U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

American Courts and Privacy of the Body

NCJ Number
J Bason
Date Published
125 pages
This work examines both State and Federal court cases in an attempt to show that privacy has come to be a basic, constitutional right to be used against society's intrusions in areas of personal and sexual privacy.
The right of privacy has only been an explicitly recognized independent constitutional right since the early 1960's. Cases examined show that the right of privacy emanates from a 'penumbra' of amendments to the Constitution. The courts have used these amendments (first, third, fourth, fifth, sixth, eighth, ninth, and fourteenth) to develop a right to privacy protection. Examination of these cases brings out three main points. The right of privacy has been extended almost completely to (1) private marital affairs, (2) the availability of contraceptives to married couples and unmarried persons, and (3) to a woman's decision to have a child or to choose to have an abortion, at least during the first 12 weeks of a pregnancy. Under certain circumstances, other rights may be protected by the courts as a right of privacy, such as the employment of homosexuals, 'the right to die,' and the length of one's hair. Although confusion exists concerning the decisions of various State courts and the Supreme Court concerning privacy rights, the courts do agree that this 'symbolic creation' of a constitutional right of privacy is necessary to the dignity of the individual, but they have extended this 'necessity' erratically. The courts also seem to agree that public acts will be distinguished from private acts and generally, that public sexual acts will not be added to the 'penumbras' of constitutional protections. Aside from an almost absolute right to an abortion or contraceptives, it appears that the other areas examined will continue to be regulated in some way by government. The only areas not likely to be extended the right of privacy are homosexuality and prostitutes' rights, primarily related to forcible and/or public (sexual) relations. Footnotes and a bibliography of 259 references are provided.