Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
-- Lawrence v. Texas
The "right to privacy" is a much maligned one, even for many supporters of the ground covered. Jamal Greene joined the club ("The So-Called Right to Privacy"), while noting it is no more, the protections subsumed now under the "liberty" aspect of the Due Process Clause. This, so it is argued, provides it with a more text based hook and "Privacy was never an apt moniker for the rights they have characteristically sought to protect." Thus, we are told:
When Warren and Brandeis wrote of a right to privacy in their 1890 article, they had in mind civil suits against gossip-mongers and paparazzi, not constitutional defenses against abortion prosecutions.
Brandeis decades later constitutionalized the right in his famous Olmstead v. U.S. dissent, a dissent not cited at all in the article here. This is particularly shoddy, but in spirit not totally out of character of efforts like these. As Glenn Greenwald might say, thus this discussion is not necessarily meant to target one particular person, but a general theme. If one reads the beginning of the law review article, we see a germ of an idea that goes long beyond gossip-mongers, even if that is the specific concern. One does not have to read much, since the first paragraph includes this broad principle:
Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -- intangible, as well as tangible.
Similarly, as cited in Roe, such common law civil rights applied in a case involving a tort claim where refusal to search a woman's body was upheld. Again, not cited here. Much easier to get to a desired end when matters that hurt your case are ignored or glided over. OTOH, this makes it harder to take the argument as seriously. So it goes. Thus, we jump to Griswold, as if no previous case spoke of privacy [links found therein notwithstanding] and told "Privacy protected by the Bill of Rights, Justice Douglas seemed to say in, but not in so many words." This as if there is some deduction required by "Various guarantees [of the Bill of Rights] create zones of privacy."
It is admitted that there was a certain "common-sense" connection to the marital bedroom and "privacy" but that the right (as found in the Fourth and Fifth Amendments, though the opinion went beyond them) was of a limited nature to bar evidence, and was of "no use to individuals seeking to avoid the reach of the criminal law altogether." This is where it's useful to remember that Griswold did not shoot out like Athena from Zeus' head. For instance, as cited in Griswold, there were cases involving criminal laws covering associations, where privacy was secured. The activity as a whole, not solely evidence blocked from prosecution. But, the two are connected: the need for special checks to invade privacy inherently means there is something protected.
The privacy right is not absolute. So, the "altogether" is an exaggeration as well. We are told that Roe was a problem since privacy does not seem to "bear the weight of justification for an exemption from abortion restrictions." Why exactly? It helps to just assume a conclusion without actually defending it -- "preserving potential human life is spectacularly weighty." Thus, it "seems" remarkable that the right to privacy as applied here does not only outweigh that interest, but "reject it altogether." Why is the right to potential life at say one week "spectacularly weighty" vis-a-vis privacy? Since the right to choose an abortion is far from absolute, when is it rejected altogether? Is the right of a woman's health "weighty" enough to override?
We are then told that a stream of cases after Roe extending liberty rights avoided the term "privacy" as such. This is fair enough, but they repeatedly tend to cover similar ground. Thus, Cleveland Board of Education v. LaFleur (forced maternity leave) spoke of "a right to be free from unwarranted governmental intrusion." Moore v. City of East Cleveland (expansive definition of "family") spoke of "freedom of personal choice" and "a private realm of family life" (citing a 1944 case; the message is that Griswold is sort of disfavored, but perhaps it should be that it was firmly grounded). If we jump ahead, we can also include Lawrence here. Justice Harlan's Poe v. Ullman dissent is also well cited; it too singled out the "privacy of the home" and the "most intimate of all personal relationships."
Use of language like "unwarranted government intrusions" might appease those who think the "right to privacy" is tainted, but what exactly does "privacy" mean if not that? It is telling that the majority of Lawrence cites Stevens' dissent over Blackmun's, but then who remains on the Court? Stevens rephrased things: "the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny." What sort of important decisions? Stevens says it himself in his Bowers dissent -- "private conduct." Public life leads to some important decisions too; but, private/intimate ones are of special importance, a special sphere often outside the power of the state.
It is often argued that "private" is confusing since various rights under its rubric seem pretty public. What is "public" overall about deciding whether or not to have a child? Modern life pushed the state more into such intimate matters, true enough, but that just underlines the importance of more protection of the right to privacy. Louis Brandeis knew that well, using the common law -- which develops with the needs of time -- to help countermand both private and public use of modern tools that invade such privacy. This is also seen in end of life decisions.
This applies as well to the lower court ruling where Judge Stevens cited his understanding of "privacy" as quoted above. Greene argued it was "profoundly weird" for the privacy right found in Griswold et. al. to apply -- it involved a couple who wanted the father present at the birth of his child at a public hospital. But, Stevens noting that their claim (which failed 2-1, via his own opinion) was not the "same privacy" cited in Brandeis' law review article does not mean it did not make sense. Once upon a time, the birth would be a private act at home. The act still retains a private aspect, just like a patient should have some right to choose who visits him/her in a hospital. Brandeis/Warren did not oppose people seeing pictures of their weddings ... they wanted to have some control over it all the same.
It is noted that the "liberty" interest also is hooked up with the right to equality. The "right to privacy" is cited as a species of "liberty" at any rate -- rights applied against the state such as this are secured by the Due Process Clause. Roe explicitly said as much, not using the "penumbra" approach of Griswold. Ironically, as noted by the article, the latter approach provided an arguably narrower path. "Liberty" is a broad, open-ended term. Privacy or whatever provides a way to apply it to a certain area. How is the new path more text based? If anything, the charm (?) is that it is more open-ended now. And, liberty has to be applied in an equitable matter, and often certain groups benefit in particular.
I'm not sure how "privacy" hurts the cause as such, especially since the language used in the opinions tend to use related words or terms. If gender equality (not developed as such at the time of Roe) is a better fit, so be it, but use of gender liberty rights over gender privacy is helpful, how? It might be that the right to privacy was not adequately discussed early on, the right therefore got a bad reputation, and different words are a better fit in practice. This might fit pragmatically, but let's not use that to ignore the substantive differences are somewhat thin. Justice Scalia suddenly is not convinced; a "compelling state [public] interest" suddenly does not disappear if different language is used. Complaints about arbitrary line drawing or slippery slopes remain.
And, "private" is used to cover ground that is not totally private all the time, and the word is not suddenly deemed absurd. Private life is much regulated; is it not "private" any more? [Well, okay, don't answer that.] We speak of "private" choices like who to marry or who to invite to your wedding, even if the public knows who you wed and the event itself might take place in a public locale. Critics can always say abortion choices are not really "intimate" or "personal liberties" since a third party is involved. The article does not say there is no privacy right at all, including tort related. But, the criticisms can apply there too. So, no "private property" since it is fill with public involvement. Sounds a bit absurd.
The "right to privacy" is used against various groups, e.g., in the area of funding of abortion. That is, the choice is protected, but public funding would be different. But, Stevens' acceptance of this path in various respects underlines "liberty" does not help that much in this respect. The problem is that the state is acting inequitably here. It is selectively funding certain private choices -- to have the child over having an abortion. And, "private" again is robbed of much meaning at all if government involvement suddenly makes an act or place totally "public." To the degree the word is misconstrued, it is writ large, not just in this specific context. Cf. the long practice of not targeting marital rape -- doing so doesn't suddenly mean the bedroom is public.
I think "privacy" contains a certain core quality that retains its value, even if different terms are used such as "personal autonomy" or so forth. If it has a negative connotation, fine, but the cases and discussion continue to cite the principle in so many words all the same. Thus, Lawrence focused on the intimate matter at hand, saying various more matters of public concern (e.g., prostitution, economic matters treated differently) were not involved. Before ending with a basic living constitutional approach, the opinion ended its discussion of the matter at hand thus:
The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Privacy seems not quite dead yet.