4 ms·

Serious question: did the court ever refer to the same privacy right in non-abortion cases?

hn_throwaway_99 4y ago
Yes, specifically Thomas' concurrence argues that the privacy is the same right that underlies Griswold (right to contraception), Lawrence (private consensual sex), and Obergefell (same sex marriage), and so Thomas thinks those should be overturned as well.
- mikkergp 4y ago
  Interesting that these are all 'liberal' decisions. Do conservatives not desire privacy, or is it just that we haven't had a conservative right that needed a way to be defended. I guess a lot of things like freedom of religion and gun rights are enumerated in the constitution. In general not having a right to privacy doesn't seem reasonable in a free world. The recent scandal about California leaking gun owners seems like it could lead to a conversation about the right to privacy for gun owners. The constitution mentions a right to bear arms, it doesn't say we have to keep that gun ownership secret. Seems like this might be particularly true for the anti-government militia crowd.
  - Dracophoenix 4y ago
    IANAL. Privacy qua Griswold (and subsequently Roe) is a limited application of privacy as is commonly understood. A full right to privacy in a classically liberal sense is a right to keep something from the knowledge or access of any or all others by means of (but not limited to) omission or oath. If a right to privacy in this sense were to be applied to the CCW scandal, one could argue that California (or any state) should never have required disclosure of gun ownership in the first place or (should such information have been disclosed by the owner voluntarily) that California had violated a promise to keep such information secret unless otherwise noted.
- cryptonector 4y ago
  I looked at his concurrence and my impression was that he's saying that if substantive due process goes the way of the dodo then those decisions need to be revisited, but he didn't say reversed, and I got the impression that he wants at least some of them on a more solid foundation.
  - hn_throwaway_99 4y ago
    > then those decisions need to be revisited, but he didn't say reversed Lol, then I've got a bridge to sell you. Thomas dissented vociferously in both Lawrence and Obergefell, it's clear he wants to overturn them, not even he is trying to hide that fact. His Obergefell dissent was especially nauseating because he was trying to say how we was so "offended" that Loving was even construed to be analogous to Obergefell. He's a typical "I've got mine, fuck you" conservative.
  - giaour 4y ago
    Thomas said we could maybe think about finding a different justification for some of those rights “[a]fter overruling these demonstrably erroneous decisions." Sounds like he wants them reversed to me!
matthewmacleod 4y ago
Obergefell v. Hodges (regarding same-sex marriage) explicitly references this same right.
giaour 4y ago
Yes. Griswold v. Connecticut (case about the legality of banning contraception) is a pre-Roe example of privacy-as-bodily-autonomy. Post Roe, the same privacy right has been used to, among other things, prohibit state-mandated abortion (https://casetext.com/case/arnold-v-board-of-educ-of-escambia-county-ala-2 https://casetext.com/case/arnold-v-board-of-educ-of-escambia...) and sterilization (https://casetext.com/case/avery-v-county-of-burke https://casetext.com/case/avery-v-county-of-burke).
- cryptonector 4y ago
  But there's no privacy in things not related to contraception and abortion? What about vaccination? What about data? What about metadata? I suspect for data and metadata the answer is "the 4th Amendment covers that, see 4th Amendment jurisprudence", but that's not enough because that only limits the state and state agents, and even then not at all as to metadata, and barely as to data.
  - ta756373882 4y ago
    There is a tradition of data and metadata privacy based on Brandeis's "The Right to Privacy" from 1890. You are correct that this tradition is partly rooted in 4th amendment jurisprudence, but it has deeper foundations in English common law. Amy Gajda's Seek and Hide is an accessible introduction to the area if you are looking for a deeper dive into the subject. Many of the landmark privacy-as-bodily-autonomy decisions are related to reproductive health, but there are others. McFall v. Shrimp is another important case in the area and concerns forced medical procedures rather than reproductive health: https://en.m.wikipedia.org/wiki/McFall_v._Shimp https://en.m.wikipedia.org/wiki/McFall_v._Shimp The court found in that case that an individual could not be compelled to donate bone marrow, even though it was necessary for another to live, because that would violate "the sanctity of the individual."
    - cryptonector 4y ago
      Thanks!
deleted 4y ago
[deleted]
Dracophoenix 4y ago
The limited privacy right in Roe was invented by the Warren Court to decide Griswold vs Connecticut (contraceptions). The only other case where I recall privacy being explicitly mentioned is Lawrence vs Texas (sodomy), a case which directly derives from Griswold.
john-radio 4y ago
Yes, it's the basis of HIPAA rights, and the case legalizing gay marriage, interracial marriage, abolishing anti-sodomy laws, the list goes on...
- hn_throwaway_99 4y ago
  No, the basis of HIPAA rights are that Congress actually passed a law titled the Health Insurance Portability and Accountability Act that outlines the privacy requirements associated with healthcare.
- wbsss4412 4y ago
  HIPAA is a law, not a constitutional right, and interracial marriage had nothing to do with a right to privacy in the constitution. You’re confusing the entire doctrine of substantive due process with its specific application in finding a right to privacy in the constitution.
_23sd 4y ago
It was often referred to in decisions about whether mental patients can refuse treatment, see Rogers v. Okin for one example.

Yes, specifically Thomas' concurrence argues that the privacy is the same right that underlies Griswold (right to contraception), Lawrence (private consensual sex), and Obergefell (same sex marriage), and so Thomas thinks those should be overturned as well.

mikkergp 4y ago
Interesting that these are all 'liberal' decisions. Do conservatives not desire privacy, or is it just that we haven't had a conservative right that needed a way to be defended. I guess a lot of things like freedom of religion and gun rights are enumerated in the constitution. In general not having a right to privacy doesn't seem reasonable in a free world. The recent scandal about California leaking gun owners seems like it could lead to a conversation about the right to privacy for gun owners. The constitution mentions a right to bear arms, it doesn't say we have to keep that gun ownership secret. Seems like this might be particularly true for the anti-government militia crowd.
- Dracophoenix 4y ago
  IANAL. Privacy qua Griswold (and subsequently Roe) is a limited application of privacy as is commonly understood. A full right to privacy in a classically liberal sense is a right to keep something from the knowledge or access of any or all others by means of (but not limited to) omission or oath. If a right to privacy in this sense were to be applied to the CCW scandal, one could argue that California (or any state) should never have required disclosure of gun ownership in the first place or (should such information have been disclosed by the owner voluntarily) that California had violated a promise to keep such information secret unless otherwise noted.
cryptonector 4y ago
I looked at his concurrence and my impression was that he's saying that if substantive due process goes the way of the dodo then those decisions need to be revisited, but he didn't say reversed, and I got the impression that he wants at least some of them on a more solid foundation.
- hn_throwaway_99 4y ago
  > then those decisions need to be revisited, but he didn't say reversed Lol, then I've got a bridge to sell you. Thomas dissented vociferously in both Lawrence and Obergefell, it's clear he wants to overturn them, not even he is trying to hide that fact. His Obergefell dissent was especially nauseating because he was trying to say how we was so "offended" that Loving was even construed to be analogous to Obergefell. He's a typical "I've got mine, fuck you" conservative.
- giaour 4y ago
  Thomas said we could maybe think about finding a different justification for some of those rights “[a]fter overruling these demonstrably erroneous decisions." Sounds like he wants them reversed to me!

matthewmacleod 4y ago

Obergefell v. Hodges (regarding same-sex marriage) explicitly references this same right.

giaour 4y ago

Yes. Griswold v. Connecticut (case about the legality of banning contraception) is a pre-Roe example of privacy-as-bodily-autonomy. Post Roe, the same privacy right has been used to, among other things, prohibit state-mandated abortion (https://casetext.com/case/arnold-v-board-of-educ-of-escambia-county-ala-2 https://casetext.com/case/arnold-v-board-of-educ-of-escambia...) and sterilization (https://casetext.com/case/avery-v-county-of-burke https://casetext.com/case/avery-v-county-of-burke).

cryptonector 4y ago
But there's no privacy in things not related to contraception and abortion? What about vaccination? What about data? What about metadata? I suspect for data and metadata the answer is "the 4th Amendment covers that, see 4th Amendment jurisprudence", but that's not enough because that only limits the state and state agents, and even then not at all as to metadata, and barely as to data.
- ta756373882 4y ago
  There is a tradition of data and metadata privacy based on Brandeis's "The Right to Privacy" from 1890. You are correct that this tradition is partly rooted in 4th amendment jurisprudence, but it has deeper foundations in English common law. Amy Gajda's Seek and Hide is an accessible introduction to the area if you are looking for a deeper dive into the subject. Many of the landmark privacy-as-bodily-autonomy decisions are related to reproductive health, but there are others. McFall v. Shrimp is another important case in the area and concerns forced medical procedures rather than reproductive health: https://en.m.wikipedia.org/wiki/McFall_v._Shimp https://en.m.wikipedia.org/wiki/McFall_v._Shimp The court found in that case that an individual could not be compelled to donate bone marrow, even though it was necessary for another to live, because that would violate "the sanctity of the individual."
  - cryptonector 4y ago
    Thanks!

deleted 4y ago

[deleted]

Dracophoenix 4y ago

The limited privacy right in Roe was invented by the Warren Court to decide Griswold vs Connecticut (contraceptions). The only other case where I recall privacy being explicitly mentioned is Lawrence vs Texas (sodomy), a case which directly derives from Griswold.

john-radio 4y ago

Yes, it's the basis of HIPAA rights, and the case legalizing gay marriage, interracial marriage, abolishing anti-sodomy laws, the list goes on...

hn_throwaway_99 4y ago
No, the basis of HIPAA rights are that Congress actually passed a law titled the Health Insurance Portability and Accountability Act that outlines the privacy requirements associated with healthcare.
wbsss4412 4y ago
HIPAA is a law, not a constitutional right, and interracial marriage had nothing to do with a right to privacy in the constitution. You’re confusing the entire doctrine of substantive due process with its specific application in finding a right to privacy in the constitution.

_23sd 4y ago

It was often referred to in decisions about whether mental patients can refuse treatment, see Rogers v. Okin for one example.