Roe Decision Could Call Into Question Concept of ‘Right to Privacy’

The core of Justice Samuel Alito’s draft decision in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade — that abortion is not implicated in the 14th Amendment’s Due Process Clause, and thus not subsumed in the much debated “right to privacy” — is becoming the white-hot front in this constitutional clash. Justice Alito’s majority opinion is another milestone in a half-century-long campaign against Roe. It promises to reanimate debates about whether the Constitution enshrines a right to privacy and about other values. Some guarantees are enumerated in the Constitution. Freedom of religion, speech, assembly, and the right to bear arms — all of these are debated, but they cannot be denied. The “right to privacy,” which is tied to the 14th Amendment and its promise of “liberty,” is a beast of a different nature altogether. Some see it as invented out of whole cloth or as a Trojan Horse constructed to smuggle progressive policy into the founding parchment. Others view the right to privacy as a core right and freedom. Were Roe to fall, these partisans of privacy would fear extinction for Supreme Court jurisprudence that protects access to contraception (Griswold v. Connecticut), consensual intimate relations (Lawrence v. Texas), and same sex marriage (Obergefell v. Hodges).The first appearance of a “right to privacy” on the American legal scene dates to an 1890 article in the Harvard Law Review, penned by Samuel Warren and a future associate justice of the Supreme Court, Louis Brandeis. Alarmed by the rise of photography and tabloid journalism, they postulated the “right to be let alone.”Thirty years later, Justice Brandeis wrote from the bench: “Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”Justice Brandeis’s notion of a “right to be left alone” reached full maturity in Griswold, decided by a seven-justice majority in 1965. The opinion, written by Justice William O. Douglas, toppled a Connecticut law banning contraceptives by arguing that the Bill of Rights creates “penumbras” that establish a constitutional right to privacy. Justice Douglas’s conjured penumbras — a word that derives from the Latin for “almost shadow” — from a pu pu platter of the First, Third, Fourth, Fifth, and Ninth Amendments. As he writes, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” These “emanations” create “zones of privacy” that preclude banning contraception. A concurring opinion by Justice John Marshall Harlan II eschewed hunting for penumbras in favor of overturning the contraception interdiction on the basis of the Due Process Clause, finding that the law violates basic values “implicit in the concept of ordered liberty,” and runs aground of that provision’s guarantee of “due process of law” prior to deprivation of “life, liberty, or property.”While Justice Harlan’s reasoning did not carry the day in Griswold, the notion that the 14th Amendment’s promise of “due process of law” is itself a basis for constitutional rights gained steam in ensuing decades. As he put it, “the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.”It is this “rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,” that serves as the basis for Justice Harry Blackmun’s majority opinion in Roe. In Dobbs, Justice Alito’s draft opinion takes aim at that foundation in maintaining that there is no constitutional right to an abortion. Justice Alito’s opinion displays an awareness that no Roe is an island. He lists no fewer than 14 of its fellow traveling cases before writing, “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”Roe falls because the right to an abortion is not “deeply rooted in our history and tradition.” In other words, while the Due Process Clause does extend its wing over more than the merely enumerated, determining what falls under its protection involves identifying rights already known to American law. Abortion, a criminal rather than protected activity prior to Roe, does not qualify.Other commentators are not so sure that a right to privacy grounded in the 14th Amendment can survive Roe’s amputation. A professor and dean at Stanford Law School, Bernadette Meyler, tells the Sun that “Justice Alito’s opinion calls into question the entire line of constitutional cases involving a right to privacy.” Professor Meyler goes on to explain that while Justice Alito does not propose to eliminate the notion of implied constitutional rights altogether, by limiting them to “those that have been protected historically” he proposes a “narrowly defined” approach to privacy rights.Another law professor, Gerard Magliocca of Indiana, shares a different view with the Sun, one he calls “counterintuitive.” He believes that “the price of overruling Roe is the confirmation of Griswold, Lawrence, and Obergefell.” By excising Roe, the majority leave intact its peer cases. Professor Magliocca predicts this tradeoff will surface more clearly in subsequent drafts, and that “taking a controversial step often requires giving something back in return, either to secure a majority or respond to the dissents.” One high-profile figure who concurs with Mr. Meyler is President Biden, who told reporters that if the draft opinion survives as a final holding, “it would mean that every other decision relating to the notion of privacy is thrown into question.”Justice Alito wrote “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” As the pace of the court’s pivots quicken, the nation will see whether the justice doth protest too much.

Roe Decision Could Call Into Question Concept of ‘Right to Privacy’

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