Right to privacy should be enumerated

In the 1965 case of Griswold v. Connecticut, the Supreme Court struck down an allegedly virtue-inculcating state law barring the distribution of contraceptives to married couples, on the grounds that a right to privacy, not enumerated in the Constitution, nevertheless subsisted in the penumbras of the enumerated rights, protecting citizens against undue government intrusion into their affairs.

Consistent application of the Griswold precedent — over the course of a series of rulings leading to Lawrence v. Texas in 2003, which overturned all remaining sodomy laws — has culminated with the finding that no agency of government is entitled to regulate private consensual sexual behavior between legal adults.

Somewhere in the indirect line of descent from Griswold is the case that has done as much to fuel our culture wars as any other single event in American history — Roe v. Wade. For all the controversy it has generated, the logic of Roe consists of essentially two simple points: first, the domain of individual autonomy established in Griswold includes one’s own body; second, a fetus is not a legal person. It follows from the conjunction of these points that state regulation of a part of a person’s body that itself bears no rights is an unconstitutional violation of privacy. In other words, the Constitution guarantees a woman’s right to terminate her pregnancy.

If you were seeking to craft a legal strategy by which prohibition of abortion could pass constitutional muster, which of the planks of Roe would you attack? The second initially might seem promising. If a court could be persuaded that an unborn child was a person entitled to rights, the potential existence of rights that have not been enumerated would be irrelevant: murder is not covered by privacy rights.

In point of fact, however, no court is going to find that unborn entities in the early stages of pregnancy are persons, because they are not persons under any definition of personhood apart from patently religious ones. So the advocate of banning all abortions (and not just late-term abortions, which a court might find to be commensurate with the holding in Roe) must instead argue against privacy rights, either in general or in their particular application to women’s physical personhood.

As it turns out, this is precisely the legal strategy that opponents of abortion rights have adopted. And since a claim that a woman’s control of her own body somehow falls outside the realm of privacy rights would shrivel before the Fourteenth Amendment’s equal protection guarantee, ardent pro-lifers have but one feasible recourse. To reverse Roe, they must overturn the central holding in Griswold.

Thus the interests of libertarians and feminists intersect. They have a common enemy in the social conservatives whose judicial efforts at re-establishing the womb as part of the state’s jurisdiction threaten not just abortion rights, but the right to privacy in general.

Here is how privacy rights can be seen to lurk in the half-shadows of the text of the Constitution. Unambiguously, the Ninth Amendment refers to rights that the people retain apart from those described in the rest of the document. The First Amendment establishes rights of free speech and association, the Fourth Amendment a “right of the people to be secure in their persons” and protections against “unreasonable searches and seizures,” the Fourteenth Amendment a right to due process and a guarantee that no legislation can “abridge the privileges or immunities of citizens.” In light of these manifest constitutional provisions, what could be more plausible — so the thinking goes — than that an emergent right to privacy is among those rights that the Ninth Amendment assures us do exist despite their lack of explicit mention?

For what it’s worth, I think this reasoning — the reasoning behind Griswold and ultimately behind Roe — is basically sound. But it would be simple intellectual chauvinism to deny that the conclusion and every premise of the foregoing argument is highly contentious. Given enough time and continued electoral victory, social conservatives could be successful in effecting a shift in judicial thought sufficient to break up the Griswold-Roe consensus on privacy.

There is an Alexandrian solution to the problem of a constitutional right to privacy, available to those of us who think the moral issue of privacy rights is inarguable: simply amending the Constitution to include an explicit right to privacy.

In one clean stroke, the governing constitutional interpretation according to which the state may not intervene in its citizens’ private lives will be codified, and any attempt to undermine abortion rights by attacking privacy surreptitiously, rather than arguing openly for legal recognition of blastocysts as persons, will be hobbled.

The victory for privacy rights in Griswold has come at the cost of throwing privacy advocates on the defensive for decades over an admittedly tendentious interpretation of the Constitution. Through an amendment to guarantee privacy rights, we would assert, in no uncertain terms, that those who argue for the regulation of private conduct according to tendentious moral schemata have some explaining to do as well.



Daniel Koffler is a senior in Calhoun College. His column appears on alternate Wednesdays.

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