Not a week seems to go by without more revelations about how the NSA (or recently the UK’s GCHQ) monitors our electronic communications. Who knew that all the time I waste watching old movie clips on YouTube was so interesting to the guardians of our national security.
And not a week goes by it seems without some state legislature in some Republican-controlled state considering yet another bill to intrude on and harass women who need to get abortions. Indeed, to judge by the sheer number of such bills since 2011 you might conclude that women’s pregnancies constitute the biggest problem that the nation faces. There is apparently no need to regulate the financial industry, or toxic chemicals that spill into rivers or the shale drilling business, whose rail cars keep blowing up—those things will sort themselves out. But pregnant women gone wild … they’re the ones the state needs to restrict.
On the face of it these two phenomena don’t have much in common with each other. But they are, in fact, connected by a crucial Constitutional conundrum: Is there a “right to privacy?”
The privacy question has come up mostly in our discussions of the NSA and the new digital world we all inhabit. Beyond the problem of whether our surveillance laws, written during the age of rotary phones, are hopelessly outdated, we have discussed what kind of privacy any of us can now expect when virtually everything we do (or is that everything we virtually do?) leaves an electronic footprint.
But privacy, at least as a legal matter, is also at the center of the debate over abortion and family planning more broadly.
In the 1965 case “Griswold v. Connecticut” which overturned that state’s ban on the sale of contraceptives, the Supreme Court found that there was a basic right to privacy in the “penumbras” of the Constitution. Those “penumbras” included the 9th amendment’s language that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and in the definition of personal liberty found in the 14th amendment.
That legal reasoning became the basis for the Court’s series of reproductive freedom decisions culminating in “Roe v. Wade” in 1973. It’s worth remembering that Justice Harry Blackmun, who wrote the Court’s majority opinion, had once served as legal counsel for the Mayo Clinic. For him, the privacy of the doctor-patient relationship was a paramount concern and he did not want states to interfere with that relationship.
Since those decisions, the so-called “Originalists”—those legal thinkers who believe the Constitution should only be read according to what the writers originally intended—have been howling. And they are, strictly speaking, right. There is no specific right to privacy in the Constitution—not like there is for speech and religious worship. If the right isn’t there in the text, so the Originalist reasoning goes, and if Congress has not passed a law defining such a right, then you don’t have it.
It is reasonable to assume that the founders never articulated this right, because it never occurred to them that it was necessary. They had a much more rigid separation between the “private” and the “public” than we do now, and they were primarily interested in defining the rules of the public realm. The Supreme Court in the 1960s and ’70s found a right to privacy in these contraception cases and in those penumbras, therefore, because they believed that by forcing itself into people’s bedrooms and doctor’s offices the state was violating a principle we had all simply taken for granted: we are entitled to privacy.
This issue might be easily resolved were we to add a” right to privacy” amendment to the Constitution, and there have been a handful of desultory attempts in that direction over the years. They haven’t amounted to much, nor are they likely to go anywhere precisely because of the abortion issue. Anti-abortion activists know full well that as soon as we all have a clear Constitutional guarantee of privacy, their ability to meddle in our private lives will evaporate.
The contested nature of our privacy rights presents a dilemma for those of us who want the NSA to stop eavesdropping on our cell phone calls too. If conservative judges are successful in eroding the right to privacy by allowing any number of humiliating restrictions on women trying to get abortions (of the sort issuing forth in red states right now), then it will be tougher for the rest of us to argue that our internet searches should be protected from government surveillance.
The revelations about the extent of NSA snooping have put the issue of our privacy on the front page. Those of us who care about reproductive rights have a political opportunity in this. For a generation the reproductive freedom movement has cast the issue as a matter of “choice.” That language resonates with our democratic ethos and our consumer culture. “Choice” is an American birthright, and so it should be.
But perhaps now feminists should start emphasizing the language of “privacy” more than we have in the past. In so doing, we can find common cause with those who want to defend our privacy in the electronic world as well. After all, the choices we make about our reproduction can only mean anything if they are made in the privacy of our bedrooms and doctors’ offices. Before we can protect choice, we need to defend privacy.