LAW 743D

Constitutional Privacy

2 Unit(s)

In overturning Roe v Wade, the Supreme Court in Dobbs v. Mississippi issued a major statement on the idea of constitutional privacy. In this course, as described below, we will explore constitutional privacy in the wake of the Dobbs decision as well as privacy precedents that pre-date and presumably survive Dobbs. A constitutional right of privacy has been found to exist in a variety of settings, including the right to family planning (contraceptive access and use), the right to be free of unreasonable searches, the right to same-sex and interracial marriage, the right to bodily integrity, the right to keep certain information private, the right to the privacy of one’s own home, the right to privately associate. Yet, there is no direct pronouncement of a right of privacy in the United States Constitution. How can that be? What do all these privacy rights have in common? Does the 14th Amendment Liberty Clause present the answer? By examining the Dobbs decision, the varieties of constitutional privacy rights, and how and where the Supreme Court has found them, the student will acquire (1) an understanding of the constitutional basis to the right of privacy; (2) the facility to articulate that understanding; and most importantly, (3) the ability to apply this understanding to a variety of settings. Relevant to our times (and if time permits), we will examine governmental responses to the coronavirus pandemic and how such responses impact the constitutional right to privacy. In particular, how do vaccinations, testing, tracking, and tracing impact privacy rights? Does the health and safety of the community justify the intrusion into our privacy rights? We will endeavor to answer these questions as we learn about the right to privacy. As a threshold question, what do we mean when we talk about a right of privacy? Through our course discussions, each student will develop their own answer to this question and articulate it in a short paper. Unlike the United States Constitution, the California Constitution explicitly articulates a right of privacy. By examining California’s constitutional right of privacy, each student will develop an understanding of how, if at all, it differs from its U.S. constitutional counterpart and how to apply it to a variety of settings.