Why the Right to Privacy May Be Taken Away by a New Supreme Court
Current controversy over replacing Justice O’Connor, a moderate on most social issues and a fierce defender of women’s rights, tends to focus on abortion. In fact, the much broader doctrine of privacy could be at stake if two new conservative justices join the Supreme Court.
The story of Griswold begins in 1961, when Estelle Trebert Griswold, then 61 and the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton of Yale University’s Medical School, opened a small birth control clinic in downtown New Haven. They intended to challenge the validity of the state’s ban on birth control and, indeed, several days later, they were arrested for dispensing contraceptives to a married couple and were fined $100 each.
When their case reached the Supreme Court in 1965, seven of nine justices agreed that a zone of privacy protecting birth control inheres in what the justices variously called a"penumbra" (a shaded rim between darkness and light) of the Constitution or in"emanations" from specific provisions in the Bill of Rights, such as protection from unwarranted search and seizure. In other words, although the Constitution and the Bill of Rights do not explicitly guarantee privacy rights to individuals, such rights were said to be implicit within them.
Griswold v. Connecticut paved the way for Eisenstadt v. Baird in 1972, which extended the same privacy protections—and thus the right to birth control—to unmarried women. It opened the door the following year to the historic 7 to 2 ruling in Roe v. Wade, which expanded the privacy doctrine to abortion, granting women and their doctors the legal right not just to prevent, but also to terminate, unwanted early pregnancies. In 2003 the Court once again drew upon the Griswold doctrine of privacy, in Lawrence v. Texas, to protect the right to consensual homosexual relations.
In Planned Parenthood v. Casey in 1992, however, the court narrowly (5-4) upheld the core privacy doctrine of Roe , but also introduced a new standard, allowing restrictions on abortions even in the first trimester, so long as they do not present what the justices called an"undue burden" on women. This has allowed many states to enact 24-hour waiting periods, mandatory scripts expressing reservation about abortion, and parental consent laws, among other requirements.
The Casey close call was a warning. Since the appointment of Justice Ruth Ginsburg, the Supreme Court has had a 6-3 margin of pro-choice support. However, Justice Anthony Kennedy voted against the majority in the recent abortion decision in Carhart v. Nebraska, which knocked down restrictions on so-called partial birth abortion procedures. And we have since learned that even in Casey, Justice Kennedy wavered and was strongly influenced by Justice O’Connor.
This means that appointment of just one new conservative justice to the Court could threaten constitutional protections, not just for abortion, but for the privacy doctrine, which protects contraception as well.
Remember that Griswold overturned an 1879 Connecticut law restricting sexual speech and commerce in all materials related to sexuality, birth control and abortion. It was the final blow to Anthony Comstock—a self-appointed moral arbiter whose evangelical fervor had captured Victorian-era politics and left a web of state and federal statutes intended to root out and prohibit behavior that he, and those who embraced his cause, considered obscene or sinful.
Comstock exploited the tensions of gender, race and class that beset American society after the Civil War, a turbulent era rather like our own. In his later years, he famously indicted (though failed to convict) birth-control pioneer Margaret Sanger for publishing information about contraception, though she did later go to jail for actually dispensing it in America’s first family planning clinic. In those days, a typical woman’s life included four to eight pregnancies.
Margaret Sanger’s coalition of women’s rights advocates, civil libertarians, physicians and social scientists has grown into an enduring global family planning movement. These pioneers of modern feminism understood that the ability to plan and space one’s children is a necessary condition for women to achieve equality. But now, one or certainly two new conservative Supreme Court justices could send the responsibility for regulating abortion and all family planning practices back to state legislatures, where the intrusive Comstock laws originated.
Even today, nearly half of all U.S. pregnancies remain unintended, and nearly half of those result in abortion. This is why polls show that the vast majority of Americans reject the extremism of any minority and do not want a reversal of the judicial decisions that protect their privacy and their rights. Doctrines of privacy and equality for women are simply not separable: eroding one imperils the other. And all this may rest on the shoulders of just one new justice.
This article was first published by tompaine.com and is reprinted with permission of the author. The article was adapted from the cover story of the summer issue of Ms. Magazine. Read the full article online: http://www.msmagazine.com/summer2005/birthcontrol.asp
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Arnold Shcherban - 7/27/2005
Oh, it absolutely is: the right of a woman to make an informed personal decision is not a privacy issue?
So, if somebody/something else may be affected (like fetus) by the personal decision it removes privacy protection?
Then, since a man definitely has rights, and he kills
himself after being rejected by a woman it makes that
woman guilty of a murder?
Besides, what right can a fetus have?
Right to be recognized as a human being, and therefore
right to live?
But this is absurd going beyond science and human reason, in general.
Being definitely a scientific issue, not a legal issue, the status of a fetus cannot be and never is decided (even in theoretical sense) by voting within scientific community, not mentioning by legal authorities.
Therefore, your pseudoscientific/pseudolegal comments, are nothing more than bright manifestation of religious and political fanaticism.
Frederick Thomas - 7/26/2005
Thanks for your comments.
Your point about Teri Schiavo was interesting, ethically.
One major difference is that the 3 month foetus responds to changes in its environment: movement, mother's mood, light, dark, cold, hot, pain. Teri apparently, depending upon which "expert" witness one believes, may have lacked perception of some of these.
A complete brain which is in early development may be superior to a severely damaged brain which is comparitively larger in mass of its cortex.
On the other hand, I have seen a few severe headshots, Mr. Brady of the "Brady Bill" for example, with much tissue loss which regained speech, sight, movement and many of the rational facilities. The brain is a self-programming computer, and its ability to adapt to severe damage is both awesome and unpredictable.
I suppose in conclusion that I honestly cannot make the distinction between the two. I do know that Teri probably would not have gained in intellect, but that, left alive, the "little creature" surely will.
Thank you again!
E. Simon - 7/26/2005
Thanks Mr. Thomas for your comments, particularly regarding the point on birth control in impoverished countries.
With the 2 - 3 month quote, would it seem that this "little creature," although significantly unlike a tumor in many respects, is actually a bit biologically, anatomically and neurologically closer to Terri Schiavo?
Frederick Thomas - 7/25/2005
Thank you for a well argued rejoinder. I would say in response:
It seems that you argue as if all aborted foetuses were 2 weeks old. That at least is the last point at which one can make the argument for a "group of cells" appearance. The average actual age at abortion is 2-3 months. This little creature has characteristic human nervous activity, circulation, metabolism, movement, arms, legs, hands, fingers, toes, and feelings-it detects and responds to changes in its environment. What I describe is the average development representing 80% of abortions. It is, I would ask you to agree, nothing like a tumor.
To the contrary, birth control, including IUDs, condoms pills, implant, etc. are even more important in the third world, and abortions even more expensive and potentially disastrous. The village medic can be instructed in a day to implant an IUD, which costs less than $5, but would require a full medical education and $700 or so to give a "safe" abortion. Which is the more feasible and practical?
Thank you again for your comments.
E. Simon - 7/23/2005
Tumors, like embryos, exist within someone's body, and therefore with both, the preponderance of discretion should lie with said person in determining what use their body should serve in relation to them, their biological assignments. Pregnancy is not a form of punishment.
I have made no argument against birth control, although its preference vis a vis abortion is not a strong point when considering the situation in third world countries; literacy rates, and the availability of pre- vs. peri-natal care - important considerations which I'm not sure why you would ignore or omit, especially in light of your repeated, condescending and presumptuous use of the term "floozies." Under other circumstances perhaps it would be but I don't see this dialogue as a matter of comparison.
Also, I extrapolated none of my arguments to the third trimester, and contrast that decision against your deliberate reference to the phrase "group of cells" and the attributes which you (choose to) ascribe them. I'm comfortable that the enlightenment helped rid us of the idea of predestination and I'm no more a fan of now applying that idea to "special" cells as a contemporary, psychological substitute.
Frederick Thomas - 7/22/2005
Thank you both for your comments.
It seems that the desgraziate who write hit pieces for extremist web sites are getting desperate in using this french fry case as ammunition against Roberts. That can be dangerous when most actual court decisions end up on the internet.
The Roberts decision is quoted below. Mr. Lederer's characterization is very close.
Roberts did not support the policy, nor did anyone, which was changed anyway almost immediately by the city council long before any trial began.
In these cases it is well to examine the primary information readily available before playing back malicious mis-characterizations from move-on.org or whatever.
Thank you both again for your comments.
"ROBERTS, Circuit Judge: No one is very happy about the
events that led to this litigation.
"A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal.
"The district court described the policies that led to her
arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.
"The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm."
John H. Lederer - 7/22/2005
You and I are in agreement -- in all save the end result (smile)
Frederick Thomas - 7/22/2005
Thank you again. This is more like it.
However, I will add two additional points to my original post based upon your above response.
First, the point of differentiation between the "group of cells" in a human embryo and a tumor is that a tumor will not, if undisturbed, grow up to be a human being. While the rights of the embryo may be less than that of a born human, they nonetheless exist simply because of the potential.
Second, you cannot make any of these arguments for third trimester abortions, when the foetus has all of the features, organs and bio-functions of born human beings.
Third, please respond and explain why you are tacitly against the idea of ordinary birth control, to eliminate the entire issue at far less cost and risk to everyone than abortion. No one has credibly explain why the floozies of this world cannot simple take the pill or get their tubes tied, when that is so much less expensive, rather than aborting.
Thank you again.
James Spence - 7/22/2005
sorry, typo in next to last line. "a government of law and men..."
James Spence - 7/22/2005
I take it we can agree, to a certain extent, that we don’t want prejudiced judges on the supreme court who use their personal or political beliefs to color their judgments on making laws. Of course, where we might disagree is how to go about making certain this happens without infusing the issue with partisan politics. But generally, I agree with what you have just said, among them, that judges must apply the law equally.
But I do have mixed feelings about this statement, unless I misunderstand it: "I don't want judges that are on the side of the environment against the pollluter, the employee against the employer, small business versus big business, the poor against the rich, the liberal against the conservative, the rural against the urban, black against white. " Well, that depends, doesn’t it? If the polluter is really polluting, if the employee really does have a legitimate grievance, than I want a judge who sees the truth when it smiles. As for the poor against the rich, I’m not sure the poor ever had or ever will have the clout to go up against the rich.
My statement on my first post on this page was that Roberts could be bad news if my instincts about him are right. I hope not. The french fry thing, although never the question before the court, was its end result. For me, character and personality as well as political indoctrination play a large role in judges decisions, whether they’re suppose to or not, because I believe we have a government or law and men which is as difficult as separating the "soul" from the body. So, sometimes, the devil is in the details.
John H. Lederer - 7/21/2005
Of course I would not want my 12 year old arrested for eating a french fry.
That was not the question before the court. The question was whether the police officer and the District were liable for violating her Fourth Amendment rights by restraining her when she was arrested.
The question of whether it was wise to arrest her was decided by the District of Columbia city council which, in its infinite wisdom, decided that the officer would have the option have issuing a citation to an adult, but would have no option to do so in the case of a minor. It was, as Roberts recognized, a lousy law.
If you believe that the federal courts should strike down lousy laws, you believe in substantive due process -- which was the doctrine that so inflamed Franklin Roosevelt that he advanced his unwise plan to pack the court.
I don't want judges that are on the side of the environment against the pollluter, the employee against the employer, small business versus big business, the poor against the rich, the liberal against the conservative, the rural against the urban, black against white. I don't even want judges that are on the side of 12 year old girls against the corrupt and abysmally inept District of Columbia City Council. I don't want judges, whom I can't fire, deciding that those whom I can fire should have made other policy decisions.
I want judges that will apply the law equally regardless of who is before them, that will have open minds, and that will judge fairly. And, yes, I want them to be lenient, but not at the expense of letting the law become little more than judge's opinion of what ought be done in each case, until we no longer have a government of law, but one of men.
And I want those SOB's on the City Council to have "napkins enow about you, here you will sweat for it".
James Spence - 7/21/2005
I am not an attorney stating cases here. Like most of us, I’m giving bystander’s opinions based on past events which I'm hoping are factual.
Your conclusions or assumptions about me are incorrect because you are failing to see that I am only speaking of the spirit of the law, whether it’s about the french fry case, privacy, the environment, or anything else. Let’s be serious. Would you like it if you had a daughter that was handled in the same way for eating a french fry? Yes, the 12-year old broke the law but it’s a law the handmaidens of justice can handle better by using a little of their own common sense. You can have a little compassion in a civil society without turning it into a criminal morass. It doesn’t have to be brought to such a ridiculous conclusion. Regardless, the real point here is that the french fry incident, too me, speaks volumes about a judge’s principles, on letter or spirit of law. We don’t need a police-state mentality hunting down every child for minor delinquent acts and tying up the justice system.
Robert’s statement about Roe v Wade was for his client’s sake and even though I’ve made a judgment based on his past actions, as I stated earlier, I’m waiting to see what he has to say and remain open. So far his image in DC is that of the amiable guy who has groomed and maintained his appearance for the sake of political and communal equanimity.
In Robert’s ruling in the environmental case your quote about a rehearing to consider a legal decision which supposedly is conflicting with a prior decision doesn’t cut the mustard with this bystander. He ruled against the environment, for whatever reason.
John H. Lederer - 7/21/2005
Mr. Spence, I conclude that it is your belief that Judges should refuse to obey the precedent of a superior court, act unethically when representing their clients, and not seek to find ways to sustain Environmental Acts of Congress when challenged.
These conclusions are based on your statement of Robert's cases.
1. The principal claim in the french fry case was that the girl's Fourth Amendment rights were violated when she was held after arrest -- a back door way of challenging the arrest which was required by D.C. law. As the unanimous panel of three judges declared, that issue had recently been disposed of by the Supreme Court. A secondary claim of age discrimination was also rejected.
"Ansche [the girl] finally challenges her arrest on the ground that it was an unreasonable seizure in violation of the Fourth Amendment. This claim quickly runs into the Supreme Court’s recent holding in Atwater."
2. Lawyers are ethically required to present the views of their cvlients, not their own personal views. Roberts presented the view of the government on Roe v. Wade in his brief representing the government-- a view which had been repeatedly stated by previous lawyers representing the government.
3. The issue in the toad case was whether a full en banc hearing should be accorded when a 3 judge panel decision conflicted with a 5th Circuit decision. Roberts said, inter alia, in his dissent from a decision not to hear the case before the full Circuit,:
"En banc review is appropriate because the approach of the panel in this case and NAHB now conflicts with the opinion of a sister circuit - a fact confirmed by that circuit's quotation from the NAHB dissent. See GDF Realty, 326 F.3d at 636 (quoting NAHB, 130 F.3d at 1067 (Sentelle, J., dissenting)). Such review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent. See Rancho Viejo, LLC v. Norton, 323 F.3d at 1067-68 n.2."
James Spence - 7/21/2005
As I inferred earlier, the Bush administration was looking for an advocate for its ever-expanding executive branch powers. Because there’s a truckload of antiterrorism and Patriot Act cases in the judicial pipeline coming up and Bush needs Roberts on the Supreme Court, someone who shares the view that the "war on terror" is above judicial review, and counts more than acts of Congress or international treaties.
Roberts was a protégé of Rehnquist and his conservative version of expanding the authority of presidents while stripping back federal regulations on business and civil rights and so probably shaped Roberts's views. Also, Roberts spent years in the executive branch arguing cases in the Supreme Court on behalf of the Reagan and first Bush administration in their effort to promote school prayer, restrict abortion and punish flag desecrators.
A most revealing point on Roberts’track record had to do with an incident several years ago when DC police arrested a 12 year old kid for eating a French fry on the Metro. After arresting her they handcuffed her and locked her up for hours treating her like a dangerous felon. Judge Roberts, who was on the federal bench at the time rejected the mother’s plea who made the pint that if an adult had been caught he or she would just have been issued a ticket. His logic was that by arresting a kid in this manner promoted parental awareness and got them involvement when they committed delinquent acts. Apparently he sees public consumption of McDonald fries on the DC metro as a delinquent act. This, too me, and others, reveals a doctrinaire personality.
It also seems he was hostile to environmental regulation as in the of his ruling in a California land-development case in which he sought to weaken the Endangered Species Act. He’s also hostile to reproductive rights. When he was deputy to solicitor general Ken Starr in the Reagan years, he sided with the antiabortion right by adding a footnote to his briefs in a family-planning-funding case arguing that Roe v. Wade was "wrongly decided and should be overturned." So far this is his track record. As they say, if it looks like a duck and walks like a duck… Of course, like any human being, he deserves a fair hearing. Let’s see what he says.
E. Simon - 7/21/2005
Thank you as well for your comments.
I will respond first, briefly, as I may have more time to put something to the keyboard later, but think these ideas are important to discuss and respond to.
First, I think it's important to point out that the reductio is being bandied about as a first line of attack primarily by the "pro-life" side, which would go so far as to confuse biological identity with personhood. There is no other explanation I can fathom for opposition to stem-cell research or for supporting the position that a single-celled zygote is more "special" in the eyes of human existence than the equally living sperm and egg cells that united to form it. Cells are cells. They are constituent parts of the autonomous, rights-bearing, individual entities we call human beings, and not merely miniature versions thereof. Same goes for balls of cells, which can be split indefinitely into an infinite number of potential identical twins. If one wants to incorporate the nature of the development of specifically multicellular ("human") attributes into their argument, then let him be explicit about this - and let the burden for doing so fall on him. Unless that stipulation is fulfilled, any talk of the morality of abortion or the rights of biological whisps of existence is as moot as is peripheral the position of the Clintons, and the advantages of oral contraception. Political and medical considerations shouldn't befuddle an ethical analysis.
More later if you want, but hopefully this is a sufficient start in at least touching on the points you raise for now.
Clayton Earl Cramer - 7/21/2005
Roe v. Wade could have been decided based the state of abortion laws in 1791 and 1868--an originalist argument can be advanced that because only abortion after "quickening" (the baby starts to kick) was criminal under English law, first trimester abortions were protected under the Ninth Amendment. This wouldn't work for partial-birth abortions, however, which are performed very late--usually when the baby is capable of surviving outside the womb. (Hence, the need to take scissors to the brain.)
If you want to make an argument for a right to privacy based on the Ninth Amendment, that would be an interesting argument. My experience, however, is that few advocates of the right to privacy mean anything other than a right of sexual privacy. There is no right to privacy when it comes to gun ownership, for example. There is no right to privacy when it comes to property ownership, or how much income a person makes, or any of a number of other areas in which the left believes that the government's job is to poke into the private affairs of others.
Clayton Earl Cramer - 7/21/2005
"Forget about his 'conservative,' 'textualist,' 'original intent' for a moment and look at his past viewpoints on issues and you’ll find a stiff, rigid ideological mind, a man for the times, according to the Bush camp, intent on expanding the executive powers."
Could you give some examples? Remember that the entire dispute about abortion is about legislative power--not executive power. Does the majority have authority to regulate abortion or not, or does a "stiff, rigid ideological" minority have the right to overrule the majority? You can make strong arguments for either majority rule or for limiting governmental authority, but "expanding the executive powers" isn't what this right to privacy argument is all about.
Frederick Thomas - 7/21/2005
Thank you for your post, but I feel you fail badly in this line of argument.
You argue that a foetus is equivalent to a tumor is more than a little ridiculous. It reminds one of the Fraternity Council meeting in "Animal House". There are credible arguments for the case you are trying to make, but this is not one. If one is to use "reductio ad absurdum", one must do so with valid analogies.
Further, no one has argued that sperm, unfertilized eggs, and tumors are human in the sense of fertilized eggs. Please find one example of anyone who believes this. This is a "straw man" argument in its most unreal form.
Why can the women you presume to represent, the 1,400,000 women who abort each year, use the available methods of contraception which have been there, safe, available and cheap, since the 1960's? Would not this option be better than carelessly getting knocked up like a floozy and killing the result?
Forgetting the foetus for a moment, would oral contraception not represent a vastly less expensive, medically much safer, and vastly more humane approach from the woman's perspective? I think that the ball is in your court on this issue. Even the Clintons believe that abortion should be rare. It certainly is not rare today.
Thank you again for your comments.
E. Simon - 7/20/2005
if a fetus has rights why shouldn't embryos? what about sperm cells, eggs, and tumors? if we can indefinitely extend "rights" to any vaguely humanoid piece of biota why not delimit the scope of said rights - and allow children, for instance, to vote? who are we to say that is not their right? and if a woman doesn't carry an embryo in _her_ body, why shouldn't that ball of cells have the right to be implanted into someone who might care more for it - would someone such as yourself care to volunteer? after all, adoption is a legal precedent for uncared for children - all pro-lifers should do the right thing, put the money down to perfect the technology, coordinate the process involved, and volunteer their bodies for surrogate pregnancy.
James Spence - 7/20/2005
"polls show that the vast majority of Americans reject the extremism of any minority and do not want a reversal of the judicial decisions that protect their privacy and their rights."
Yes. I believe Ms. Chesler is correct, the attitude of not only most Americans but also the deeply religious in America is changing, that is, they believe that "religious" politicians have to compromise in our society. You can’t run a country by minority rule in the long run.
And now the nomination of Judge Roberts could be bad news for most Americans. Forget about his "conservative," "textualist," "original intent" for a moment and look at his past viewpoints on issues and you’ll find a stiff, rigid ideological mind, a man for the times, according to the Bush camp, intent on expanding the executive powers.
John H. Lederer - 7/19/2005
The right to privacy is not the same as the right to abortion. The Court could remove the right to abortion while leaving the right to privacy alone -- one method would be to decide that a foetus has rights.
In any event using the phrase "right to privacy" is an attempt to prejudice the question.
Frederick Thomas - 7/18/2005
It is rare and gratifying to read such fine prose as yours in defence of any cause. You summarize the legal arguments as succinctly as possible, and make them intellectually available to the widest possible audience.
You do so quite better than the original justices (actually, mostly clerks) did. Yours is a wonderful verbal gift which any such Celt as myself must admire.
This is a cause in which we differ, however:
According to Guttmacher, about a million four hundred thousand human foetuses are aborted yearly in the US. Your article states that about half of the children conceived here never see light.
Assuming that one believes a 2-3 month old feotus to be human, this adds up to a holocaust of dead human beings every 4.5 years-about the same time frame as the original. This figure cannot make anyone happy, and it does not seem to be going down, despite improved contraceptives, and contrary to claims of some early supporters, who said it would decrease with education.
Most of these abortions are D&Es, a brutal procedure which dehumanizes the medical professionals who perform it and the girl or woman who receives it. Essentially, following dilation of the cervix, the foetus is removed by pulling it apart. The parts are stacked in a petrie dish until all have been removed. If the patient sees her former child in this condition, the emotional scarring can be permanent. Usually, it is hidden from her.
Then the interior of the uterus is scraped of any remnant of the placenta, to prevent infection. There is danger to the woman as the placenta is removed, because at this point fragile arteries which had previously nurtured the foetus may be accidentally torn. In this case emergency surgery may be needed.
As pregnancy progresses, the danger and complexity of the procedure increases, until the argument that the foetus is not human can no longer reasonably be made. All in all, this killing is brutalizing to everyone.
While I am as liberal as anyone as regards human rights, in this case I see one claimed right-abortion, or privacy if you will, trumped by another more basic right-to remain alive. Such supercedences take place all the time. Your right to keep and bear arms is superceded by my right to keep living, if you should attack me.
In the case of abortion, the long term harm to society is what I most fear. The brutalization of the Civil War undoubtedly made the Indian wars more devastating and cruel, and cruel World War I made way for the Second. I fear that the brutality of abortion on this holocaustic scale and scope can only have the same effect upon the society which allows it-brutalization.
I do not believe that you will change your mind, but on the slight chance that you may change a little and employ that wonderful prose in what I feel is a better cause, I make the effort anyway.
Thanks again for a beautifully written article...
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