Although the Bill of Rights does not explicitly mention "privacy", Justice William O. Douglas (writing for the majority) ruled that the right was to be found in the "penumbras" and "emanations" of other constitutional protections. Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment to defend the Supreme Court's ruling. Justice John Marshall Harlan II wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment. Justice Byron White also wrote a concurrence based on the due process clause.
Two Justices, Hugo Black and Potter Stewart, filed dissents. Justice Black argued that the right to privacy is to be found nowhere in the Constitution. Furthermore, he criticized the interpretations of the Ninth and Fourteenth Amendments to which his fellow Justices adhered. Justice Stewart famously called the Connecticut statute "an uncommonly silly law", but argued that it was nevertheless constitutional.
Since Griswold, the Supreme Court has cited the right to privacy in several rulings, most notably in Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court ruled that a woman's choice to have an abortion was protected as a private decision between her and her doctor. For the most part, the Court has made these later rulings on the basis of Justice Harlan's substantive due process rationale. The Griswold line of cases remains controversial, and has drawn accusations of "judicial activism".
Griswold v. Connecticut involved a Connecticut law that prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception." Although the law was passed in 1879, the statute was almost never enforced. Attempts were made to test the constitutionality of the law; however, the challenges had failed on technical grounds.
In Tileston v. Ullman (1943), a doctor and mother challenged the statute on the grounds that a ban on contraception could, in certain situations, threaten the lives and well-being of patients. The Supreme Court dismissed the appeal on the grounds that the plaintiff lacked standing to sue on behalf of his patients. A second challenge to the Connecticut law was brought by a doctor as well as his patients in Poe v. Ullman (1961). However, the Supreme Court again voted to dismiss the appeal, on the grounds that the case was not ripe. It held that, because the plaintiffs had not been charged or threatened with prosecution, there was no actual controversy for the judiciary to resolve. Thus, the Connecticut statute had evaded judicial review until Griswold v. Connecticut.
In Poe, Justice John Marshall Harlan II filed one of the most cited dissenting opinions in Supreme Court history. He argued, foremost, that the Supreme Court should have heard the case rather than dismissing it. Thereafter he indicated his support for a broad interpretation of the due process clause. He famously wrote, "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." On the basis of this interpretation of the due process clause, Harlan concluded that the Connecticut statute violated the Constitution.
Shortly after the Poe decision was handed down, Estelle Griswold (Executive Director of the Planned Parenthood League of Connecticut) and Dr. C. Lee Buxton (a physician and professor at the Yale School of Medicine) opened a birth control clinic in New Haven, Connecticut, in order to test the contraception law once again. Shortly after the clinic was opened, Griswold and Buxton were arrested, tried, found guilty, and fined $100 each. The conviction was upheld by the Appellate Division of the Circuit Court, and by the Connecticut Supreme Court. Griswold then appealed her conviction to the Supreme Court of the United States. All in all, due to the fact that Griswold argued that the Connecticut statute against the use of contraceptives by citing the 14th Amendment, which states "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law...nor deny any person the equal protection of the laws" (Amendment 14 Section 1), Griswold was able to reverse the Supreme Court's decision, concluding that the Connecticut Statute was unconstitutional and having it removed from legislation.
Later decisions by the court extended the principles of Griswold beyond its particular facts. Eisenstadt v. Baird (1972) extended its holding to unmarried couples, whereas the "right of privacy" in Griswold only applied to marital relationships. The argument for Eisenstadt was built on the claim that it was a violation of the Equal Protection Clause of the Fourteenth Amendment to deny unmarried couples the right to use contraception when married couples did have that right (under Griswold). Writing for the majority, Justice Brennan wrote that Massachusetts could not enforce the law onto married couples because of Griswold v. Connecticut, so the law worked "irrational discrimination" if not extended to unmarried couples as well.
The reasoning and language of both Griswold and Eisenstadt were cited in support of the Court's result in Roe v. Wade (1973). The decision in Roe struck down a Texas law that criminalized aiding a woman in getting an abortion. The Court ruled that this law was a violation of the Due Process Clause of the Fourteenth Amendment. The law was struck down, legalizing abortion for any woman for any reason, up through the first trimester, with possible restrictions for maternal health in the second, and possibly illegal in the third (the approximate time the fetus viability) with exception for the mother's health, which the Court defined broadly.
Lawrence v. Texas (2003) struck down a Texas state law that prohibited certain forms of intimate sexual contact between members of the same sex. Without stating a standard of review in the plurality opinion, the court overruled Bowers v. Hardwick (1986), declaring that the "Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Justice O'Connor who cast a deciding vote but wrote a separate opinion, framed it as an issue of rational basis review. Justice Kennedy's majority opinion, based on the liberty interest protected in the due process clause of the Fourteenth Amendment, stated that the Texas anti-sodomy statute touched "upon the most private human conduct, sexual behavior, and in the most private of places, the home," and attempted to "control a personal relationship that . . . is within the liberty of persons to choose without being punished." Thus, the Court held that adults are entitled to participate in private, consensual sexual conduct. While the opinion in Lawrence was framed in terms of the right to liberty, Kennedy described the "right to privacy" found in Griswold as the "most pertinent beginning point" in the evolution of the concepts embodied in Lawrence.