The Bill of Rights is ratified. During the twentieth century, the courts will hold that among the rights guaranteed are several protecting certain aspects of privacy, including the right to privacy of belief under the First Amendment and a right to privacy within our homes under the Third Amendment. The Fourth Amendment, guaranteeing the right to be secure in our persons and property against unreasonable searches and seizures, will be interpreted by the Supreme Court in 1967 to protect a right to privacy wherever there is a reasonable expectation of privacy.
The Fourteenth Amendment to the Constitution is ratified. Its due process clause states that "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." During the twentieth century, the Supreme Court will conclude that privacy is among the fundamental liberties protected by the Fourteenth Amendment.
Louis Brandeis and Samuel Warren publish "The Right to Privacy" in the Harvard Law Review arguing for more extensive legal protections for privacy—"the right to be let alone"—under the common law.26
In Meyer v. Nebraska, the United States Supreme Court rules that a Nebraska law violates the due process clause of the Fourteenth Amendment. The Court holds that the liberties protected under this clause include more than "merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." This ruling will provide the basis for an expanded right to privacy under the Constitution.
In Pierce v. Society of Sisters, the United States Supreme Court rules that an Oregon law requiring that children ages eight to sixteen attend public schools violates the constitutionally protected right of "parents and guardians to direct the upbringing and education of children under their control."27 Selecting a school for their children was a parental choice that fell into a zone of privacy into which the government could not tread.
In Griswold v. Connecticut, the United States Supreme Court strikes down a Connecticut law that forbids counseling for and the use of contraceptives. In a 7-2 ruling, the Court holds that the Connecticut law violates a "right to marital privacy." In the opinion, Justice William Douglas argues that in addition to the expressed guarantees of the Bill of Rights, other rights were contained within the "penumbras," or shadows, existing along the margins of the Bill of Rights. These penumbras were "formed by emanations from those guarantees that help give them life and substance." In other words, the First, Third, Fourth, Fifth, and Ninth Amendments, Douglas argued, protected more than the specific rights contained within each of them; they also established "zones of privacy" that the government was equally bound to protect.28
In Loving v. Virginia, the United States Supreme Court rules that Virginia's ban on interracial marriage violates the due process clause of the Fourteenth Amendment to the United States Constitution.
In Katz v. United States, the United States Supreme Court rules that the protections of the Fourth Amendment do apply to wiretaps. A warrant is required, it says, before the police or other government agency can tap a public phone. Emphasizing that the Fourth Amendment protects people, and not just places, one justice argues that under the Fourth Amendment an individual is guaranteed privacy wherever there is a reasonable expectation of privacy.
In Eisenstadt v. Baird, the United States Supreme Court holds that single persons possess the same privacy right earlier extended to married couples under Griswold. The ruling strikes down a Massachusetts law that made it a felony to distribute contraceptives to unmarried persons. In the ruling, the Court states that "if the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or begat a child."29
In Roe v Wade, the United States Supreme Court strikes down a Texas law that prohibits abortion in all cases except those performed in order to save the mother's life. The Court holds that the constitutionally protected right to privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."30 Acknowledging, however, that the state acquires an increasing interest in a woman's pregnancy as it advances, as both the viability of the fetus and the health risks of an abortion to the mother increase, the Court establishes a trimester framework to guide permissible forms of state intervention. During the first three months, a woman can obtain an abortion without any government interference. During the second three months, as the risks posed by an abortion to the mother increase, states can intervene in order to protect the mother's health. And during the last three months, as the fetus reaches viability, states can regulate and even prohibit abortions.
In Harris v. McRae, the United States Supreme Court rules that the Hyde Amendment, which imposed severe limitations on the use of federal funds to pay for abortions, does not violate the privacy rights granted under the Constitution. The Court holds that the right to an abortion does not convey to a woman "a constitutional entitlement to the financial resources to avail herself of the full range of protected choices."31
In New Jersey v. T.L.O., the United States Supreme Court rules that while students are protected under the Fourth Amendment against unreasonable searches by school officials, the standard for conducting a warrantless search is lower. Teachers and administrators need not have "probable cause" that a crime has been committed in order to conduct a search; instead, the search must only meet a standard of "reasonableness, under all of the circumstances." In practice, this means that school officials only need a reasonable suspicion that a school rule or law has been broken before conducting a search, and that the search itself must be reasonably conducted.32
In Webster v. Reproductive Health Services, the United States Supreme Court affirms most parts of a Missouri law written from the premise that the "life of each human being begins at conception."33 The law forbids state employees to conduct abortions and prohibits the use of public facilities for abortions. The law also requires fetal viability tests at twenty weeks before performing abortions, rather than twenty-four weeks, the requirement established by Roe v. Wade's trimester approach. In its ruling, the Court does not overturn the essential guarantee provided in Roe v. Wade but it does defend the right of the states to impose these sorts of restrictions and it criticizes the inflexibility of the trimester framework established in the 1973 ruling.
In Planned Parenthood v. Casey, the United States Supreme Court eliminates the trimester framework established under Roe v. Wade for measuring the constitutionality of state laws on abortion. In reviewing a Pennsylvania law that imposes several requirements regarding abortions on women and doctors, the Court upholds the basic guarantees established in Roe v. Wade. But the Court holds that the state possesses an interest in the fetus prior to the third trimester, and therefore states can intervene earlier than the last three months of the pregnancy. A woman still has a privacy right to an abortion, but states can introduce requirements of various sorts so long as they do not pose an "undue burden" or present "substantial obstacles" to this right.
In Vernonia School District v. Acton, the United States Supreme Court rules that the district's mandatory drug testing program for all student athletes does not violate students' Fourth Amendment rights. Citing the compelling school drug problem, the failure of other forms of intervention, and the peer influence of student athletes, it holds that the drug testing program meets the standard of reasonableness established in New Jersey v. T.L.O. The Court also holds that the test itself is not unreasonably invasive of the students' privacy. Athletes, it argues, are accustomed to less privacy than other students as they shower and change in a common locker room.
In Stenberg v. Carhart, the United States Supreme Court strikes down a Nebraska law that prohibits partial birth abortions except when necessary to save the life of the mother. The Court holds that the law does not include an allowance for abortions necessary to protect the mother's health. And the Court further holds that the law is ambiguous—it fails to adequately differentiate between the method of abortion being prohibited and other legal late-term methods. This ambiguity, the Court argues, may discourage doctors from performing even legal abortions thereby posing an "undue burden" on women seeking an abortion.
In Gonzales v. Carhart and Gonzales v. Planned Parenthood, the United States Supreme Court upholds the Partial Birth Abortion Ban Act passed by Congress in 2003. The law prohibits a specific form of abortion in which the fetus is destroyed after being removed from the uterus. The Court holds that the law does not impose an undue burden since the more common method of dilation and extraction, in which the fetus is destroyed before removal, is unaffected by the ban and therefore still available to women. The majority of the Court argues that the essential protections of Roe v. Wade are left unaffected. But Justice Ruth Bader Ginsburg argues that the decision signals a new hostility to abortion rights within the Court.