The So-Called Right to Privacy

Jamal Greene, Columbia Law School


The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the 'so-called' right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its proponents on the Court as aspects of constitutional privacy. Other rights that might be protected by a constitutional right to privacy, such as the right to refuse medical treatment or the right to assisted suicide, are either justified on liberty grounds or are not constitutionally protected at all. The Court’s move from privacy to liberty as a constitutional basis for the freedom to make fundamental life decisions strengthens the rights themselves by anchoring them to constitutional text in a text-happy era, and represents a victory for Justice Stevens, who has long advocated such a shift.