Activity: The Right to Privacy
Megan Boisvert (Stumpner)
Helms School of Government, Liberty University
GOVT 421- American Constitution History
Professor David VanHeemst
August 15, 2025
The Right to Privacy 2
Introduction
The American legal system has struggled to resolve the abortion debate because it
involves conflicts between individual rights, moral values, and constitutional powers. The
Supreme Court established abortion as a fundamental right through Roe v. Wade (1973) by
interpreting the Fourteenth Amendment's Due Process Clause as protecting privacy rights,
which Griswold v. Connecticut (1965) had previously established. The supporters celebrated Roe
as a victory for personal freedom and equality, yet critics attacked its foundation on an unproven
privacy right.
The ongoing debate reveals a fundamental disagreement between those who believe
the Constitution should adapt to new circumstances and those who demand strict adherence to
its original text. The constitutional right to an abortion started from Roe v. Wade, but the legal
and moral support for privacy as an abortion right continues to have intense debate that needs
evaluation that is based on modern constitutional interpretation and ethical perspectives.
The Right to Privacy: Griswold and Its Constitutional Roots
In the case of Griswold v. Connecticut (1965), the Supreme Court addressed a
Connecticut statute that made it a crime for any person, including married couples, to use
contraceptives. The case arose when Estelle Griswold, executive director of the Planned
Parenthood League of Connecticut, and Dr. C. Lee Buxton, a physician, were convicted for
providing contraceptive advice and devices to married patients (Griswold v. Connecticut, 381
U.S. 479 (1965)). In a 7–2 decision, the Court ruled the law unconstitutional. Writing for the
majority, Justice William O. Douglas acknowledged that the Constitution contains no explicit
mention of "privacy." However, he argued that several provisions of the Bill of Rights—such as
the First Amendment's freedom of association, the Third Amendment's protection against the
quartering of soldiers, the Fourth Amendment's prohibition of unreasonable searches and
seizures, and the Fifth Amendment's protection against self-incrimination—create "penumbras"
and "emanations" that collectively establish a constitutional "zone of privacy." Within this zone,
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the marital relationship was deemed too sacred and intimate to be regulated by the state. The
reasoning in Griswold quickly became a flashpoint in the broader debate over constitutional
interpretation (Griswold v. Connecticut, 381 U.S. 479 (1965)).
The loose constructionists supported the decision as a legitimate and necessary
application of the Fourteenth Amendment's Due Process Clause, as they saw it as protecting
fundamental liberties that are important to the people's bodies. This interpretive philosophy
views the Constitution as a living document, adaptable to changing social conditions and
evolving moral understanding. Strict constructionists did not support the ruling in this case, as it
is an example of judicial activism that contends that it manufactured rights without textual or
historical grounding. To them, if a right is not explicitly stated in the Constitution or deeply
rooted in the nation's history and traditions, its recognition should come through the legislative
process, not judicial decree.
The recognition of a generalized privacy right in Griswold also marked a significant
departure from America's legal and religious heritage. The Anglo-American legal tradition
inherited from English common law permitted abortion before "quickening" but became
increasingly restrictive during the 19th century, as state legislatures criminalized the practice in
the interest of protecting prenatal life and maternal health. The religious influence of the
Christian doctrine reinforced the trends by teaching that human life begins before birth, making
abortion morally wrong. Psalm 139:13-16, speaks of God's knowledge and formation of
individuals in the womb.
“For you created my inmost being you knit me together in my mother’s womb.
I praise you because I am fearfully and wonderfully made; your works are wonderful, I know
that
full well.
My frame was not hidden from you when I was made in the secret place,when I was woven
together in the depths of the earth.
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Your eyes saw my unformed body; all the days ordained for me were written in your book
before one of them came to be.”
Given those circumstances, Griswold's expansive privacy doctrine represented a new
judicial willingness to protect intimate personal decisions from state interference. The ruling of
this case has the doctrinal foundation for Roe v. Wade (1973), where the Court extended the
privacy right beyond contraception to encompass the decision to terminate a pregnancy.
Roe v. Wade and the Expansion of Privacy to Abortion Rights
In Roe v. Wade (1973), the Supreme Court confronted a Texas statute that made it a
crime to procure or perform an abortion except to save the life of the mother. "Jane Roe," a
pseudonym for Norma McCorvey (Jane Roe, et al., appellants, V. Henry Wade), challenged the
law on constitutional grounds by arguing that it violated her right to privacy under the Due
Process Clause of the Fourteenth Amendment. In a 7–2 decision, the Court, through Justice
Harry Blackmun's majority opinion, held that the right to privacy—first recognized in Griswold
v. Connecticut—was "broad enough to encompass a woman's decision whether or not to
terminate her pregnancy (Jane Roe, et al., appellants, V. Henry Wade.)." The Court sought to
balance this right against the state's interests in protecting maternal health and potential human
life. To achieve this, Roe established a trimester framework: during the first trimester, the
abortion decision was left entirely to the woman and her physician; in the second trimester, the
state could impose regulations reasonably related to maternal health; and in the third trimester,
once the fetus was viable, the state could prohibit abortion except when necessary to protect
the life or health of the mother (Jane Roe, et al., appellants, V. Henry Wade.).
The strengths of Roe lay in its recognition of women's autonomy and its attempt to
create a uniform national standard, thereby reducing the disparities and dangers associated
with stateby-state abortion bans. The supporters praised the decision as an extension of the
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privacy rights that were recognized in the Griswold case, framing it as important for gender
equality, bodily autonomy, and the women's ability to participate in society fully.
The trimester framework reflected a practical effort to balance individual liberty with
legitimate state interests. However, Roe's constitutional foundation drew significant criticism
from across the legal spectrum. The decision relied on a privacy right that is not explicitly stated
in the Constitution and stretched the Griswold precedent from marital contraception to
abortion, a leap many found unsupported by history or text. Critics argued that the trimester
framework resembled legislative policymaking rather than constitutional interpretation, and it
raised concerns that the Court had overstepped the judicial role.
Justice Byron White was the judge on this case and described the ruling as an "exercise
of raw judicial power," and emphasized that the Constitution nowhere mentions abortion and
that the issue should be resolved through the democratic process (Jane Roe, et al., appellants, V.
Henry Wade). Even some scholars who supported abortion rights expressed discomfort with
Roe's reasoning, noting its vulnerability to future challenges. By grounding abortion rights in an
implied privacy doctrine rather than an explicit textual guarantee, Roe left it open to
reinterpretation and eventual reversal. This vulnerability came to fruition in Dobbs v. Jackson
Women's Health Organization (2022).
Dobbs v. Jackson and the Overruling of Roe
In Dobbs v. Jackson Women's Health Organization (2022), the Supreme Court reviewed a
Mississippi law banning most abortions after fifteen weeks of pregnancy, a direct challenge to
the viability standard established in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey
(1992). The question before the Court was whether all pre-viability prohibitions on elective
abortions were unconstitutional. In a 6–3 decision, the Court upheld Mississippi's law, and in a
5–4 vote, the majority went further, explicitly overruling both Roe and Casey (Dobbs v. Jackson
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Women's Health Organization (2022)). Writing for the majority, Justice Samuel Alito argued that
the Constitution "makes no reference to abortion, and no such right is implicitly protected by
any constitutional provision," including the Due Process Clause of the Fourteenth Amendment
(Dobbs v. Jackson Women's Health Organization (2022)). Applying the Court's substantive due
process test, the opinion concluded that abortion is not a right "deeply rooted in the Nation's
history and tradition" or "implicit in the concept of ordered liberty." Instead, the Court returned
authority over abortion regulation to the states, emphasizing that such moral and policy
questions should be resolved through the democratic process rather than judicial decree.
From a strict constructionist perspective, Dobbs represented a course correction that
restored fidelity to the constitutional text and historical understanding.
The supporters argued that the ruling respected the framers' intent by limiting the judiciary's
role in interpreting, rather than creating constitutional rights, and viewed the ruling as a
reaffirmation of state sovereignty and legislative primacy in matters of profound moral
significance. The loose constructionists criticized Dobbs as a retreat from the Court's
responsibility to protect individual liberties against majoritarian control, and they argued that
the decision failed to account for evolving societal understandings of equality and bodily
autonomy that effectively allow states to rights that had been recognized for half a century.
The reasoning in Dobbs also aligns closely with America's constitutional and religious
heritage. Historically, abortion regulation was left to the states, and for much of U.S. history,
state laws restricted or prohibited abortion, reflecting prevailing moral and religious values.
Christian traditions have long held that human life begins before birth, shaping public policy and
legal norms around the sanctity of life. By restoring abortion policy to the states, Dobbs echoes
the constitutional structure envisioned by the farmers, in which local communities could
legislate according to their own moral convictions and historical traditions. For its supporters,
this return to state control is not only constitutionally sound but also more consistent with the
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nation's historical and religious foundations (Dobbs v. Jackson Women's Health Organization
(2022)).
Conclusion
The historical trajectory from Griswold to Roe and finally to Dobbs reveals the shifting
constitutional landscape surrounding abortion and the right to privacy. Griswold v. Connecticut
introduced an expansive interpretation of privacy rights through the "penumbras" of the Bill of
Rights, laying the groundwork for Roe v. Wade, as they extended those rights to include a
woman's decision to terminate a pregnancy. While Roe was groundbreaking in recognizing
abortion as a constitutional right, its reliance on an implied privacy doctrine sparked decades of
legal and moral debate. Dobbs v. Jackson, in turn, rejected this privacy foundation, concluding
that abortion is neither explicitly protected by the Constitution nor deeply rooted in American
history and tradition. When measured against America's founding principles, particularly the
framers' intent to limit judicial power and reserve significant moral questions to the states.
Dobbs more closely aligns with a strict constructionist reading of the Constitution and the
nation's historical and religious heritage. This shift not only redefines abortion rights but also
signals a broader judicial philosophy that may affect how the Court approaches other
substantive due process cases in the future. By placing abortion policy back into the democratic
process, Dobbs underscores the continuing tension between individual rights and collective
moral governance.
This balance will remain central to constitutional law and public policy for generations to come.
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Resources:
Dobbs v. Jackson Women's Health Organization (2022). National Constitution
Center –constitutioncenter.org. (n.d.-a).
https://constitutioncenter.org/the-constitution/supremecourt-case-library/dobbs-v-jackson-
womens-health-organization
Griswold v. Connecticut, 381 U.S. 479 (1965). (n.d.-h).
https://tile.loc.gov/storageservices/service/ll/usrep/usrep381/usrep381479/usrep381479.pdf
Legal Information Institute. (n.d.-a). Jane Roe, et al., appellants, V. Henry Wade. Legal
Information Institute. https://www.law.cornell.edu/supremecourt/text/410/113
Psalm 139:13–16 NKJV - for you formed my inward... Biblia. (n.d.).
https://biblia.com/bible/nkjv/psalm/139/13-16?ssi=0
The right to privacy. Law Library Services - CT Judicial Branch. (n.d.).
https://www.jud.ct.gov/lawlib/history/privacy.htm
Yale. (n.d.-k). https://openyls.law.yale.edu/server/api/core/bitstreams/5f40a803-8e88-
4b6e a396-8232954433d1/content
