Privacy Rights Under the Constitution: Procreation, Child Rearing, Contraception, Marriage, and Sexual Activity
Legal Sidebari
Privacy Rights Under the Constitution:
Procreation, Child Rearing, Contraception,
Marriage, and Sexual Activity
September 14, 2022
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 same-
sex 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 Planned
Parenthood of Southeastern Pennsylvania v. Casey, which recognized and then reaffirmed a right to the
procedure 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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CRS Legal Sidebar
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This Legal Sidebar outlines the constitutional framework for privacy rights, reviews select Supreme Court
decisions, discusses legal considerations following the Dobbs decision, and presents considerations for
Congress.
Constitutional Framework
Due Process
The Due Process Clauses of the Fifth and Fourteenth Amendments generally prohibit federal and state
governments from “depriv[ing] any person of life, liberty, or property, without due process of law.” Due
process, while not “precisely defined,” generally refers to a “fundamental fairness” requirement when the
government seeks to burden an individual’s life, liberty, or property interests. According to the Supreme
Court, the “touchstone” of due process is “the protection of the individual against arbitrary action of
government.” The Court has determined that the Due Process Clauses contain both “substantive” and
“procedural” components. While procedural due process is concerned with the fairness of the procedures
employed when the government seeks to deprive an individual of one of the aforementioned interests, the
substantive component “bars certain arbitrary, wrongful government actions ‘regardless of the fairness of
the procedures used to implement them.’” The substantive due process inquiry revolves around whether
the government’s deprivation of a person’s life, liberty, or property is justified by a sufficient purpose.
The Supreme Court has long held that some protected liberty interests are so important that they are
deemed “fundamental rights,” subjecting governmental deprivations of those interests to greater judicial
scrutiny as described below.
But when is a liberty interest considered “fundamental”? Justices and scholars have debated how the
Court should decide this question, and the Court often refrained in older decisions from “defin[ing] with
exactness the liberty thus guaranteed” by the Due Process Clause. In recent decades, though, the Court
has often employed a historical approach to guide and restrain the scope of substantive due process. In the
1997 decision Washington v. Glucksberg, the Court held that assistance in committing suicide is not a
fundamental liberty interest protected under the Due Process Clause. The Court declared that fundamental
liberties are those “deeply rooted in this Nation’s history and tradition.” The Court also called for a
“careful description” of any asserted right. The Court in Dobbs—the most recent case considering
whether a claimed liberty interest qualifies as fundamental—cited Glucksberg in concluding that access to
abortion is not a fundamental right.
If a liberty interest is deemed a fundamental right, the challenged law or government action must
generally satisfy the most stringent standard of judicial review: strict scrutiny. Strict scrutiny requires the
government to justify the law by demonstrating that it serves a compelling government interest and is
narrowly tailored to achieve that interest (the law is not too broad or too limited). If a liberty interest is
not considered fundamental, a court generally need only apply the rational basis test; the law or
government action must be rationally related to a legitimate government purpose. For instance, as
addressed in Dobbs, rational basis review applies to abortion restrictions because abortion is not a
fundamental right.
Equal Protection
The Fourteenth Amendment’s Equal Protection Clause has also played a role in the Supreme Court’s
recognition of certain fundamental rights protected by the Constitution. The Clause provides that states
must not “deny to any person ... the equal protection of the laws.” (Equal protection principles apply to
the federal government through the Fifth Amendment’s Due Process Clause.) At times, a government
restriction may draw a distinction among people. The equal protection inquiry asks whether the
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government’s classification is justified by a sufficient purpose. While most classifications drawn by the
government are subject to rational basis review, some distinctions are subject to heightened scrutiny. For
example, race-based classifications are subject to strict scrutiny, and gender-based classifications are
subject to an intermediate standard between strict scrutiny and rational basis.
The Court has also employed equal protection principles to expand rights recognized under substantive
due process to new classes of persons. For instance, the Court held that restricting the use of
contraception to married couples denied unmarried individuals equal protection and violated their
fundamental right to contraception. Laws and government actions that seek to limit particular groups’
exercise of a fundamental right are subject to strict scrutiny, whether or not the government employs a
classification that would typically trigger more stringent review under the Equal Protection Clause.
Privacy Rights
The Supreme Court has held that the Constitution protects as fundamental an individual’s autonomy to
make certain decisions, relying on substantive due process and sometimes equal protection principles to
supplement due process protections. The discussion below outlines major decisions in this area.
Child Rearing
Since the early 20th century, the Supreme Court has recognized a parent’s right to control the upbringing
of their children under substantive due process. In Meyer v. Nebraska, the Court struck down a state law
that prohibited teaching in any language other than English in public schools. The Court reasoned that the
statute invaded “liberty” guaranteed by the Fourteenth Amendment and declared that parents have a right
to make decisions regarding the upbringing of their children. The Court reaffirmed this right in Pierce v.
Society of Sisters, in which the Court voided a state law requiring children to attend public schools. The
right of a parent to control the upbringing of their child is not absolute, however; a state may intervene if
necessary to protect a child, as such an action may “be necessary to accomplish [a state’s] legitimate
objectives.”
Marriage
Other cases have established a fundamental right to marry. In 1967, the Court first recognized the
fundamental right to marry as a liberty interest protected under the Due Process Clause. In Loving v.
Virginia, the Court declared unconstitutional a Virginia statute that prohibited interracial marriage. Chief
Justice Warren, writing for a unanimous court, first held that the state anti-miscegenation law was an
equal protection violation based on an impermissible racial classification. The Loving court then also
recognized a right to marry as a fundamental right protected under substantive due process. The Court has
reaffirmed the right to marry on several occasions. In 2015, the Court held in Obergefell v. Hodges that
same-sex couples can exercise the fundamental right to marry in all states, and that states must recognize
marriages validly performed out-of-state. The Court reasoned that state laws limiting marriage to
opposite-sex couples excluded a category of persons from exercising the fundamental right to marry
under substantive due process. The majority also discussed in the substantive due process analysis that
such laws deny equal protection to individuals because of their sexual orientation.
Sexual Activity
In the 2003 decision Lawrence v. Texas, the Court held that the substantive component of the Due Process
Clause protects a right to engage in private, consensual sexual activity. Two men engaging in sexual
activity had been convicted under a Texas law prohibiting “deviate sexual intercourse.” The Court struck
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down the law, ruling that states may not prohibit private sexual activity between consenting adults. Yet,
the Lawrence Court did not specify whether such right is fundamental, and it is unclear what level of
scrutiny would apply upon a future legal challenge. One circuit court concluded shortly after Lawrence
that sexual activity is not a fundamental right subject to strict scrutiny. Lawrence expressly overruled
Bowers v. Hardwick, in which the Court held that the right to privacy does not protect a right to engage in
private, consensual same-sex activity.
Reproductive Autonomy
The Court has generally recognized a constitutionally protected right to make certain choices related to
reproduction. At first, in the 1926 decision Buck v. Bell, the Court upheld a state’s ability to sterilize an
18-year-old woman, described as “feeble-minded,” under a law that allowed for the involuntary
sterilization of “mental defectives” held in state institutions. The Court rejected the due process argument
that no circumstance could justify a sterilization order. Though it did not expressly overrule Buck, the
Court later held in Skinner v. Oklahoma that the right to procreate is a fundamental right, and that
government-imposed involuntary sterilization (certain criminal defendants in the Skinner case) must
satisfy the strict scrutiny test.
One of the most significant cases recognizing a right to make certain personal decisions was the Court’s
1965 decision in Griswold v. Connecticut. There, the Supreme Court declared unconstitutional a state law
that prohibited the use and distribution of contraceptives to married couples. Justice Douglas, writing for
the majority, reasoned that a right to privacy was implicit in the Bill of Rights, particularly the First,
Third, Fourth, and Fifth Amendments, and protected “the sacred precincts of the martial bedroom.” The
Court expressly rejected the argument that privacy was a liberty interest under the Due Process Clause.
The Court’s approach, however, quickly shifted. Less than a decade later, the Court moved away from the
recognition of a generalized “right to privacy” found in the Bill of Rights to instead identifying certain
matters of personal intimacy as being among the liberties protected by the Due Process Clause. The denial
of these protected liberties to specific groups, in turn, were sometimes found to violate equal protection
principles as well. In the 1972 decision Eisenstadt v. Baird, the Supreme Court expanded the right to
contraception to unmarried individuals on equal protection grounds because the state law treated
unmarried individuals differently from married couples. The Court also highlighted the right to privacy:
“[i]f the right to privacy means anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.” In the term after Eisenstadt, the Court decided Roe v. Wade, in which it
held that the Constitution protects a right to terminate pregnancy before viability. In the 7-2 decision, the
Court in Roe identified the right to privacy as a “liberty” interest under the Due Process Clause. The Roe
court explained that the right to terminate pregnancy accords with the right to privacy as laid out in
Griswold and Eisenstadt, specifically the right to decide “whether or not to bear or beget a child.” Roe
acknowledged a valid state interest in “protecting potential life,” and the Court’s decision included a
trimester framework to strike a balance between a woman’s choice and a state’s interest in potential life.
Then, in another challenge to state contraception restrictions, the Court in the 1977 decision Carey v.
Population Services International nullified a New York law that made it a crime to sell or distribute
contraceptives to minors younger than 16 years old. The Court reiterated that the right to privacy, as laid
out in Griswold, Eisenstadt, and Roe, is a liberty interest under the Fourteenth Amendment, and clarified
that laws restricting contraceptives must satisfy strict scrutiny.
Nearly two decades later in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court
affirmed Roe but added that the government may regulate abortions before viability if the regulation does
not impose an undue burden. Like Roe, Casey recognized a larger reproductive right but sought to strike a
balance between potential state interests prior to viability and the choice to seek an abortion. (For more
information on the judicial history of abortion, see CRS Report RL33467, Abortion: Judicial History and
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Legislative Response, by Jon O. Shimabukuro.) However, in the 2022 decision Dobbs v. Jackson Women’s
Health Organization, the Court revisited whether the Constitution protects abortion as a fundamental right
under substantive due process. The Court upheld a Mississippi law prohibiting abortion after 15 weeks.
Overruling Roe and Casey, the Court reasoned that the Constitution neither expressly mentions abortion
nor implicitly guarantees a right to abortion under substantive due process.
Legal Considerations Post-Dobbs
Dobbs may provide guidance in future legal challenges outside the abortion context on how fundamental
rights are identified under substantive due process, though much remains unclear. The Dobbs court
identified a historical approach—the Glucksberg framework—as the controlling method to identify rights
protected under the Due Process Clause. The claimed right “must be ‘deeply rooted in this Nation’s
history and tradition’ and ‘implicit in the concept of ordered liberty.’” This approach appears to call for
consideration of the level of abstraction at which the right should be stated and what historical evidence
constitutes a sufficient record of history and tradition. It seems unlikely that the current Court would
recognize other fundamental rights unless the claimed right satisfies the Glucksberg framework.
The reversal of Roe and Casey has raised question over whether other Court decisions recognizing certain
fundamental rights may be reexamined, however. Justice Thomas’s concurrence and the joint dissent by
three Justices of the Court reflect some skepticism in the continued recognition of certain privacy rights in
light of Dobbs, particularly Griswold, Lawrence, and Obergefell. The Dobbs majority, however,
emphasized that the ruling does not “undermine” other decisions, and distinguished abortion from these
other rights as involving a valid state interest in protecting fetal life. This “critical moral question,”
according to the Court, is better reserved for the people and their elected representatives.
In overruling Roe and Casey, the Court not only considered whether the right to abortion comported with
the Glucksberg framework, but also whether principles of stare decisis counseled against overruling prior
decisions recognizing a right to abortion. The doctrine of stare decisis generally provides that courts
should adhere to precedent unless there is sufficient reason to change course, even when a later Court may
have decided an issue differently. In Dobbs, the majority considered whether stare decisis counseled to
adhering to Roe and Casey’s holdings, and concluded that five factors favored overruling these decisions.
First, the Court held that Roe and Casey erroneously interpreted the Constitution to provide for a right to
abortion. Second, the Court reasoned that Roe “stood on exceptionally weak grounds,” criticizing Roe for
failing “to ground its decision in text, history, or precedent” and relying “on an erroneous historical
narrative,” among other shortcomings. Third, the Court concluded that Casey’s undue burden framework
was not sufficiently “workable.” Fourth, the Court stated that Roe and Casey distorted other legal
doctrines. Lastly, the Court concluded that there was a lack of concrete reliance on Roe and Casey
because abortions are generally unplanned and reproductive planning can be adjusted.
The doctrine of stare decisis, according to the Dobbs court, would likely inform the Supreme Court’s
decision on whether to reassess other substantive due process rights that it has previously recognized.
Although the Dobbs majority pointed to several factors in its stare decisis analysis counseling overruling
Roe and Casey, two of the most notable were the majority’s conclusions that “Roe was egregiously wrong
from the start” and “[i]ts legal reasoning was exceptionally weak.” Other stare decisis factors may be
important, as well. For example, in the contexts of marriage and contraception, the stare decisis factors of
reliance interests and workability may be different, and perhaps more compelling to a future Court than
they were in the abortion context.
While Dobbs stated that Glucksberg’s historical approach is the proper one, the Court has, at times,
declined to rely on historical practices when determining who can exercise certain rights. Loving first
recognized the fundamental right to marry and did not define the bounds of this fundamental right by
reference to who was allowed to marry historically. Writing for the majority in Obergefell, in which the
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Court extended the fundamental right to marry to same-sex couples, Justice Kennedy declared that the
Glucksberg historical approach did not necessarily conflict with holding that same-sex couples could
exercise the fundamental right to marry. He rejected the argument that the “careful description” of the
right at issue was a right to same-sex marriage. Justice Kennedy stated that the issue at hand involved the
“right to marry in its comprehensive sense, asking if there was sufficient justification for excluding the
relevant class from the right.” The Court observed that “[i]f rights were defined by who exercised them in
the past, then received practices could serve as their own continued justification.” How the Court
describes a right and how it applies historical practice may thus be instrumental in determining whether it
deems the right constitutionally protected.
In addition, whether or not a claimed fundamental right is at issue, the Equal Protection Clause may
protect against certain government infringements if a law or action by the government treats one class of
persons differently from another. Laws and government actions encompassing suspect classifications
(e.g., race or sex) must satisfy a more stringent level of judicial scrutiny, either strict or intermediate
scrutiny depending on the classification (though the Dobbs Court stated that the denial of abortion access
is not a sex-based classification subject to heightened scrutiny).
Regardless of whether Dobbs suggests a willingness by the Supreme Court to reconsider its prior
recognition of a fundamental right using the Glucksberg framework, lower courts remain bound by the
Court’s earlier decisions in these cases. As the Court has repeatedly advised, even when a Supreme Court
decision “appears to rest on reasons rejected in some other line of decisions,” the lower courts “should
follow the case which directly controls, leaving to this Court the prerogative of overruling its own
decisions.” In other words, whether or not Dobbs leads to the Supreme Court’s reconsideration of its prior
recognition of other rights outside the abortion context, lower courts must adhere to those decisions until
and unless a future Court overrules them.
Congressional Considerations
Congress may consider whether to use its legislative authority to enact legislation that protects or
otherwise regulates areas of concern in matters related to procreation, child rearing, contraception,
marriage, and consensual sexual activity between adults. Examples of potential sources of congressional
authority include the Commerce Clause, the spending power, and Section 5 of the Fourteenth
Amendment. Congress’s ability to codify an individual right currently or formerly held by the Supreme
Court to be constitutionally protected is discussed in CRS Legal Sidebar LSB10787, Congressional
Authority to Regulate Abortion, by Kevin J. Hickey and Whitney K. Novak.
The 117th Congress has introduced several pieces of legislation related to privacy rights. The House of
Representatives passed the Right to Contraception Act (H.R. 8373), which would establish a federal right
for individuals to obtain and use contraceptives. The Respect for Marriage Act (H.R. 8404), another bill
the House passed, would provide some protections for marriage, including same-sex and interracial
marriages. The legislation would repeal provisions in federal law that define marriage as between a man
and woman. (The Supreme Court nullified this provision in 2013 in United States v. Windsor, but the
provision remains on the books.) H.R. 8404 would also require states to recognize valid marriages
performed out-of-state—regardless of sex, race, ethnicity, or national origin—through Congress’s
authority under the Full Faith and Credit Clause. Other bills introduced aim to restrict states from
adopting laws that interfere with individuals exercising fundamental rights, such as consensual sexual
activity.
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Author Information
Kelsey Y. Santamaria
Legislative Attorney
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