Privacy: Pre- and Post-Dobbs

Authors

Rona Kaufman

Abstract

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015 and included: (1) the right to parent-that is the right to care, custody, and control of one's children;¹ (2) a qualified right to be safe from forced sterilization;² (3) the right of married couples and single persons to determine whether to bear or beget a child, including the right to access contraception and abortion;³ (4) the right to marry a person, without regard to that person's race or sex;⁴ and (5) a limited right to autonomy with regard to intimate conduct, association, and relationship.⁵ In 2022, with its decision in Dobbs v. Jackson Women's Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court.⁶ This essay seeks to place Dobbs in the context of the Court's family privacy cases in an effort to understand the Court's reasoning and the impact the decision may have in the future. To that end, Part I reviews ninety years of Supreme Court privacy jurisprudence. Part II considers the Dobbs decision, including the majority, concurring, and dissenting opinions. Part III considers how Dobbs may impact privacy jurisprudence moving forward.

First Page

62

Recommended Citation

Rona Kaufman, Privacy: Pre- and Post-Dobbs, 61 Duq. L. Rev. 62 (2023).
Available at: https://dsc.duq.edu/dlr/vol61/iss1/6