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A Brief History of the Law of Personal Privacy and Bodily Integrity

Judge Andrew P. Napolitano on

As more governors issue so-called mandates requiring municipal and state employers, as well as private employers and public accommodations, to require their employees and patrons to be vaccinated against COVID-19, they are being challenged by arguments based on personal privacy and bodily integrity.

The former argues that personal medical decisions are protected by the right to privacy, which is a natural right that supersedes governmental needs. The latter argues that since we each own our bodies, we can decide what goes into them. Both the personal privacy and the bodily integrity arguments recognize that the government can only trump fundamental rights if it can prove fault at a jury trial.

Thus, a case where an infected and contagious person is intentionally infecting healthy folks can and should result in an arrest and prosecution for aggravated assault at which the state would need to prove its case. If it did, the convicted defendant would be incarcerated and isolated for the duration of her sentence. But that does not animate the government today.

Today, the government -- local, state and federal -- is attempting to compel healthy people to be vaccinated against their wills. All three levels of government are attempting to do this by command, not by legislation.

The favorite U.S. Supreme Court case that the pro-mandate folks cite is the 116-year-old Jacobson v. Massachusetts. There, in the era before the court recognized personal privacy or bodily integrity as constitutionally protected, it upheld a Massachusetts statute requiring inoculation for smallpox.

The issue in the case was whether a state legislature can enact public health laws that authorize force to enforce them. The issue was not whether a governor could issue a command, call it a law and use the police to enforce it. Moreover, the Jacobson case was decided in 1905, well before the personal privacy and bodily integrity cases came along.

 

The privacy doctrine began at the Supreme Court in 1928, with a dissent. In Olmstead v. United States, the court upheld wiretapping telephone calls without a search warrant since it held there was no expectation of privacy in the calls.

Justice Louis Brandeis distilled the privacy doctrine in his famous dissent when he wrote that the framers of the Constitution "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."

Brandeis' iconic language would languish as a dissent until 1965 in a case called Griswold v. Connecticut. There, the Supreme Court recognized personal privacy as a fundamental liberty -- the highest category of liberty in the constitutional pantheon. In Griswold, the state of Connecticut had enacted legislation prohibiting the use of contraceptives by married couples.

Embracing the values ignored by the Jacobson case and rejected by the Olmstead case, the court invalidated the Connecticut statute and ruled that the decision to use contraceptives is so integral to control over one's body and is made in such a zone of privacy that the Constitution protects it from the government's reach.

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