The Defense of Life and The Death of Privacy

The U.S. Supreme Court is precariously close to overturning Roe v. Wade. In recent decades, the country has experienced a revival of constitutional originalism and a push towards increased legal protections for the unborn. The legitimacy of Roe v. Wade (1973) stands on a promise of a right to privacy that, if broken, threatens the foundation for not only the right to abortion, but the right to privacy as a whole.

The constitutional right to privacy was first recognized in Griswold v. Connecticut (1965), which found that the Comstock Law that prohibited married couples from purchasing contraceptives was unconstitutional. Through Justice Douglas’s majority and Justice Harlan’s concurring opinion, Griswold established two factions for arguing the legitimacy of a protection of privacy in the U.S Constitution: penumbras and the 14th Amendment. Justice Douglas decreed that the First, Third, Fourth, Fifth, and Ninth Amendments had a implicit provision for a “zone of privacy,” even if the right of privacy was unenumerated; Justice Harlan, on the other hand, reasoned that Connecticut's intrusion on privacy, namely marital privacy, in this case, constituted a deprivation of personal “liberty” without substantive due process of law.¹ Later, Einstedbat v. Bard (1971) saw a Massachusetts law prohibiting unmarried people from purchasing contraceptives nullified through the Equal Protection Clause. Therefore, by 1973, the Supreme Court had already upheld the right to privacy and defined it as “the right of the individual, married or single, to be free from unwarranted governmental intrusion,” specifically, “into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”²

Justice Harlan’s application of the 14th Amendment to the right to privacy influenced one of the greatest landmark cases of the 20th Century: Roe v. Wade (1973). When Norma McCorvey, also known as “Jane Roe,” took federal action against a Texas statute that criminalized abortion, on the basis that she had a right to terminate her pregnancy, the Burger Court decided that abortion was not an absolute right. It did, however, fall under the constitutional right to privacy and the guarantee of due process protections for personal liberty.³ In his majority opinion, Justice Blackmun accepted privacy as a “fundamental right” of Americans, yet noted that privacy needed to be balanced against “compelling state interests.” In terms of abortion, the question came down to a citizens’ right to privacy and a woman’s health and wellbeing versus a state’s interest in protecting life.⁴

At the time of the Roe ruling, the Court reasoned that the state’s interest in protecting the potential life of the fetus started in the second trimester. Modern challenges to Roe have centered on redefining the Court’s idea of life and how much precedence it holds over personal liberty. This trimester system was overhauled by a fetal viability standard in Planned Parenthood v. Casey (1992), which has been abused by state legislatures through overly rigid adherence to the 24-week standard and unconstitutional reassessments of viability in law.⁵ Dobbs v. Jackson Women’s Health Organization, a case which has yet to be decided by the Roberts Court, is just the latest iteration of states that are taking a judicial jab at the Supreme Court by banning abortion after 15 weeks and venturing to diminish the value of liberty or expand the definition of life.⁶

The majority opinion of Griswold has provoked major judicial controversy by establishing an unenumerated right of privacy allied with the due process protections of liberty. Justice Douglas’s opinion, like Justice Harlan’s, does not draw on originalist or textualist evidence. The penumbras, by definition, are unwritten and derived from the perimeters of constitutional rights rather than rights themselves. Justice Harlan’s 14th Amendment-centric approach to privacy, on the other hand, has often served as its fraught constitutional foundation since the 1960s despite being merely a concurring opinion. Although his decision does hold judicial and historical authority, it is not considered a binding precedent.⁷ Under the U.S. Constitution, privacy is not a right. It is a judicial promise.

According to many of the current U.S. Supreme Court Justices, this promise is incompatible with the U.S. Constitution. Justice Brett Kavanaugh has gone on record to condemn the “freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition” regarding the opinions of Justice Douglas and Harlan.⁸ Furthermore, in 2020, Justice Clarence Thomas stated that Roe’s interpretation of the 14th Amendment “created the right to abortion out of whole cloth, without a shred of support from the Constitution's text," while Chief Justice John Roberts echoed his support for revisiting Roe because the current right to privacy is “amorphous” and “unwritten.”⁹

The right to privacy, however, is not inexplicably linked to Roe, abortion, or contraceptives. Under the principle of stare decisis, legal precedent can be applied beyond a narrow scope of abortion to greater moral and medical decisions. When the country decides to put the state’s interest over people’s liberty, it is creating precedent to continuously narrow the right to privacy on the back of abortion. Every case that empowers the state interest in protecting life also expands the strength of all state interests over personal liberty as a whole. Through the defense of life, the country is not just seeing a weakening of women’s rights; we are seeing the decimation of liberty and privacy.

By weakening the platform of privacy, the individual’s liberty to make personal choices on issues of morality, medicine, and modern technology is weakened. The right to privacy as expressed in Roe served as the basis of Lawrence v. Texas (2003), which rendered the criminalization of homosexual relationships unconstitutional. In that case, Justice Kennedy, speaking of two adults in a homosexual relationship, held that “the State cannot demean their existence or control their destiny” and that all Americans were “entitled to respect for their private lives” no matter the “Judeo-Christian moral and ethical standards” that were legally advanced by anti-sodomy laws.¹⁰ Furthermore, the right to privacy has provided for decisions like that in Cruzan v. Director, Missouri Department of Health (1990), in which the Supreme Court upheld the liberty to refuse medical treatment, even if it could ultimately lead to one’s death.¹¹

The right to privacy has become even more complicated in the digital age through the division of information privacy, the use and transfer of personal data, and decisional privacy, the ability to make one’s own decisions without government interference (as protected by Roe). Yet, the nature of the internet makes it nearly impossible to control one’s data flow, which blurs the line between information and decision. Data sharing and personally tailored algorithms online are more pernicious to one’s right to privacy than most realize. By taking one’s data, an algorithm can choose what advertisements to display, what restaurants or music to recommend, and what people to follow, which fundamentally alters a user’s decisions in real life. But if having an extremely fitting user interface is more convenient than unnerving to you, realize that the interference does not stop there. By tracking financial spending, an algorithm can affect who can get a loan or insurance, and by tracking location, it can affect who is arrested or deported. If the Supreme Court were to cut down on the existing constitutional protections of privacy, there would be unpredictable consequences for data collection and infinite opportunities to legislate morality into one’s search history in the age of ever-expanding technologies.¹²

In the United States, the transaction of power between state and individual is explicit and inescapable; when the state is strengthened, the individual is weakened. One’s stance on abortion is a personal, and often politicized decision, but all Americans must understand there are innumerable legal consequences to their choice.

References

¹ “Privacy,” Legal Information Institute | Cornell Law School, accessed March 13, 2022, https://www.law.cornell.edu/wex/privacy.

² Einstedbat v. Bard, 405 U.S. 438 (1971)

³ Britannica, T. Editors of Encyclopaedia, “Roe v. Wade | Summary, Origins, & Influence,” Encyclopedia Britannica, December 10, 2021, https://www.britannica.com/event/Roe-v-Wade.

⁴ Roe v. Wade, 410 U.S. 113 (1973)

⁵ Planned Parenthood v. Casey, 505 U.S. 833 (1992)

⁶ “Jackson Women’s Health Organization v. Dobbs,” Center for Reproductive Rights, accessed March 13, 2022, https://reproductiverights.org/case/scotus-mississippi-abortion-ban/.

⁷ “Concurring Opinion,” Legal Information Institute | Cornell Law School, June 2021, https://www.law.cornell.edu/wex/concurring_opinion.

⁸ John Bowden, “Kavanaugh Lauded Rehnquist’s Roe v. Wade Dissent in Speech Last Fall: Report,” TheHill, July 12, 2018, https://thehill.com/blogs/blog-briefing-room/news/396659-kavanaugh-rejected-idea-of-a-wall-of-separation-between-church.

⁹ Jamie Ehrlich, “Clarence Thomas Says Roe Decision Doesn’t Have ‘shred’ of Constitutional Support,” CNNPolitics, July 9, 2020, https://www.cnn.com/2020/06/29/politics/clarence-thomas-abortion-dissent/index.html.

¹⁰ Lawrence v. Texas, 539 U.S. 558 (2003)

¹¹ Cruzan v. Director, Missouri Director of Health, 497 U.S. 261 (1990)

¹²David Alan Sklansky, “Too Much Information: How Not to Think About Privacy and the Fourth Amendment,” California Law Review 102, no. 5 (2014): 1069–1121.