Notes on Abortion and the Right to Privacy

The Amy Coney Barrett hearings were a lesson in the connection between the legal arguments for decriminalizing abortion and, earlier, contraception. If couples are free to choose whether or not to use contraception, based on religious or other convictions, the same could be true for abortion.

This seems like a sound legal argument and even, in a parallel legal universe, bears application of the Establishment Clause. One religious sect's view of contraception or abortion should not dictate everyone else's ability to access these things; our laws are not written to satisfy one set of beliefs over another (i.e. we do not outlaw pork or blood transfusions to satisfy Muslims or Jehovah's Witnesses).  

The Supreme Court chose instead to legalize contraception (in Griswold v. Connecticut, 1965) and abortion (Roe v Wade, 1972) based on the right to privacy, which stems from an interpretation of the due process clause of the 14th amendment: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".

Privacy, being a privilege already recognized elsewhere in the Constitution and in common law, is interpreted as encompassing whether a couple decides to prevent pregnancy, or what a woman does early in a pregnancy. “In Roe, the court ruled that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability. Before viability, the mother's right to privacy limits state interference due to the lack of a compelling state interest," explains Live Science.

Whatever one thinks of this particular application of the 14th Amendment, this interpretation of privacy seems to jive with longstanding historical precedent. In many traditional cultures, the fate of a pregnancy before the "quickening" (the movement of a fetus in the womb) is seen as more or less the business of the woman herself and her trusted confidants (usually other women such as female relatives or a local healer).1

Seen more broadly, the enshrining of a privacy doctrine in sexual and reproductive matters fits in well with an analysis of Western cultural history where, as the power of brute-force coercion diminished beginning in the 18th century, the state’s "right to observe" and insert itself into questions of sexuality through the lens of science, categorization and regulation increased. 2 Legal protections are therefore necessary to counter these modern forces that have led to specific repression and prosecution of sexual and reproductive "crimes" that in past eras were largely ignored by the state (including contraception, abortion and non-normative sexual practices such as homosexuality or S&M). 3

It is the “creep” of right-to-privacy arguments that animates some of the modern opposition to the liberalization of laws regarding sexuality and reproduction. After all, in past eras, infanticide was also largely overlooked, as was child sexual abuse. Are we to protect these activities under a privacy rubric? The difference is that while these activities were once tolerated (or even actively embraced) in some cultures, this is certainly not the case today. While there is no religious, moral, ethical or scientific consensus on abortion, there is universal consensus on infanticide. Rode v Wade covers this argument by recognizing that there does eventually come a point where the state has a compelling interest in preserving the life of a fetus, except in cases where a pregnancy becomes too dangerous for the mother or there are other strong medical reasons to intervene. 

1 In the novel A Tree Grows in Brooklyn, a faithful account of life for poor Irish in pre-WWI New York, a midwife learns a young mother with a three-month old baby is pregnant again. She produces a bottle of “evil-looking dark brown stuff” and tells the mother,” a good dose of this night and morning for three days and you’ll come around again.” Even though she is no longer able to nurse her baby, the mother refuses, saying she cannot kill anything. “It wouldn’t be killing,” the midwife replies. “It don’t count until you’ve felt life.” When the mother still refuses, the midwife leaves with some final advice: “If you keep running up and down the stairs, maybe you’ll have a miscarriage.”

2 These areas are associated with French philosopher Michel Foucault in his books Discipline and Punish and The History of Sexuality.

3 Obstetrics and pediatric medicine are obviously a blessing for woman and children, but with modern technology always comes the threat of using technological tools for governmental overreach. With laws in some states compelling multiple doctor visits, notification of a pregnant teenager’s parents, unnecessary ultrasounds, description of a fetal image by a doctor, the viewing of an ultrasound image or the broadcast of the sound of a fetal heartbeat, it’s no wonder “keep your laws off my body” has become a rallying cry.