By: Maggie Shahrestani, Alex Shahrestani
The new case criticizes the legal method used to establish a Constitutional right to an abortion. But judges have used that same method to establish a right to privacy. Could overturning one eliminate the other?
Possibly.
In early May of this year, a Supreme Court opinion leaked to the press before being finalized and published. Officially, the Court ruled in Dobbs v. Jackson Women’s Health, which concerns a Mississippi abortion law and whether it violates the Constitutional right to an abortion, on June 24, 2022. The final ruling looks broadly like the leaked draft, and the precedent set by past Supreme Court rulings – that women have an intrinsic right to an abortion prior to fetal viability – has been undone. There is no constitutional abortion right at all in the United States. Instead, abortion is just another policy matter decided by state and federal legislatures.
Various media outlets have tackled questions what this ruling could mean for access to abortions and the more broad-reaching effects on marriage equality and LGBTQ+ rights. But perhaps less obviously, this case could cast doubt on Americans’ right to personal privacy.
Privacy: A Right Beneath the Surface
Strictly speaking, there is no overarching “right to privacy” in the Constitution. At least not explicitly in the text itself. Yet abortion cases like Roe and Casey, and the famous marriage equality case, Obergefell, depend heavily on a Constitutional right to privacy. If a privacy right is not explicitly stated in the document, how did the Justices find it there?
Without going too deep into the weeds, the short answer is they made an inference. Starting with a case in 1965, the Court inferred that certain explicitly stated rights – such as the right to refuse to house soldiers in your home, and protection from unreasonable searches and seizures – each assume and imply a zone of privacy around an individual’s home and personal life. The zone of privacy exists then, even though it’s not explicitly stated. It’s a right that lingers beneath the text of the Constitution.
Since that time, that Constitutional zone of privacy has been recognized and protected in cases touching on all kinds of issues, including whether parents have the freedom to educate their children as they see fit, whether states can prohibit the study of particular languages, and of course, whether there is a Constitutional right to an abortion.
Shaking the Foundations
In the opinion, Justice Alito broadly criticizes the Court’s tendency to recognize Constitutional rights that are not explicitly stated in the text of the document. The opinion calls Roe, “remarkably loose in its treatment of the Constitutional text.” That scathing comment specifically aimed not just at the Roe Court’s identification of abortion rights, but at its identification of the essential underlying right to privacy. “It [the Roe Court] held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
The opinion, which reverses Roe on the issue of abortion rights, stops short of eliminating the privacy right. However, it is clear that the Court’s reasoning applies to all implicitly granted rights, and the opinion hints that any presumed Constitutionally-based right to privacy rests on shaky ground:
“Roe. . . was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
“[The] Court found support for a constitutional ‘right of personal privacy,’ but it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. Only the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield.”
In our view, the Court’s attempt to make a distinction between snooping and meddling is a dangerous one to make. We go back to basics to explain why: What is privacy? Where should we draw the line between public and personal?
Why Privacy Matters
In the world of virtual work and the all-pervasive digital marketing machine, there is no shortage of hand-wringing about privacy rights. But what is rarely discussed is the fundamental question of why privacy matters so much. If we can better-articulate the vague, slippery certainty we have that somehow privacy does matter, and matters deeply – then we are better equipped to draw the line between what belongs to everyone and what is rightfully hidden from the public eye.
So here is our attempt at an answer.
Our view is that privacy rights are synonymous with identity rights. The space elevated beyond intrusion is a space where a person can decide who they want to be. And in fact, that very right to choose who you want to be is useless – even nonexistent – without a protected space where you can explore and experiment.
For example, if you come from a particular religious or philosophical background, it can be difficult or even damaging to explore opposing viewpoints with the participation of your local community. The outcome of your decision on how to process the additional information should be determined by your actual decision, not by the inferences which might be made by an outside observer. If your community is able to observe you throughout the learning process, there is much less room to question, explore, and grow.
Imagine getting dressed and doing your hair in the morning in front of the whole world. Imagine all your thoughts and ideas being on display to everyone, instead of just the ones you choose to share. Or if a writer could not delete or edit any of their work before publishing.
Just as a sculptor creates art by carving away material, we create ourselves by editing parts of our thinking, by crumpling up versions of ourselves and tossing them out. We are all more complicated, more blurry around the edges than the version of ourselves we share with the world. And the only reason we have the freedom to create ourselves is that we have a wall to hide behind.
This brings us back to the Court’s dangerous distinction in Dobbs.
Given this understanding of privacy as the ability to choose your identity, is there really a difference between the right to “shield information” and the right to make personal decisions without interference? We would argue that these are two sides of the same coin. To be watched is to be constrained. To be tracked is to be disrupted.
The Future of Privacy
Where do we go from here? Is the writing on the wall for Americans’ constitutional right to privacy?
Not necessarily. The Alito opinion stops short of throwing out all rights that aren’t explicitly in the Constitution. Instead it cautions that the Court should have a high bar for such inferred rights, and it agrees with past rulings that there is a particular way to test for an implied right.
Specifically, there are two questions to ask to determine whether a right can be inferred: One, is the right deeply rooted in U.S. history and tradition? And two, is it essential to the nation’s “scheme of ordered liberty”?
In the opinion, the abortion right does not meet that threshold. It is not deeply rooted in U.S. history and tradition; no state constitution ever contained such a right, and in fact most states outlawed abortion for a good portion of history.
But privacy? That’s a whole different ballgame. As early as the 1740s, some English courts already recognized a right not to have one’s private papers seized by public authorities.
With a host of historical examples, it seems likely that the debate will not be over whether a privacy right exists at all, but rather over its scope. Does it cover privacy in the home only, or in the doctor’s office too? Does it prevent the government from spying on you? The right to make very personal decisions without government interference?
These questions will need answers in future cases. But regardless of where the courts end up landing, what seems certain to us is that privacy is in for a shake-up. And good news for U.S. history professors and graduate students everywhere – scholarship on the history of privacy will become very relevant in the American legal system.
