Michigan Journal of Gender & Law Online
A Modest Defense of Privacy
By Mitchell LaCombe
The story of the conservative backlash that Roe v. Wade triggered is well known. Less familiar is the pro-choice criticism that the decision elicited. In truth, even among liberals and feminists, the Supreme Court’s decision to ground the right to abortion in a constitutional “right of privacy”[i] was not exactly a popular one. Various pro-choice writers have proposed alternative rationales, several of which would either relocate reproductive rights to equal protection doctrine[ii] or at least recognize “a woman’s equality aspect.”[iii] One persistent pro-choice critique of the Court’s reliance on the right to privacy, for instance, bemoans the right’s essentially negative nature.[iv] In a series of cases, the Court has held that the right to privacy does not require the government to “commit any resources to facilitating abortions,”[v] because the right to privacy secures the rightholder against “unduly burdensome interference” by the government but does not entitle her to the government’s support.[vi]
For some feminist legal scholars, the problem with privacy is deeper still. On this account, the right to privacy is not only an insufficient or unideal basis for abortion rights, but one that is “fundamentally incompatible with the freedom and equality of women.”[vii] Indeed, for these scholars, the right to privacy is no less than “a Faustian bargain that obfuscates, masks, and privatizes domestic and sexual violence, and more broadly protects rather than dismantles the patriarchal hierarchies that persist in private homes.”[viii]
This blog post will focus on the last of these arguments. As I understand it, the argument maintains that the constitutional right to privacy undermines the pursuit of women’s freedom and equality by erecting “a constitutional wall of protection” around the home[ix] and by reinforcing a “public/private split.”[x] The same right that protects reproductive freedom, the argument says, cloaks the oppression of women by keeping the government out of the home, the family, and intimate relationships.
I doubt that I am alone in finding this a most remarkable conclusion. Can it really be true that the right on which Roe was built is antithetical to the freedom and equality of women? That it is a Faustian bargain, with all that implies? In my view, and for the following reasons, no.
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Consider, first, what Roe meant when it referred to a “right of privacy.” It is true that, when the Court first dealt with this concept in Griswold v. Connecticut, it focused on the privacy “of the marital relation and the marital home.”[xi] A year before Roe was decided, however, the Court recast the right to privacy in Eisenstadt v. Baird as “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”[xii]This is the “right of privacy” on which Roe relied, as the Court has made clear on several occasions.[xiii]
The Eisenstadt conception of the right to privacy concededly leaves much to be desired by way of clarity. The idea of a right to be free from state interference in matters “fundamentally affecting a person,” however, evinces a clear concern with the profound consequences certain decisions have upon a person’s life. Whatever other conditions must be satisfied before one can invoke the right to privacy (protected choices generally seem to be intertwined with moral and religious issues), the Court’s decisions suggest that the touchstone is the tendency of the decision to “shape an individual’s destiny.”[xiv] With “destiny” as the lodestar, it is easy to see how thisright to privacy encompasses the right to terminate one’s pregnancy. As Justice Douglas explained in Doe v. Bolton, Roe’s companion case: “Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future.”[xv]
So understood, worries that Roe’s right to privacy builds “a constitutional wall of protection” around the home, thus shielding “domestic and sexual violence,”[xvi] largely dissipate. Roe’s right to privacy protects choices, not places, and those choices are central to “identity, autonomy, control and self-definition.”[xvii]
Now, that’s not to deny that other legal concepts of privacy have been used to keep from public view what takes place in the home. Some nineteenth- and early-twentieth-century courts, for example, invoked “privacy” as a public policy justification for not intervening in disputes involving women and their husbands,[xviii] viewing evils such as domestic violence as less problematic than “the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber.”[xix] In Griswold, similar worries about “the intrusion of the whole machinery of the criminal law into the very heart of marital privacy” and “the necessity for testimony as to the mode and manner of the married couples' sexual relations” were certainly motivating Justice Harlan,[xx] and perhaps other justices as well.[xxi]
Roe’s concept of privacy, however, cannot be equated with any such public policy principle of nonintervention, and it makes little sense to condemn the former simply because it shares a term with the latter. Moreover, whatever one makes of the various Griswold opinions, the Court later repudiated the idea that the decision confers a special right upon married couples and/or marital homes.[xxii] The Court has instructed that Griswold must be viewed “in light of its progeny” as a case about reproductive autonomy.[xxiii]
Nor, to the best of my knowledge, has Roe’s right to privacy been extended to protect conduct feminists are especially likely to deem pernicious. For what it’s worth, the Tennessee Court of Criminal Appeals has rejected the idea that there is any “right to engage in incestuous relationships.”[xxiv] On the other hand, Lawrence and Obergefell—two critical decisions for LGBT rights—are outgrowths of the right Roe recognized, for those are also decisions about the right of individuals “to define and express their identity.”[xxv]
I should note that some have argued that Obergefell might be extended to plural or group marriage (though the matter is evidently quite contentious).[xxvi] Since polygamy often looks patriarchal, some feminist writers may oppose affording the institution constitutional protection. Should that day ever come, I will need to consider the matter at greater length. For now, I am content to cite Sarah Rogozen’s 2017 note, which I think makes a compelling case for respecting the decisions of women who choose to enter such arrangements.[xxvii]
Finally, it is true that Roe’s right to privacy reinforces a “public/private split,” if by that one merely means that the right designates some cluster of choices with which the government cannot generally interfere. For me, this is no problem. The alternative is totalitarianism, or a complete repudiation of any principle of individuality.
[i] Roe v. Wade, 410 U.S. 113, 153 (1973). [ii] See, e.g., Noya Rimalt, Against Roe Exceptionalism: Degendering Abortion, in Research Handbook on Feminist Jurisprudence 264, 268 (Robin West & Cynthia Grant Bowman eds., 2019); Sylvia Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 1016-28 (1984); Donald Regan, Rewriting Roe v. Wade, 77 Mich. L. Rev. 1569 (1977). [iii] Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. Rev. 375, 385 (1985); see also Jack M. Balkin, Judgment of the Court, in What Roe v. Wade Should Have Said 31, 42-45 (Jack M. Balkin ed. 2005). [iv] Rimalt, supra note 2, at 267. [v] Webster v. Reproductive Health Servs., 492 U.S. 490, 511 (1989). [vi] Maher v. Roe, 432 U.S. 464, 473-75 (1977); see Webster, 492 U.S. at 509-511; Harris v. McRae, 448 US 297, 316 (1980); Poelker v. Doe, 432 U.S. 519, 521 (1977) (per curiam). [vii] Annabelle Lever, Must Privacy and Sexual Equality Conflict? A Philosophical Examination of Some Legal Evidence, 67 Soc. Res. 1137, 1145-46 (2000); see Catharine A. MacKinnon, Feminism Unmodified 93-102 (1987); Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1409 (2009) (writing that Professor MacKinnon’s arguments “were never answered satisfactorily by feminist supporters of Roe v. Wade”); Samantha Forman, Equality of Right under the Law: State Constitutional Protection for Abortion Rights in Maryland and Beyond, 6 Wis. Women’s L.J. 87, 90, 96-97 (1991). [viii] Robin West, Women in the Legal Academy: A Brief History of Feminist Legal Theory, 87 Fordham L. Rev. 977, 986 (2018). [ix] West, supra note 7, at 1409. [x] MacKinnon, supra note 7, at 93. [xi] Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring); see id. at 484-86 (majority opinion). [xii] Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis removed). [xiii] See, e.g., Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833, 875 (1992) (“[T]he right recognized by Roe is a right ‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’”); Carey v. Population Servs. Int’l, 431 U.S. 678, 685-87 (1977); Roe v. Wade, 410 U.S. 113, 169-70 (1973) (Stewart, J., concurring). [xiv] Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015); see, e.g., Lawrence v. Texas, 539 U.S. 558, 565 (2003) (“Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny . . . .”); Casey, 505 U.S. at 851 (joint opinion of plurality); id. at 927-28 (Blackmun, J., concurring). [xv] Doe v. Bolton, 410 U.S. 179, 214 (1973) (Douglas, J., concurring). [xvi] West, supra note 8, at 986. [xvii] MacKinnon, supra note 7, at 101. [xviii] See, e.g., Thompson v. Thompson, 31 App. D.C. 557, 560 (1908); Longendyke v. Longendyke, 44 Barb. 366, 367-68 (N.Y. Sup. Ct. 1863). [xix] State v. Rhodes, 61 N.C. 453, 457 (1868). [xx] Poe v. Ullman, 367 U. S. 497, 548-53 (1961) (Harlan, J., dissenting); see Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring in the judgment) (citing his Poe dissent). [xxi] See Poe, 367 U.S. at 521 (1961) (Douglas, J., dissenting) (“If [the state] can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wife.”). But see Warden v. Hayden, 387 U.S. 294, 323-25 (1967) (Douglas, J., dissenting) (suggesting that Griswold is a case about protecting individuals’ property from police rummaging). [xxii] Carey v. Population Servs. Int’l, 431 U.S. 678, 687 (1977). [xxiii] Id. [xxiv] Smith v. State, 6 S.W.3d 512, 518-19 (Tenn. Crim. App. 1999). [xxv] Obergefell v. Hodges, 135 S. Ct. 2584, 2593 (2015); Lawrence v. Texas, 539 U.S. 558, 578 (2003). [xxvi] Compare Obergefell, 135 S. Ct. at 2621-22 (Roberts, C.J., dissenting), and William Baude, Opinion, Is Polygamy Next? N.Y. Times (July 21, 2015), https://www.nytimes.com/2015/07/21/opinion/is-polygamy-next.html, with Jonathan Rauch, No, Polygamy Isn’t the Next Gay Marriage, Politico (June 30, 2015), https://www.politico.com/magazine/story/2015/06/polygamy-not-next-gay-marriage-119614, and Richard A. Posner, John Roberts’ Dissent in Obergefell is Heartless, Slate (June 27, 2015 1:56 PM), https://slate.com/news-and-politics/2015/06/supreme-court-gay-marriage-john-roberts-dissent-in-obergefell-is-heartless.html. [xxvii] Sarah Rogozen, Note, Prioritizing Diversity and Autonomy in the Polygamy Legalization Debate, 24 UCLA Women's L.J. 107, 129, 144-45 (2017).