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
, 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Once privacy was established as a right that superceded the right of the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).

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

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. 

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