Privacy Rights Under the Constitution: Procreation, Child Rearing, Contraception, Marriage, and Sexual Activity

"A line of Supreme Court cases establishes that the U.S. Constitution guarantees a person’s ability to make certain decisions in matters related to procreation, child rearing, contraception, marriage (including interracial marriage and same-sex marriage), and consensual sexual activity. In some instances, the Supreme Court has interpreted the Due Process Clauses of the Fifth and Fourteenth Amendments to provide substantive protections against government interference in these personal matters. The Supreme Court has also characterized the Equal Protection Clause as supplementing these due process protections when a state seeks to limit the exercise of protected rights to particular groups, resulting in the Court striking down laws that, for example, denied the “fundamental” right to marriage to interracial or samesex couples. The Court’s approach to identifying rights protected by the Constitution has changed over the years. In the 1997 decision Washington v. Glucksberg, the Court stated that the standard for recognizing such rights is that they must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” Before and after Glucksberg, however, the Court acknowledged that some rights do not necessarily fit into that historical framework.

In the 2022 decision Dobbs v. Jackson Women’s Health Organization, the Supreme Court upheld a Mississippi law prohibiting abortion after 15 weeks on the ground that the Constitution does not protect a right to abortion. Employing the Glucksberg framework, Dobbs overruled Roe v. Wade and PlannedParenthood of Southeastern Pennsylvania v. Casey, which recognized and then reaffirmed a right to theprocedure under the Due Process Clause. Dobbs is the first decision in recent history in which the Supreme Court overruled prior decisions recognizing a right the Court had previously characterized as“fundamental” under the Constitution. Some have suggested that other rights, such as the right to contraceptive access, that were recognized by the Court under a different framework than Glucksberg may be reassessed. Yet, the Dobbs majority explicitly averred that its ruling does not cast doubt on the continuing validity of Court precedents recognizing rights outside the abortion context, and, furthermore, considerations for continuing to recognize these precedents may be different, and more compelling, than in Dobbs..."
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