive Rights Prof Blog.

Thirty-first annual “March for Life” takes place on the anniversary of Roe v. Wade ruling by the Supreme Court legalizing abortion, 2004.

The makers of our Constitution . . . conferred, as against the government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men.

Louis Brandeis, dissent in Olmstead v. United States (1928)

“Privacy” is mentioned nowhere in the Constitutional text, but in the 20th century, Supreme Court justices have applied the First, Third, Fourth, Fifth and Ninth Amendments to create a constitutional right to privacy. Today, privacy is firmly grounded in the 14th Amendment’s due process clause.

Although Justice Brandeis argued for a right to privacy in telephone wiretapping, privacy has often involved issues of reproductive rights. The Comstock Act (1873) banned the distribution of contraceptives through the mail. In the early 20th century, Margaret Sanger challenged New York’s Comstock law by opening a birth control clinic in Brooklyn.

By the 1960s, changing ideas on sexuality and a rising feminist movement had transformed attitudes on abortion rights and women’s reproductive rights. Griswold v. Connecticut (1965) overturned a law banning the distribution and use of contraceptives by married couples, with Justice Douglas arguing, “Would we allow the police to search the sacred precincts of the marital bedrooms for telltale signs of the use of contraceptives?” Five years later in Eisenstadt v. Baird, the Court overturned birth control restrictions for unmarried individuals.

State court decisions that had legalized abortion served as prequels for Roe v. Wade (1973), the most controversial decision of the 20th century. Justice Blackmun’s majority opinion tried to balance a woman’s right to an abortion with protecting prenatal life. Since 1973, the Court has allowed states to further restrict abortion, including ending federal Medicaid funding, requiring parental consent and requiring 24-hour waiting periods, but the Court has continued to uphold the core of the Roe v. Wade decision. Nonetheless, abortion remains one of the nation’s most divisive issues and many states seek to restrict abortion access and close abortion clinics.

 

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