This past June the United States Supreme Court in the decision titled Dobbs v. Jackson, overturned Roe v. Wade a 50 year old precedent that established a woman’s right to reproductive treatment was, for the most part, between her and her physician.
Whether one is pro-choice or pro-life, the ultimate determination in this decision is that a woman has a lesser right to privacy than a man.
As a country we have not faced such a situation since 1920 when the 19th Amendment to the United States Constitution was passed guaranteeing women the right to vote.
A woman’s right to reproductive freedom was rooted in the 14th Amendment right to privacy most prominently enshrined in a 1965 United States Supreme Court decision titled Griswold v. Connecticut. In that decision the Court invalidated a Connecticut law that made it unlawful for married couples to obtain and use contraception. In its 7-2 decision the Court determined that there was a right to privacy implied in specific provisions of the Bill of Rights such as those in the First Third Fourth and Fifth Amendments to the United States Constitution and that those various guarantees created “zones of privacy.”
The right to privacy established in Griswold would form the basis of later Court decisions. In Lawrence v. Texas the Court ruled that the right to privacy protected adults engaged in private consensual sexual behavior in a Obergefelll v. Hodges, it ruled that the right to privacy afforded the right to same-sex marriage. Now, all of these decisions and the right to privacy itself, are in danger of being overturned according to the concurring opinion of Clarence Thomas in the Dobbs decision.
In that opinion Thomas called for the Court to re-examine these precedents and the principle that the 14th Amendment enshrines a right to privacy. ( Notably, and for obvious reasons, Thomas did not include the Court’s decision in Loving v. Virginia, which overturned state prohibitions on interracial marriage.)
In 1890, one-hundred and thirty-three years ago, future United States Supreme Court Justice Louis Brandeis published an article in the Harvard Law Review titled The Right to Privacy. In that article, Brandeis and his co-author, Samuel Warren, first advocated for “the right to be left alone.” Almost three decades later, in 1928, Brandeis would enshrine this principle in his dissenting opinion in Olmsted v. United States. There, he wrote;
“The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution under took to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”
This became the bedrock of the right to privacy later enshrined in Griswold and its progeny.
I adhere to the belief that no government federal or state has any business determining who we are allowed to marry, what takes place in the privacy of a bedroom between two consenting adults, what contraception is sought by couples from their doctors, or whether a woman or a couple make their decision to carry an unwanted pregnancy to term.
An intrusion into these decisions, in every instance, should be eclipsed by the “right to be left alone.”