A Stealth Attack on Privacy

Amanda Marcotte

Anti-choicers who petulantly claim that there’s no right to privacy in the Constitution are attacking many more decisions than Roe.

As November 4 draws ever closer, the amount of attention Americans
are paying to the issue of Supreme Court appointments is ramping up.  Which can only mean one thing — intense focus
on the only Supreme Court decision most people know by one word alone: Roe. Short for Roe v Wade, it is the 1973
decision that legalized abortion for all women in the first trimester of
pregnancy.  And it’s not just rabid
anti-choicers voting solely on abortion who think of Roe as the most relevant
legal issue there is during an election season. In The
Nine
, his history of the recent Supreme Court, Jeffrey Toobin argues
that opinions and leanings on Roe have done more to shape Supreme Court
appointments than any other legal issue. 

What makes this situation peculiar is that Roe was hardly earth-shaking
precedent.  By any reasonable measure, Roe was just the logical conclusion of a
decision made by the Court eight years earlier. Griswold
v Connecticut
laid out the basic idea that citizens (in this case,
married citizens) had a basic right to privacy that included sexual
choices, medical decisions made with a doctor’s supervision, and a right to determine one’s own child-bearing. 
Once privacy was established as a right that superceded the right of the
state to appease moralists who wish to regulate their neighbors’ sexual
behavior, the other dominos fell. 

Griswold only covered married couples,
but the court quickly found that if married couples had privacy rights, so did single people.  And if a single person had a right to prevent
pregnancy, then a single woman surely had the right to terminate one, at least
when it’s so early in the pregnancy that the state has no legitimate interest in protecting
the fetus.  (Contrary to the claims of
anti-choicers, Roe does address the notion
of fetal personhood.  The justices just
reasonably realized that a fetus so early in its development demands less state protection than
one later on in a pregnancy.  Roe fits a common sense understanding of
pregnancy, wherein the fetus is treated more like a baby as it becomes more
like a baby.) Years later, the justices established that if single
heterosexuals had the right to privacy, so do homosexuals.  

The point should be clear: Anti-choicers who petulantly
claim that there’s no right to privacy in the Constitution are attacking many more decisions than Roe.  They’re gunning for a return of contraception
bans and sodomy laws.  In South Dakota, they’re
putting an abortion ban on the ballot with the hopes of challenging Roe
The Colorado ballot initiative to define a fertilized egg as a person,
however, goes even further, exploiting the ambiguity of when pregnancy begins
(when we can’t see it happening) to create the groundwork for challenges to
IUDs and hormonal contraception.
VIDEO: Does Life Begin at Fertilization?VIDEO: Does Life Begin at Fertilization?

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As Cristina Page argues in her book How
The Pro-Choice Movement Saved America
, it’s nearly impossible to overturn
Roe without attacking the idea that privacy is a right guaranteed to all
Americans, which means overturning Griswold.  A majority of Americans don’t want to see Roe overturned, but an ever greater
majority don’t want to see the right to contraception called into
question.  Most aren’t aware that the
anti-choice movement has contraception access in its sights, in fact.  A grand overturn of privacy rights would be
wildly unpopular.  Would the court risk
it, knowing that it might have massive effects at the ballot box and on future
court appointments?

Overturning Roe
without attacking privacy rights seems more possible now than it used to be,
however.  The appointment of John Roberts
to the Chief Justice of the court changed the game.  As Jeffrey Toobin describes him, Roberts is a
sharp man who finds sport in the art of shoehorning right wing conclusions into
presumably liberal precedent.  The court
under Roberts has managed to wreak havoc on presumably established law like
those desegregating schools and guaranteeing a woman’s right to equal pay for
equal work by cleverly reversing prior decisions without coming right out and
reversing them.  Through hoop-jumping
legal finesse, it’s entirely possible that the Roberts court might find a way
to allow abortion bans without overtly overturning precedent.

VIDEO: Monica's AbortionVIDEO: Monica’s AbortionHow?  The tactic that
presents itself is the one we saw used in Carhart
v. Gonzales
.  In his opinion on the
case, Justice Kennedy warmed himself up to the anti-choice view of women as
inferior decision makers whose inability to fully understand the ramifications
of their own reproductive decisions meant that they should have their rights in
that area restricted.  Kennedy’s feeling
seems to be women who get late term abortions can’t understand how gruesome
they are, or they’d choose differently. 
Justice Ginsburg’s compromise solution — making it clear to women what is
about to happen and honoring their ability to make decisions — was
dismissed.  With court precedent singling
out potential mothers as unique beings who can’t be trusted to know what they
really want, perhaps the logic can be extended to all abortions without
directly destroying the right to privacy (for men at least).

No
rights are absolute, and
in Roe the
court found that the state had the right to limit privacy once the pregnancy
had advanced enough that the state had an interest in the fetus.  Attempts to redefine when the state interest
could come into play have largely met with failure, because basic biology
intercedes.  However, the anti-choice
argument that met with success in Carhart
was that the procedure in question should be banned to protect women from their
own inability to make the "correct" decision without firm state guidance.  Could a Roberts court expand a "woman
protection" argument that would ban abortion without directly overturning Roe,
the right to privacy, or the trimester system set up by Roe?  It’s possible, even though there’s no
evidence that abortion is bad for women or that women are inadequate decision
makers compared to men that require their choices constrained for their own
good.   

Of course, legal maneuvers to ban abortion without touching
contraception will not make anti-choicers happy for long.  But if the court manages to overturn Roe without overturning it in the way
that I outline here, then it wouldn’t be much of a leap to suggest that
women-controlled contraception also cannot be left in the hands of women.  Of course, this entire scenario relies on the
idea that the court will just ignore the equal protection requirements of the
Constitution that make it hard to put women in a separate class requiring more
social control than men.  Unfortunately,
decisions like Roe were made without
invoking equal protection, making the continued ignoring of it in regards to
reproductive rights a strong possibility. 

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.