What do you mean there’s no right to privacy in America?
Something central to our identity as Americans is being lost in the newest chapter of the same old debate over legalized abortion and Roe v. Wade. It’s bigger than whether a woman or the government should be making medical decisions. It has nothing to do with whether an embryo is a person, or what kinds of appropriate restrictions on abortion should occur.
There are serious legal scholars, many federal judges, and perhaps some in the Senate and House who believe that Americans have no right to privacy. What if Americans knew which senators and congresspersons oppose the right most of us assume we have?
Whether or not you agree with Roe v. Wade, the underlying reason for this 1973 Supreme Court decision legalizing abortion is that women — all Americans, in fact — are constitutionally protected from most government interference in our personal lives.
In fact, the basis for many of the controversial individual liberty struggles of the past 50 years arises from a case the court decided eight years earlier. In 1965, in Griswold v. Connecticut, for the first time in our history, a majority of justices stated that Americans have a protected right to privacy, even though the U.S. Constitution does not have that exact phrase.
In Griswold, the Supreme Court rejected a Connecticut state law that banned the use of birth control by married couples. (Yes, really.) The court reasoned that “specific guarantees in the Constitution’s Bill of Rights have penumbras … where privacy is protected from governmental intrusion.” There is the First Amendment’s rights to express your religious and political beliefs and to freely associate with others; the Third Amendment’s right to privacy in one’s own home by refusing to house soldiers during peacetime; the Fourth Amendment’s right to be free from unreasonable searches and seizures by the government; the Fifth Amendment’s right against self-incrimination; and the Ninth Amendment’s preservation of other individual rights, regardless of whether they are mentioned in the Constitution.
Taken together, the Supreme Court concluded, the protections in the Bill of Rights meant the Founders believed there is a “right to be let alone.”
Conservative legal heroes such as Supreme Court Justices Antonin Scalia and Clarence Thomas hate this. Each has explicitly argued that the right to privacy is not a constitutional right because the Founders did not did not explicitly say there’s one. In 2007, Justice Thomas wrote that there is “no general right to privacy” or relevant liberty in the U.S. Constitution. Justice Scalia, in the same Lawrence v. Texas case, spoke disparagingly of the “so-called ‘right to privacy.’”
This line of reasoning has enormous consequences for Americans that go well beyond the abortion debate. For example, the Supreme Court has used the right to privacy to prevent government from deciding what we read or watch in our own homes (Stanley v. Georgia, 1969), to overturn a local housing ordinance that said grandmothers could not live with their grandchildren (Moore v. East Cleveland, 1977), to allow patients to refuse medical treatment for themselves (Cruzan v. Missouri Department of Health, 1977), and to protect gays from being arrested for being gay (Lawrence vs. Texas, 2007). The court even referred to the right to privacy when legalizing gay marriage nationwide (Obergefell vs. Hodges, 2015).
Justices Scalia and Thomas are held up as ideal judges by nearly every Republican running for office because they call themselves “strict constructionists” and “originalists” who insist that anything that’s not written in Founders’ ink violates constitutional decency and legal virtue. Interest groups and political activists demand that conservative office-seekers promise to appoint and support judges just like them.
Yet, as abortion once again makes headlines, there is silence about the constitutional right to privacy, something that the Supreme Court must reject to end legalized abortion by overturning Roe v. Wade. In a 1992 ruling upholding the right to choose, the court stated, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
We already know where Democratic and Republican politicians stand on abortion. So instead of continuing the tired debate of the past half-century, let’s get to the heart of the matter. Is it only Justices Thomas and Scalia who believe there is no constitutional right to privacy, or do Republicans (including those running the Senate) concur? Don’t know? Ask ’em.
Donnie Fowler is an adjunct professor at the University of San Francisco. He is CEO and executive director of Tech4America and co-founder of Democracy Labs. He has worked on the presidential campaigns of Dick Gephardt, Jesse Jackson, Bill Clinton, Al Gore, Wes Clark, John Kerry, Barack Obama and Hillary Clinton, and was a Clinton White House staffer as a liaison to Congress for presidential appointments. Follow him on Twitter @fowlerdonnie.