This is by my friend, lawyer Mark Sondreal.
Is there a right to privacy guaranteed by our constitution? This is a question that has come up again lately, largely due to President Bushâ€™s Supreme Court nominations and the recent South Dakota law effectively banning abortion in that state. The reason the answer to this question is important is because the right to privacy forms the basis for the Courtâ€™s decision in Roe and the cases preceding that decision.
In Roe vs. Wade, the Supreme Court expanded on a string of prior decisions which found a right to privacy emanating from the protections afforded by the 4th and 5th amendments. The right of a woman to have an abortion stems from the privacy right to do as she wishes with her body. By the way, abortion is not the only privacy right the Court has found to be protected by the “Constitutionally implied right to privacy”. The right to make choices regarding contraception is based on the right to privacy as is the right of consenting adults to marry outside of their own race and the right of married persons to make love in the way they see fit.
The anti-abortion folks often take the position that the Roe vs Wade decision is fundamentally flawed because there is no right to privacy specifically enumerated in the constitution. They are right. The right to privacy has been implied by the Court in light of other enumerated rights and protections. The Supreme Court has taken the position that to hold that a right to privacy is not constitutionally protected would be inconsistent with the rights and protections that are specifically guaranteed in the 4th and 5th amendments. (self incrimination and unreasonable search and seizure)
Now, I can understand that abortion is a very contentious and emotional issue to many people. That said, I think that undermining the right to privacy established by existing legal precedent as a means of outlawing abortion is misguided. I have to assume that people who advocate for that position have not fully considered the implications. I seriously doubt that any rational person wants the state or federal government to have the right to make laws dictating what they can or canâ€™t do in their bedroom. For those of you that still hold to the argument that the constitution should be interpreted literally, following is a partial list of other rights not mentioned in the constitution but still guaranteed by our courts:
- The right to be presumed innocent until proven guilty
- The right to vote
- The right to travel
- The right to a jury “of your peers”
- The right to get married
- The right to have children
- The separation of church and state
If we follow the logic of the anti-abortion crew, these rights have also been “invented” by the “activist judiciary” and should not be constitutionally protected. I think anyone who believes this approach is acceptable is simply not looking at the whole picture. Think about it. Do you want to give the government more control over individual behavior or less? Personally, and with very few exceptions, I will argue for less control every time. The point Iâ€™m trying to make is that just because a right is not specifically mentioned in the constitution does not mean it should not be protected by the constitution.
Contrary to the assertions of many religious political conservatives of this country, judicial interpretation of the constitution is not a bad thing for the Supreme Court to engage in, in fact, itâ€™s their job. To the extent that the Court interprets the constitution to provide us with more freedom and protection from governmental intervention in our private lives, such interpretations should be applauded.
For those individuals who sincerely feel that abortion is wrong, I whole-heartedly support your right to protest and air your views publicly in an effort to garner support for your position. However, I donâ€™t support your efforts to attain your goal by advocating for a constitutional interpretation which will likely have the effect of limiting privacy rights far beyond the scope of abortion. I am not asking that you change your moral position on abortion. I am simply asking that you re-examine the implications of the means by which you are attempting to achieve your goal.
To sum upâ€¦.the right to privacy is not specifically guaranteed to us in the constitution. Neither are a number of other rights. The protection of these rights stems from either a long history of judge-made common law or from judicial interpretation of the constitution. This is not a bad thing. People who are trying to ban abortion by curtailing the right to privacy are hurting everyone, including themselves. Try to keep in mind that the constitution is not so much about what we can do as individuals as it is about what our government can do to us. The more power we give the government to legislate our behavior, the less freedom we have. A constitutionally guaranteed right to privacy provides us all with protection against unjustified and unwanted governmental intervention in our personal lives. Just think about it.