A Constitutional Right to Privacy?

In the United States, the right to privacy moved into the spotlight as part of the controversial 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. This decision removed federal protections for abortion rights, instead deferring the right to legislate abortion to individual states. As monumental and disruptive as that particular decision was, the fallout from legal precedent it overturned to do so is arguably even larger. The syllabus that gives an overview of the case explains:

As to precedent, citing a broad array of cases, the Court found support for a constitutional “right of personal privacy.” Id., at 152. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. (Dobbs v. Jackson Women’s Health Organization, Syllabus, 2022, p. 5)

Let’s break down what this means. While the Court did not eliminate the constitutional right of personal privacy, it argued that the Roe v. Wade decision, which originally legalized abortion at the federal level, misconstrued how the right to privacy actually works. Roe v. Wade made the argument that the right to privacy means that citizens have the right both to shield private information from disclosure to authorities and use that right to make personal decisions without government interference. In other words, the right to legally obtain an abortion was based on the constitutional right to privacy. The Dobbs v. Jackson Women’s Health Organization breaks that link, arguing that the right to shield disclosure of an action does not confer the right to take that action. Said another way, although one has the right not to disclose information about whether they’ve had an abortion, that right does not make the act of getting an abortion legal.

Although this may appear to be a minor distinction, it potentially disrupts the entire foundation of the right to privacy in the U.S. The majority opinion said this ruling should not affect other cases on which legal rights were tied to the right to privacy. However, in a concurring opinion, Justice Thomas Clarence argued just the opposite:

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). (Dobbs v. Jackson Women’s Health Organization, 2022, Thomas, J., concurring, p. 3)

Here, Thomas is specifically arguing that in light of the Court’s decision in Dobbs v. Jackson Women’s Health Organization, the court should revisit other cases that used the same precedent as Roe v. Wade and correct the error in those cases. What cases does he mention? The 1965 Griswold v. Connecticut case predated Roe v. Wade and established a constitutional right to privacy, recognizing that married couples have the right to use contraceptives. The 2003 Lawrence v. Texas Supreme Court case declared laws criminalizing consensual same-sex sexual activity unconstitutional, affirming the right to privacy and striking down sodomy laws in the United States. The 2015 Obergefell v. Hodges Supreme Court case legalized same-sex marriage nationwide in the United States, recognizing it as a fundamental right protected by the Constitution. In short, Thomas is recommending that the Court revisit the cases that protected the rights to use contraception, to perform consensual same-sex activity, and same-sex marriage and “correct the error” that was made in those decisions.

Let’s revisit that quote at the beginning of the chapter in light of this discussion:

“I’m not worried about privacy because I haven’t done anything wrong.”
– Most People

Rather than saying you aren’t worried about privacy because you haven’t done anything wrong, you should instead understand that in the United States, at least, what counts as right or wrong under the law has long been guided by the constitutional protections of privacy. But we are now living in a shifting landscape where these protections will no longer stand on firm ground. Let’s consider one very personal example of data and privacy that has shifted in light of the Dobbs decision.

Many women have long tracked their menstrual cycles for a wide variety of reasons, including, but not limited to better understanding their health, as a form of birth control, as a way to increase the likelihood of conception, for medical reasons, and to look for signs of menopause. A plethora of cell phone apps are available that can help track this information. None of the activities listed above are illegal, so it may be easy to believe there’s no need to be concerned about privacy in this case. However, if one lives in a state where abortions are no longer legal post-Dobbs, this data can potentially be collected and used as evidence of abortion if there are irregularities (which can occur naturally) in menstruation cycles. Efforts to protect period-tracking app data specifically have thus far failed (Moomaw, 2023). It’s important to note, though, that digital evidence can be collected and used against those who seek abortions from sources far beyond period-tracking apps, including wearable technology, internet-connected household appliances, purchase history, routine data gathering by government agencies, and social media usage (Conti-Cook, 2020). All of these sources of data travel outside of one’s home because they travel over the internet, therefore they are not protected by the remaining right to privacy.

Without the legal protection of privacy, many of our previously guaranteed rights, including whom we marry, whom we engage with in sexual activity, and whether or not we have children are either no longer legal already or may not be in the near future. It doesn’t get much more personal than that.