Decisional privacy "protects the individual from government interference with personal and family decisions."
In the case of Griswold v. Connecticut, the U.S. Supreme Court struck down an anticontraceptive statute as an infringement of the fundamental right of "marital privacy." The reasoning in this and subsequent cases is that the intent of the Bill of Rights as a whole and particularly of the Fourteenth Amendment, was to provide an additional bulwark against governmental intrusion on rights so fundamental that one need not or could not list them. They were inherent in the idea of free men banding together of their own accord to form a government.
The extent of this sphere of personal autonomy (also called "decisional privacy") is now being tested, and nowhere more urgently than in regard to decisions about one’s own body — i.e., decisions about life, death, and reproduction. Medical science and technology, and even more fundamental advances in biological sciences, are significantly extending the range of choices and decisions that individuals and society have, or may have in the future, involving values and trade-offs that are both intensely personal and value laden.
The decision to accept or reject life-support systems is one that more and more people are already having to make; and the decision of whether and when to terminate the use of such systems may be all the more difficult, since it must usually be made by someone other than the user. In the future “life-support systems” may be entirely internal — e.g., a totally implantable heart. Will the ethical, legal, and constitutional questions be the same?
The capability of saving, maintaining, and enhancing life with technological systems that, because of their complexity, risk, and cost, are inherently and necessarily limited resources will raise public policy issues, as did kidney dialysis. Is the opportunity to continue living to be a market good or will there be another means of allocating or rationing these technological capabilities? These painful choices, however made, will likely be challenged on constitutional grounds, as have the funding of other advanced medical technologies.
At the beginning of life, also, constitutional challenges are likely to arise from new reproductive technologies such as third-party surrogacy, use of donated frozen embryos, and fetal surgery and other interventions in utero.
The common thread in extreme medical interventions at the beginning and end of life is that new and enhanced medical capabilities force new decisions on individuals and families, or change the balance of risks and benefits involved in traditional decisions, and by so doing, force legislators and courts to reexamine the interest of the State in those decisions.
In public health programs also, new constitutional issues are emerging that require reexamination of the traditional balance between individual rights and the general welfare. Enhanced capability to test individuals for exposure to risk, for infectivity, for use of prohibited or controlled substances, and for vulnerability to disease or injury are raising serious questions about the government use of such techniques and its obligation to protect the privacy of the subjects.
Even more intrusive or restrictive social control measures may be proposed in the future, ranging from quarantine of individuals to regulation of critical industries, whenever our technological capability to manage or reduce or remove risks lags behind our scientific capability to identify and track them.
The power to intrude effectively into the core of personal privacy and autonomy in order to protect the interests of society was technologically limited in 1787. The ability of government to know about, and to act with regard to a specific individual, was in most cases slow, cumbersome, and highly visible, and so in most cases was effectively constrained by the simple prohibitions listed in the Bill of Rights. The power of government to investigate, monitor, and manipulate the behavior of specific individuals is not now so technologically limited, and it will be less so in the future.
Biological, chemical, electronic, social, and behavioral technologies can be expected to extend and strengthen those capabilities. The limits on their use must be found in law and policy, and in the continued reliance on the U.S. Constitution as the supreme law of the land. Strong legislative and judicial actions may be necessary to protect that sphere of individual, private activity that the Founding Fathers cherished and that the Constitution has always implicitly protected.
- ↑ Who Goes There?: Authentication Through the Lens of Privacy, App. C, at 210.