in holding that the State violated plaintiff’s constitutional right of privacy by basing cancellation of her employment contract on evidence of her unwed pregnancy which was derived from her private communications with her physician, the Court cited Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) as authority for opining that “The [Supreme] Court has also recently declined to restrict the right of privacy in sexual matters to married couples. ...” Id.
How later courts described this case
- in holding that the State violated plaintiff’s constitutional right of privacy by basing cancellation of her employment contract on evidence of her unwed pregnancy which was derived from her private communications with her physician, the Court cited Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) as authority for opining that “The [Supreme] Court has also recently declined to restrict the right of privacy in sexual matters to married couples. ...” Id.
- state violated plaintiff’s constitutional right of privacy by basing cancellation of employment contract on evidence of her unwed pregnancy
- employer could not dismiss unmarried, pregnant teacher for immorality; her conduct did not affect her competency or fitness as a teacher
- unmarried teacher could not be fired for first trimester abortion
Written by the judges who cited it.
The opinion
JOHNSON, Chief Judge
(concurring).
I concur wholeheartedly with Judge Rives’s opinion that the termination of the plaintiff under the circumstances of *980 this case violated plaintiff's constitutional right to privacy. While I have serious reservations as to the constitutionality of the immorality provisions of the statute by reason of the vagueness doctrine, I do not consider it appropriate in view of our conclusion that the application of the statute in this instance violated plaintiff’s constitutional right to discuss that feature of the case. See Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968).
I would, however, like to make several points to clarify my position in joining in the holding that the plaintiff’s dismissal violated her constitutional right to privacy. As the majority opinion makes clear, this right — although not one of the specific guarantees of the bill of rights — stems directly from these guarantees of personal freedom that the framers felt were so essential to the preservation of ordered liberty. 1
This constitutional right of privacy, which the plaintiff possessed and which was violated by the defendants in this case, is designed to create a zone of protected activities free from governmental intrusion. ¡(This constitutional right of privacy is very different from the right of privacy sounding in tort to which the dissenting opinion refers in its discussion of Alabama law. This tortious privacy right, often spoken of as the Warren-Brandeis right of privacy, 2 is a creature of state law and is not constitutionally based. To the contrary, this right often comes in conflict with the First Amendment’s guarantee of freedom of speech and of the press. See Time, Inc. v. Hill, 385 U.S. 374 , 87 S.Ct. 534 , 17 L.Ed.2d 456 (1967).
It appears that this confusion over the proper nature of the constitutional right to privacy is somewhat responsible for the dissent’s conclusion that Miss Drake waived her right to privacy by answering questions about her sexual relations before the Covington County Board of Education. While it is true that an individual may lose his tortious right of privacy by openly and publicly discussing a particular matter, 3 courts indulge in every reasonable presumption against the waiver of constitutional rights. Fuentes v. Shevin, 407 U.S. 67, 94-95 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972). Moreover, for a waiver of a constitutional right to be effective, it must normally be “voluntary, knowing and intelligent.” See Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 185-186 , 92 S.Ct. 775 , 31 L.Ed.2d 124 (1972); Brady v. United States, 397 U.S. 742, 748 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970); Johnson v. *981 Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938).
Therefore, under the circumstances of this case, it would be an egregious error for this Court to conclude that the plaintiff, Drake, had waived her constitutional right to privacy. 4 While there is some dispute over the facts, it would appear that the question of Miss Drake’s pregnancy came to the Board’s attention because her private physician breached his confidential relationship and reported her condition to the Board. 5 Once the Board notified Miss Drake that they intended to dismiss her, Miss Drake exercised her right to have a private hearing before the Board. Only within the closed proceedings before the Board, where her job was at stake, did Miss Drake discuss her sexual relations, and then only in response to direct questioning by the Board’s lawyers. 6 The waiver of a constitutional right does not occur by inadvertence or under duress. Thus, the only permissible conclusion from the record that is presented to the Court in this case is that the plaintiff has fully preserved her constitutional right to privacy throughout the proceedings.
. This right of privacy extends to several areas that I have been traditionally categorized as “immoral.” For example, the Supreme Court of the United States has held that an unmarried woman — despite long-accepted notions of morality — may not be denied access to contraceptives. Eisenstadt v. Baird, 405 U.S. 438, 453 , 92 S.Ct. 1029 , 31 L.Ed.2d 349 (1972).
Abortion is another activity that has long been thought to contradict our society’s accepted notions of morality. Yet, in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), the Supreme Court rejected the contention that common conceptions of morality could justify a ban on abortion. Moreover, the court held that a woman’s right to an abortion' — based on her constitutional right to privacy — extended to both married and single women.
. This right was first discussed and developed in Warren & Brandeis, The Bight to Privacy, 4 Harv.L.Rev. (1890).
. Even using this standard of waiver, Miss Drake cannot be said to have waived the right to sue in tort for invasion of privacy under the circumstances of this case. At no time did she publicly discuss her sexual activities. Moreover, she requested and received a private hearing before the Board of Education and only admitted to sexual activity under direct questioning from the Board’s lawyer. Clearly, the Board of Education may not assert as a defense in an invasion of privacy action that the plaintiff has waived the right to privacy by prosecuting the lawsuit and thus bringing to public attention the private matter in question. Like the constitutional right to privacy, the Warren-Brandeis right to privacy is not equivalent to a right to secrecy — involving secrets which once revealed forever defeat the underlying right.
. The constitutional right to privacy does not involve the right to keep secret matters that are of an intimate or personal nature. Rather this right involves the creation of a zone of protected activities free from governmental intrusion.
. The Hippocratic Oath provides that “whatsoever you shall see or hear of the lives of men that is not fitting to be spoken, you will keep inviolably sacred.” In this instance, Dr. Ray Evers, Miss Drake’s private physician, provided the Board of Education with information about her private medical condition without any communication of his intentions to the patient. In this connection, see Horne v. Patton, Ala., 287 So.2d 824 (1973).
. See transcript of the hearing before the Covington County Board of Education at pages 19-20 (May 22, 1973).