Members Only | December 9, 2021 | Reading Time: 5 minutes

Lose Roe, lose right to privacy

Abortion, birth control, Internet usage, same-sex marriage, sexual privacy and even healthcare privacy are on the line.

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After oral arguments in Dobbs last week, it seems a lot of white cis male journalists finally realized the attacks against abortion were kind of a big deal. Sure, a lot of women had been sounding the alarm about it for decades but who can hear over such high-pitched screeching? 

Besides its not like the attacks against abortion are really going to affect these men, right? I mean they don’t need to get abortions and they mostly live in states that have their own laws protecting abortion or can even afford to send their girlfriends abroad if things get really bad. Except … there might be a tiny problem for them if Roe is overturned. 


If the attacks against “social issues” built on the right to privacy keep coming (and they will, don’t doubt it), I hope these men remember to clear their browser histories.


Because the thing is, Supreme Court cases that protect the right to use abortion and birth control are pretty important precedents for ensuring the right to privacy. If the attacks against “social issues” built on the right to privacy keep coming (and they will, don’t doubt it), I hope these men remember to clear their browser histories.

The legal argument around the right to abortion comes down to whether the right is protected in the constitution. In Roe v. Wade, the Supreme Court wrote that, “This right of privacy … founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 

While many have argued abortion should have been protected through stronger constitutional grounds (I explain Justice Ginsburg’s Equal Protection argument in an earlier article), the constitutional protection remains in the right to privacy and personal liberty. 

Planned Parenthood v. Casey further protects the right to abortion in a right to personal autonomy. Today, we rely on the right to privacy often in our daily lives but the protection remains contested. Arguably a right to privacy is embedded in the Fourth Amendment when one looks at protections against unreasonable search and seizure as well as the right to not have soldiers quartered in our homes. After all, why would police need warrants without an assumed right to privacy? 


In oral arguments in Dobbs v. Jackson, Mississippi Solicitor General Scott Stewart, arguing for a 15-week abortion ban, claimed abortion was not protected in the text of the constitution, but tried to distance any decision overturning Roe from also overturning a right to privacy. 


Despite this, the first case that explicitly recognized a right to privacy was Griswold v. Connecticut in 1965. While the right was recognized narrowly to protect the use of contraception between married couples, the court found there was an implied right to privacy in multiple amendments in the Bill of Rights. In Justice Harlan’s concurrence in Griswold, he argued for a right to privacy protection in the 14th Amendment, which has been the justification in later privacy cases. Eisenstadt v. Baird in 1971, which extended the right to birth control for unmarried people, and Roe v. Wade both cemented the right to privacy from the 14th Amendment.

In oral arguments in Dobbs v. Jackson, Mississippi Solicitor General Scott Stewart, arguing for a 15-week abortion ban, claimed abortion was not protected in the text of the constitution, but tried to distance any decision overturning Roe from also overturning a right to privacy. 

Justice Sonia Sotomayor pointed out that any argument for overturning Roe and Casey, that abortion is not protected in the text of the constitution, would clearly endanger other cases that rely on rights “discerned from the structure of the Constitution.” Even Marbury v. Madison, which protects the Supreme Court’s authority for judicial review, is based on a right “discerned from the structure of the Constitution” and not from the text. 

Stewart obviously didn’t want to admit that tons of rights and cases would be in jeopardy from overruling Roe, so he attempted to draw a distinction between Roe and Casey and other cases that protect the use of birth control, private sexual activity or same-sex marriage. 


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Stewart argued the right to abortion is different from these other cases, because “Griswold, Lawrence, Obergefell, these are — these are cases that draw clear rules: you can’t ban contraception, you can’t ban intimate romantic relationships between consenting adults, can’t ban marriage of people of the same sex,” he said. (I’m not sure how “you can’t ban abortion before viability” isn’t a similarly clear rule but nevertheless that’s his claim.) 

Stewart’s second distinction is more problematic. He claims the right to abortion is different, because it’s the only right dealing with the purposeful termination of a “human life.” Putting aside the question of when a fetus becomes a “human life” for a minute, one could definitely argue there are other constitutional rights that deal with taking a life. 

The state has the right to purposely terminate a human life with the death penalty, which has been interpreted to not be included in the Eighth Amendment protection against cruel and unusual punishment. 

Additionally, since DC v. Heller in 2008, the court has interpreted the Second Amendment to include an individual right to carry a handgun for the purpose of self-defense, a right justices reiterated in oral arguments for NY State Rifle & Pistol v. Bruen. Sure, it’s possible that shooting someone in self-defense wouldn’t always result in purposely terminating a human life but it’s clear the court recognizes the protection to terminate another person’s life in self-defense. I, and some common law scholars, would argue terminating an unwanted pregnancy is self-defense, considering how dangerous pregnancy is. 

Whatever Stewart claimed, in Dobbs, about the safety of birth control, private sexual behavior and gay marriage, we know all these rights are in danger. We know this, because conservatives have told us. 


Whatever Stewart claimed, in Dobbs, about the safety of birth control, private sexual behavior and gay marriage, we know all these rights are in danger. We know this, because conservatives have told us. 


Attacks on birth control have been increasing for the past two decades. Medical disinformation from conservative sources conflates birth control and plan B with abortion in attempts to outlaw birth control as well. The 2016 Republican platform, which was copied wholesale in 2020, includes promises to defend “traditional marriage. Amy Coney Barrett wouldn’t say in her confirmation if she supported birth control and gay marriage. The American Enterprise Institute, a right-wing think tank, expressed excitement at the possibility of rolling back all privacy protections after Kavanaugh’s appointment. And the architect of the Texas bounty hunter law, Jonathan Mitchell, has said that Lawrence v. Texas (protecting private sexual behavior) and Obergefell v. Hodges (protecting same sex marriage) are “as lawless as Roe.” He has indicated he’s coming for those rights next.

Ultimately, Roe v. Wade protects a lot more than abortion in terms of legal precedent. It, along with Griswold, are necessary stare decisis for our entire understanding of a fundamental right to privacy. 

If we lose the right to an abortion, we likely will also lose important gay rights protections with attacks to Obergefell and Lawrence. But it’s also possible we will lose a lot more. 

While Lawrence specifically concerned sodomy between two men, the decision protects all private sexual behavior. Losing the precedent for privacy protections could have far reaching repercussions for internet usage, sexual privacy and even private healthcare information. 

You would think the people screaming HIPAA all the time might at least care about that.


Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

1 Comment

  1. Dan Rahm on December 12, 2021 at 8:41 pm

    .
    Thank you
    .

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