Due Process & Right to Privacy

The right to privacy is not explicitly stated in the Constitution, however over time, the Supreme Court established privacy rights as existing implicitly as a direct result of other rights. This section looks at the court cases that established those privacy rights, and takes a closer look at their uncertain future after one of these landmark cases (Roe v. Wade) was recently overturned.

What you need to learn

Skill to Practice: Describe the facts, reasoning, and decision of Supreme Court cases and their implications in our democracy.

implicit right to privacy

-1st, 4th, 5th, 9th, & 14th Amendment 

-Pierce v. Society of Sisters (1925)*

-Griswold v. Connecticut (1965)*

-enumerated rights

-zones of privacy/penumbra

Roe v. Wade*

This is no longer a CollegeBoard required case as it was recently overturned by Dobbs. Jackson. But it is still relevant to this section as this was a landmark case that established privacy rights.

Court Cases

Roe v. Wade*


U.S Constitution; Amendments 1, 4, 5, 9, & 14.

A Closer Look

For much of its history, Roe v. Wade was widely associated with the right to an abortion. Although the case did establish that right, the language of the court’s decision in 1973 expanded and strengthened privacy protections. Although the right to privacy isn’t explicitly listed (enumerated) in the Constitution, by 1973 the court established that the right to privacy was implied as a result of other rights such as the freedom of speech and the protection from unreasonable searches.

The Roe v. Wade ruling firmly solidified this implied right, and through the 14th Amendment it also ruled that state laws banning abortion amounted to an unconstitutional infringement of the right to privacy.  

So, in 2022 when the court overturned its ruling in Dobbs v. Jackson Women’s Health Organization, the court rejected the idea that the Constitution allows the courts to recognize “fundamental” liberties if they are not explicitly stated in the text of the Constitution (as in an abortion becoming an unenumerated fundamental right).

In a con-current opinion, Justice Clarence Thomas suggested that the court should reconsider all if its substantive due process precedents (issuing fundamental rights not explicitly stated in the Constitution). This would include Griswold (case below) and Obergefell (marriage equality). Although, it’s important to note, a concurring opinion doesn’t hold the same significance as the majority opinion.

The Roadmap to Roe v. Wade, the Right to Privacy, & the Uncertain Future of Privacy Rights in a Digital World

Pierce v. Society of Sisters (1925)

In the early 1920s, the state of Oregon passed the Compulsory Education Act. This act required all children between the ages of eight and sixteen to attend public schools. This was intended to standardize education and Americanize students. It essentially outlawed attendance at private schools, including parochial (religious-based) schools.

The Society of Sisters, a Roman Catholic religious order that operated private schools in Oregon, challenged the law’s constitutionality, as did Hill Military Academy, a secular private school. Both institutions claimed the law infringed upon their rights to operate schools and parents’ rights to direct the upbringing and education of their children.

The Issue:
The primary issue before the Court was whether the state of Oregon overstepped its bounds by requiring almost all students to attend public schools, thus effectively shutting down private education.

In a unanimous decision, the U.S. Supreme Court ruled in favor of the Society of Sisters, holding that the Oregon law was unconstitutional. The Court found that while states have the power to regulate schools to ensure certain standards are met, they do not have the power to standardize students by forcing them to accept instruction from public teachers only. The law unreasonably interfered with the liberty of parents to direct the upbringing and education of children under their control.

Justice James C. McReynolds delivered the opinion of the Court. He emphasized the importance of liberty and the rights of individuals, stating that “the child is not the mere creature of the state.” He argued that the state cannot unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control.

The Court believed that the law was too sweeping, essentially making parents’ and guardians’ choices for them. The ability of parents to make choices about their children’s education, including the choice to send them to private or parochial schools, was an important aspect of their liberty.

Pierce v. Society of Sisters has been a significant case in the realm of education law and parental rights. It set a precedent that recognizes the primary role of parents in the upbringing of their children, including the right to choose the type of education they receive. The case is often cited in discussions about the balance of power between states and individuals in matters of education and parental rights. Furthermore, it emphasizes the importance of religious freedom in the U.S., as parochial schools were directly impacted by the Oregon law.

Griswold v. Connecticut (1965)

In 1965, the U.S. Supreme Court decided a landmark case that revolved around the use and distribution of contraceptives. At the time, Connecticut had a law on its books (from 1879) that prohibited the use of “any drug, medicinal article, or instrument for the purpose of preventing conception” and made it illegal to assist, abet, or counsel someone in the use of contraceptives.

Estelle Griswold, the Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a licensed physician and professor at Yale Medical School, opened a birth control clinic in New Haven, Connecticut. Shortly after opening, they were arrested and fined for violating the state’s anti-contraceptive law.

The Issue:
The central question was whether the Constitution protected the right of marital privacy against state restrictions on a couple’s ability to be counseled on and use contraceptives.

The U.S. Supreme Court ruled in a 7-2 decision that the Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. Consequently, the law was deemed unconstitutional.

Justice William O. Douglas wrote the majority opinion. The Court reasoned that while the Constitution does not explicitly mention a right to privacy, certain guarantees within the Bill of Rights create “zones of privacy.” These zones are formed by emanations from specific guarantees, such as the First, Third, Fourth, Fifth, and Ninth Amendments. In essence, the right to privacy is derived from the penumbras (or shadows) of these other fundamental rights.

Justice Douglas argued that the right to marital privacy is one such zone of privacy and that the Connecticut statute intruded upon this right. The law, by prohibiting the use of contraceptives, sought to regulate a very intimate aspect of the marital relationship, which the Court found to be outside the scope of state authority.

Concurrences and Dissents:
Justices Arthur Goldberg, John Marshall Harlan II, and Byron White wrote concurring opinions, emphasizing different aspects of the right to privacy.

Justice Hugo Black and Justice Potter Stewart wrote dissenting opinions. Justice Black, for instance, found no constitutional justification for striking down the Connecticut law, arguing that the Framers included no right to privacy in the Constitution.

Griswold v. Connecticut is a seminal case in American constitutional law. It laid the groundwork for several subsequent cases, most notably Roe v. Wade (1973), which expanded the right to privacy to include a woman’s right to have an abortion. The concept of “penumbras” and “emanations” became controversial, as it entailed deriving rights not explicitly listed in the Constitution. Nonetheless, the case firmly established a constitutional right to privacy, albeit one with roots in several provisions of the Bill of Rights.

Roe v. Wade (1973)

Now NON-REQUIRED case following Dobbs v Jackson (2022)
Landmark SCOTUS cases often have 2 implications. The first implication is the immediate outcome of the case “verdict”, meaning: how does it affect the people mentioned in the case? The second will play out in the following years or even decades after the majority opinion is released. So these are questions raised by the majority opinion, not necessarily what WILL happen going forward.

The future of privacy rights in a post-Roe world

by: Margaret Harding McGill & Ashley Gold

Privacy experts fear the Supreme Court’s decision to overturn federal abortion rights will erode other key protections and expose daily life online to criminal investigations.

Why it matters: The federal right to an abortion provided by Roe v. Wade had its foundation in the conception of a personal right to privacy, broadly believed to cover everything from contraception use to same-sex marriage.

  • The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization opens the door to overturning those protections.

What they’re saying: “I do think that there are very legitimate reasons not to trust that the rest of the conservative majority on the Supreme Court will only impact abortion and no other rights, including privacy,” Caitlin Chin, a fellow at the Center for Strategic and International Studies, told Axios.

  • “It’s a very, very concerning landscape out there right now.”

How it works: The Constitution does not explicitly guarantee a right to privacy, but court cases over the years have formed a sort of “penumbral” one (meaning a group of rights derived by implication from other rights), Margot Kaminski, a law professor at the University of Colorado, told Axios. The Roe ruling throws that into question.

  • The right to an abortion relies on the same 14th Amendment guarantee that provides the rights to contraceptives, interracial marriage and same-sex marriage, Eleni Manis, research director for Surveillance Technology Oversight Project, or STOP, told Axios.
  • “You can’t have it one way and not the other,” Manis said.

Reality check: The Supreme Court has largely not extended a right to privacy to include a right to data privacy.

  • Also, users theoretically give up many protections on their data once they agree to any service provider’s terms.

What to watch: Much of daily life happens online, and if the Supreme Court continues down this path, that internet activity could become fodder for criminal investigations.

  • “We could see geofence warrants and keyword search warrants used in the same manner to prosecute individuals who, by living their lives, are committing acts that states may criminalize,” Manis said.
  • Kaminski said it will not be difficult for law enforcement to prove “probable cause” that someone committed a crime related to one of many newly-enacted state abortion laws and get easy access to search a cell phone.

Yes, but: Tulane law professor and privacy expert Amy Gajda notes that Justice Samuel Alito acknowledged in the Dobbs opinion that privacy can be understood both as a right to avoid unwanted disclosure of information and as the right to make decisions without government interference. 

  • “The Court then deeply undermined that second sense of privacy but did not address the first,” Gajda said.

The intrigue: The Dobbs decision may prompt tech companies to minimize the data they collect. It could also recharge Congress’ effort to pass a national online privacy law.

  • A bipartisan privacy bill from House Energy & Commerce Chairman Frank Pallone (D-N.J.), ranking member Cathy McMorris Rodgers (R-Wash.) and Senate Commerce ranking member Roger Wicker (R-Miss.) would provide heightened protections for location and health data and allow people to opt out of sharing information with data brokers.
  • The “My Body My Data Act” from Rep. Sara Jacobs (D-Calif.) would limit the amount of data period-tracking apps can collect and require them to obtain permission from a user before sharing or selling that data.
  • Sen. Elizabeth Warren (D-Mass.) and other Democrats recently introduced a bill that would ban data brokers from selling users’ health data.