Right to Privacy in United States

Right to Privacy

International Context

In the post war era, first France, and the United States, then Germany, and finally Britain recognized a generalized right of privacy. This right can be said to include a right to one’s image (Recht auf eigenes Bild), and a right to non-divulgence of true but personal facts (public disclosure of private facts). American law also includes:

-a right against misappropriation of one’s identity,

-a right against intrusion on ones sphere of integrity

-a right against placing the plaintiff in a false light.

With the adoption of the human rights act in Britain, American law may (or may not) influence British law in this field. Privacy rights protect against wiretapping and may extend to the heirs of a decedent.

Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869.
Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193.

The American rights are discussed briefly below.

Case Law

The leading case is Roe v. Wade.

On June 27, 2016, the Supreme Court rendered a split (5-3) decision. The majority held that
both the admitting-privileges requirement and the surgical-center requirement place a substantial obstacle in the path of women seeking an abortion, in violation of Casey. According to the Court, “nothing in Texas’ record evidence … shows that, compared to the prior law … the new law advanced Texas’ legitimate interest in protecting women’s health.” 136 S. Ct. 2292, 2311. With respect to the admitting privilege requirement, the Court found that the State had cited no instance “in which the new requirement would have helped even one woman obtain better treatment[.]” Id. Turning to the surgical-center requirement, the majority found that requirement unconstitutional as well, reasoning that:

• “abortions taking place in an abortion facility are safe—indeed, safer than numerous procedures … to which Texas does not apply its surgical-center requirements” (e.g. child birth, colonoscopy, and liposuction), and
• the requirement places a substantial obstacle in the path of women seeking an abortion because it “would … reduce the number of abortion facilities available to seven or eight facilities[.]” Id. at 2315.

Justice Ginsburg’s concurrence expanded on the majority opinion, noting that “it is beyond rational belief [the Texas law] could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’ … [Such laws] cannot survive judicial inspection.” Id. at 2321. Justice Thomas dissented, as did Justice Alito (joined by Chief Justice Roberts and Justice Thomas).