Abortion: The Right to Privacy

This is the second post in a series about abortion rights. To read the first post, click here. 

Women can have abortions because the Supreme Court believes that abortions are a private matter between a woman and her doctor. The Court argues that all people have an inherent "right to privacy" that protects them from inappropriate government intrusion and this "right to privacy" is at the heart of the abortion debate. Conservatives generally believe that the right to privacy is a fabrication that you won't find if you read the Constitution word for word. Liberals will argue that it is an idea that is fundamental to the Constitution, even if it isn't explicitly stated and furthermore, that it is good and right for the Constitution to evolve as society's needs evolve. Regardless of your legal preferences, for the pro-life movement to succeed in overturning Roe v. Wade, the issue of the right to privacy must be dealt with. Today I want to discuss how the right to privacy was created and how I think it can be used to the benefit of the pro-life movement.

It is a common misconception, and one I held until recently, that Roe v. Wade created the right to privacy, which was the legal foundation for allowing abortion on demand. The idea was not created by the Supreme Court in 1973, it was actually an idea that had been around since the late 1800's and it had even appeared in Supreme Court cases from the 1960s. Discussing the right to privacy may seem like a gigantic yawn of a conversation, but today I want to argue that understanding its creation is important when considering how the Supreme Court can overturn Roe v. Wade.

Sandra Day O'Connor

In 2007 I watched a fascinating interview with Sandra Day O'Connor. She was asked why she upheld Casey v. Planned Parenthood (a 1991 case that provided the Court with an opportunity to limit or outlaw the practice of abortion). O'Connor was a Reagan appointee and was widely believed to oppose abortion rights, so her decision to uphold Roe was surprising. O'Connor stated that the right to privacy was established law. She went on to discuss the idea of precedent and how she felt it was not her role to re-write law, it was her role to interpret law. Therefore, in her role as Supreme Court justice she could interpret the right to privacy, but she could not revoke it. I tell this story because I think that O'Connor's reasoning is one of the biggest hurdles facing the pro-life movement. If the Supreme Court throws out the right to privacy, it will throw out 100 years of rulings that have been built upon the right to privacy, and most of them have nothing to do with abortion rights. It should be easy for us to understand the Court's reluctance to take this step. However, I don't believe that is the only way the Court could curtail or abolish abortion rights, and, even more than that,  I don't think it is a realistic option. Today I want to explain the evolution of the right to privacy and put forward my thoughts on how the Supreme Court could feasibly uphold the right to privacy while also abolishing abortion rights.

The 14th Amendment

The term "right to privacy" was first put forward in the early 1900's, but the groundwork for its creation was laid in 1868. Three years after the end of the Civil War the United States ratified the 14th Amendment to the Constitution. This amendment covered a variety of topics, but we're primarily concerned with a section known as the Due Process Clause. It states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If this language sounds familiar, it is because you've read most of it before in the 5th Amendment. Prior to the 14th Amendment, the protections that were guaranteed in the Bill of Rights were only applied to the federal government. It was the job of the states to determine what protections the state governments would provide to its citizens (see Barron v. Baltimore). For example, prior to the 14th Amendment, the federal government had to protect your right to bear arms, but your state governments did not. This should sound bizarre to you because it is completely foreign to our modern understanding of the Constitution. The 14th Amendment ushered in the idea that all governments, not just the federal government, had to uphold certain rights detailed in the Constitution.

With this amendment the federal government wanted to ensure that emancipated slaves were granted full citizenship and that they enjoyed all of the benefits, privileges, and protections that accompany that citizenship. This amendment may seem fairly innocuous, but in the years following its ratification, it became the foundation upon which the legalization of abortion was built.

The Evolution of Due Process Rights

When due process rights were added to the Constitution via the Bill of Rights, they specifically encompassed those protections afforded individuals who are interacting with the justice system. They are important rights because they make sure that police and the courts can't abuse their power. Due process rights include the right to an attorney, the right to face your accuser in court, the right to a fair and speedy trial, and the right of habeas corpus. Prior to 1868, the U.S. Constitution's Due Process Clause only applied to federal investigations and federal court, but after the ratification of the 14th Amendment, all courts and all investigative agencies were required to provide those protections to citizens. 

However, in the years following the ratification of the 14th Amendment, the Due Process Clause changed. The rights that were historically associated with due process were now referred to as "procedural due process rights." Over time, lawyers and judges began to suggest that just as the due process clause protected citizens against government overreach in regards to law enforcement, it also protected citizens against government overreach in their private lives as well. This new protection became known as "substantive due process" and most famously appeared in the Supreme Court case Lochner v. New York.

Substantive Due Process

The right to contract was one of the first "rights" granted to United States citizens that is not explicitly stated in the Constitution. The Supreme Court suggested that it was an implied right and that rights implied in the Constitution are protected alongside of those rights that are explicitly stated. The right to contract evolved over several decades and came to prominence in the court case Lochner v. New York (1905). The United States was in the middle of the Industrial Revolution and state legislatures were trying to figure out how protect their citizens from companies that demanded long hours and which provided low pay and unsafe working conditions. Several states began to pass laws that limited the number of hours an employer could demand of their workers and in Lochner v. New York, the Supreme Court struck those laws down. They argued that employees have an inherent "right to contract" and that they are able to negotiate the terms of their employment and if they have agreed to the hours required by their employer, then the state cannot infringe upon that agreement. Over time the right to contract fell out of use legally, but the creation of substantive due process rights, rights implied in the Constitution, but not stated outright, left a lasting legacy on the Supreme Court.

The "Right" to Privacy

Inferred rights made a splash in the legal world during the 1890s. The term "yellow journalism" refers to journalism that is sensational and that uses shocking headlines in order to sell newspapers and many began to fear that as technology advanced (i.e. portable cameras) the press would use these new inventions to invade people's private lives in order to make a profit. Two lawyers, Louis Brandeis and Samuel Warren began to consider how law could protect citizens from this invasion. In an article titled, "The Right to Privacy" they stated, "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature of that protection is." Published in 1890, the article was immediately influential and was referenced in the majority opinion in the 1965 Supreme Court case Griswold v. Connecticut. Griswold marked the formal creation of the right to privacy by the Supreme Court, which was referenced 8 years later in Roe v. Wade.

Realistic Expectations

Conservatives take issue with the right to privacy because it is, in their mind, an embellishment to the Constitution. They argue that if the Founding Fathers wanted to place privacy in the list of endowed and protected rights, then they would have included it in the original text of the Constitution. Conservative legal theory argues that the court system was designed to interpret law, not to create law and that if such a "right" were truly necessary, then the legislative branch would be the appropriate branch to grant such a right. By arguing for a right to privacy, the Supreme Court effectively created a new protection that had previously not existed.

Hopefully, however, we are not outraged at abortion rights because the Supreme Court is using liberal legal theory to support them. Abortion rights are alarming because they sanction murder. Asking the Supreme Court to overturn over 100 years of legal precedent is a huge request, and one that I think is unrealistic. If the pro-life movement continues to advocate for a termination to the right to privacy, I believe that they are fighting a losing battle. I believe the pro-life movement must weigh the issues at hand and determine which outcome is the most important. Do we want to achieve conservative legal rulings or do we want to outlaw abortion? It's clear to me which objective is the most morally pressing and if the pro-life movement continues to advocate for both goals, I believe that they will achieve neither. However, if we focus on achieving an end to abortion rights, we can find a path that will lead to success.

My suggestion is to fight one battle instead of two. Consider the right to privacy, in this instance, as set law. Reason and logic support the argument that life begins at conception and convincing the Court of an unborn child's personhood should be the main goal of pro-life lawsuits. If the Court wants to uphold substantive due process rights and the right to privacy, let them apply them to all individuals, and not just those who have a birth certificate.

The gruesome videos released by the Center for Medical Progress bring into shocking focus the hypocritical arguments put forward by Planned Parenthood. In one situation they argue that an unborn child is nothing more than tissue and a collection of cells, while in another setting they discuss the sale of human heart, lungs, and livers. That unborn children are people cannot be questioned and we should press this issue again and again with the Court until they recognize that a women's "right to choose" takes a back seat to a person's "right to life."