A right that is classified a fundamental right is essentially a right that is protected under the U.S. Constitution. What this means for you as a U.S. citizen is that any government action that affects your fundamental rights must be necessary to protect a compelling government interest. This test, known as the strict scrutiny standard, is the most difficult test to overcome.

In this article, we’ll discuss the fundamental right of privacy. Encompassed within the fundamental right to privacy are the rights related to marriage and family, the rights to caring for your children, the rights within your personal sexual relationships, the right to abortion, and the right to read obscene material within your home. If the government were to restrict these rights in any way, it would have to be a narrowly tailored restriction as related to a compelling government interest.

First, we’ll explore the rights related to marriage and family.

The right of a man and woman to enter into marriage is a fundamental right. Currently, this right only extends to a male and a female entering into such a union, and it does not extend to same-sex couples. It is possible, however, for the government to restrict the fundamental right of marriage if it is necessary to protect a compelling government interest. For example, the government may restrict the right of an inmate in the prison system from entering into marriage if there is a compelling interest as related to the penal system.

In addition to the right to enter into marriage is the fundamental right to keep extended family members together. What exactly does this mean? Let’s say that a local government enacts zoning regulations that prevent family members from living together. These types of regulations have been found to be invalid. Although this fundamental right extends to distant family members, it does not extend to non-relatives.

Next, let’s explore the rights to caring for your children.

As a parent, you have a fundamental right to care for your children. Specifically, you have the fundamental right to make decisions surrounding the control and custody of your children. In order for the government to restrict this right, it would have to articulate a compelling government interest. For example, the government has the right to remove children from their home if they have clear and convincing evidence that shows the children have been neglected or abused by their parents. Under these circumstances, removing the children from their home and depriving their parents of their custodial rights would be necessary to ensure the children were safe and protected.

Next, let’s look at the rights related to your personal sexual relationships.

As an adult citizen, you have the fundamental right to control your intimate sexual relationships. In order for the government to restrict your sexual conduct, it would have to be able to show a compelling government interest. For example, the government could put restrictions on intimate sexual conduct if it is video-taped and placed in the stream of commerce. By placing your sexual relations in the public, the government could certainly place restrictions on them. Also, the government could penalize you for engaging in sexual conduct that does not involve two consenting adults. If you engage in sexual relations with a minor, or if you force someone into having sexual intercourse when they clearly don’t want to, the government can slap you with criminal charges. However, absent such exceptions, the government cannot control or criminalize your sexual conduct.

Next, let’s examine the fundamental right to abortion.

Probably the most controversial of all the fundamental rights within the right to privacy is the right of a woman to have an abortion. An abortion is a procedure that terminates your pregnancy. Just like you have the right to decide to have children and rear them to adulthood, you also have the right to choose not to have children. However, unlike some of the other rights that fall within the fundamental right to privacy, here you have several compelling government interests that allow significant government regulations. The government has a compelling interest in protecting the health and safety of its citizens, including fetuses. Let’s look at this a little further.

Assume that a woman decides within her first trimester (first twelve weeks of pregnancy) that she wants to have an abortion. At this point in the pregnancy, there is not much of a possibility that the fetus would be able to survive outside of the mother’s womb. The fetus has likely not developed enough to survive on its own. This essential means that the fetus is not viable. Under these circumstances, the government may adopt regulations to protect the health and safety of the mother and fetus alike, but the restrictions cannot place an undue burden on the woman. For example, the government could require the woman to get an abortion by a physician who is licensed. Further, the government could require the woman to wait for a period of twenty-four hours after seeking an abortion before one can actually be performed. On the other hand, putting regulations in place that would result in a substantial obstacle to the woman obtaining an abortion would not stand up under the strict scrutiny standard.

Let’s change the previous hypothetical now and say that the woman decides to have an abortion during the second trimester of her pregnancy (between 12 and 24 weeks of the pregnancy). Under these circumstances, medical evidence has shown that the fetus is viable —meaning it is likely that the fetus can live and survive outside of the mother’s womb. Now, the government has a compelling interest to protect the life of the fetus. So, at the point of viability, the government can prohibit a woman from exercising her right to have an abortion in order to protect the life of the fetus. In cases such as these, the United States Supreme Court has said that the government can only allow the woman to have an abortion once the fetus is viable if the procedure is necessary to protect the health or safety of the woman (e.g. if the mother could die without an abortion).

In addition to abortion, a similar right is the right to use contraceptives to prevent pregnancy. Although this is different from abortion, it is certainly related. The government cannot prohibit adults from obtaining contraceptives to protect against pregnancy.

Next, let’s take a closer look at a person’s right to read obscene material within his or her home.

Falling within the fundamental right to privacy is the right to read obscene material within your home. Obscene material is material that meets the following three-part test: (i) It must cause an individual to have lustful thoughts, as decided by the average person applying the standards of the community; (ii) it must portray sexual conduct in an offensive way; and (iii) it must be lacking in serious artistic, literary, scientific, or political value. See Miller v. California, 413 U.S. 15, 24 (1972).

In order for the government to restrict this right, it must have a compelling government interest. For example, the government can make it a crime to read obscene material involving minor children. The government has a compelling interest in protecting the health, safety, and welfare of children, and preventing adults from reading such material is necessary for the government to protect minors. In addition, although you have the right to read such obscene material in your own home, you do not have a fundamental right to sell or purchase this material in any way.

Finally, let’s wrap this article up with a few key points.

Remember, a right that is classified a fundamental right is essentially a right that is protected under the U.S. Constitution. What this means for you as a U.S. citizen is that any government action (i.e. an action by a government entity) that affects your fundamental rights must be necessary to protect a compelling government interest. This test, known as the strict scrutiny standard, is the most difficult test to overcome.

In this article, we’ve discussed the fundamental right of privacy. Encompassed within the fundamental right to privacy are the rights related to marriage and family, the rights to caring for your children, the rights within your personal sexual relationships, the right to abortion, and the right to read obscene material within your home. We also looked at some examples in which the government has been able to restrict these rights, through a narrowly tailored restriction as related to a compelling government interest.