When Giving is Taking (or The Danger of Privacy)

It seems counter intuitive, but Supreme Court cases dealing with abortion are not about whether abortion is right or wrong. Indeed, the case of Roe v. Wade was not decided on that basis. The main issue the court was wrestling with was whether the “Right of Privacy” that emanated from a prior Supreme Court decision would make any law limiting abortion unconstitutional.

The majority of the court concluded that a woman had a privacy right to make medical decisions about her body and that this meant that the government could not pass laws that would unreasonably interfere with her medical decisions related to abortion. The remainder of the decision related to what constituted an unreasonable interference with that right. That portion of the opinion consisted of a fascinating and ingenious balancing of the rights of the unborn child and the mother’s right to make decisions about her body. In the end, the Court concluded that the state’s rights to interfere with the mother’s decision increased over the length of the pregnancy as the viability of the unborn child increased.

As you can see, there is no place in this analysis for a discussion regarding the rightness or wrongness of abortion. That is why it is nearly irrelevant for any Senators to ask a Supreme Court nominee about whether he or she believes abortion is wrong. That issue will never be central to any Supreme Court case on abortion.

From all of this you may get the impression that I agree with Roe v. Wade. I do not. While the opinion of the court is an ingenious bit of analysis it is based on a false premise. It is like a beautiful building built on deep mud. What’s more, I think that it is dangerous.

The false premise is the “Right of Privacy”. Search the Constitution and you will not find a right of privacy anywhere. So, how did the Supreme Court find it? It inferred it from other express rights in the bill of rights. Excerpts from the following amendments are cited as the basis of the Right of Privacy:

4th. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

5th. nor [shall the people] be deprived [by the U.S. govt] of life, liberty, or property, without due process of law.

9th. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

14th. nor shall any State deprive any person of life, liberty, or property, without due process of law.

The argument of the court regarding the right of privacy is seductive. It is true that there is a very strong indication of a concern for privacy in the 4th amendment. However, if the framers had wanted to create a broader privacy right why didn’t they. Why did they limit it to searches and seizures?

It is also seductive that the liberty rights secured in the 5th and 14th amendments would seem to allow a woman the liberty to have an abortion. However, this argument is deeply flawed. The liberty right referenced has almost always been interpreted to be limited to the freedom of movement (literally a ban on “imprisonment”) and only has relevance to a criminal or civil case against an individual (the reference to “due process” means the right to a fair hearing). It certainly cannot be deemed to have any bearing on a state’s legislative process in passing a law prohibiting abortion. To find otherwise would be an absurdity. If a state could be barred by the 14th amendment liberty right from passing a law banning abortion, how could so many states have managed to pass seatbelt laws or motorcycle helmet laws (limiting individual liberties where the state has no compelling interest)?

The last and most seductive argument for the privacy right found by the court (and, I think, the real reason that it was invented and has not been overturned) is: what is the downside? Certainly it seems great at first blush to secure an additional right for the people, doesn’t it? After all, what is the harm?

The harm is hidden but very real. Which gets me to the heart of this long meandering post. The framers wisely chose not to create any more rights in the constitution than they thought were necessary. They recognized that each right to which they granted constitutional protection effectively limited the peoples’ ability to order their society though the democratic process. By inventing a right of privacy, the Supreme Court, the least democratic branch of the government, has taken power from the legislative branch of government, the most democratic branch of the government.

Now, thanks to Roe v. Wade, the legislatures of the States and Congress cannot perform their democratic function of determining whether abortion is wrong (and should be banned), absent an amendment to the Constitution. Note: the legislatures are free under Roe v. Wade to conclude that abortion is ok and allowed.

Thanks to other cases interpreting the “Right of Privacy” legislatures are not able to define marriage in any way that does not include the marriage by people of the same sex. They are also not able to pass laws banning sodomy (or rather, laws prohibiting sodomy that have existed for ages are suddenly not binding anymore). There is no indication that the Court’s "Right of Privacy" will stop there.

The irony is that the Supreme Court’s invention of a “right” from a reference to liberty (in the 5th and 14th amendments) has taken away a true constitutionally-guaranteed liberty right of the people to make laws governing their society utilizing the democratic process.