The ability, and indeed the right, to have a legal and safe abortion in the United States is on the chopping block of the Supreme Court. That concern deserves front and center attention, as many women and families struggle with the implications of this decision in their lives, especially in states with restrictive or trigger antiabortion laws already on the books.
Privacy as a legal and cultural concept also hangs in the balance.
This elusive yet meaningful concept once defined for two generations at least a legal right throughout the United States. It is worth revisiting what that right was all about, and what will be lost, not only for abortion rights but for something dear to all of us in a democratic republic.
Numerous historians and legal observers have noted that as both the market and technologies increasingly encroached on traditional cultural norms of privacy as understood by mostly the middle class from the 19th into the 20th century, advocates sought to enshrine privacy as a legal right. “The right to be let alone,” as Louis Brandeis viewed it, or, as the legal scholar Prosser articulates, torts such as “public disclosure of private facts,” or “false light.” As state law, these torts had varying degrees of success throughout the first half of the 20th century but nonetheless contributed to a swelling of generalized privacy concerns that reached an apogee in the 1960s and early 1970s.
Two Supreme Court cases represent that height: the 1967 U.S. v. Katz, about privacy in electronic communications, and Roe v. Wade. In the first case, the Court overruled a 1928 decision that found no right to privacy in telephone communications. That right not only defined a “reasonable expectation of privacy” in electronic communications but bequeathed the 1968 Omnibus Crime Control and Safe Streets Act, commonly known as the first federal wiretapping act, memorialized in thousands of television and movie procedurals of carefully crafted rules about how law enforcement must use courts and protocols for listening to people’s telephone conversations.
Six years later, the Court grounded its decision in Roe in the same right. That legal hook has been both the decision’s strength and weakness. Stretching from contraception cases in the mid-’60s, a right to privacy held real meaning for people who did not want “police in their bedrooms,” just as they did not want the police to have unlimited potential to listen to their telephone conversations. For originalists, the failure of the Constitution to have the word “privacy” explicitly stated in it became a rallying cry to overrule it. For most people, something still rang true to the concept: a zone of personal experience and agency unencumbered by the government.
We are now witnesses to the evisceration of those rights. In 1986, Congress updated the wiretapping law and created the Electronic Communications Privacy Act, a law whose protections of U.S. persons the U.S.A. Patriot Act deteriorated, and both technology and the market (read: internet companies such as Google and Meta/Facebook) have rendered all but meaningless. A decision to overrule Roe will have the same result for reproductive freedom, effectively ending a “right to privacy” in matters of family planning and, and possibly, its progeny in same-sex marriage. (It will remain to be seen whether the additional constitutional hook of equal protection that the 1992 Casey case introduced will stand up to this court’s onslaught.)
The adverse impact on our lives can’t be missed. In virtually every area of American life, bedroom to boardroom, telephone to internet, little stands in the way of either the government or the market to surveil, intrude and encroach on both the intimate and the mundane. Government and data marts have comprehensive perspectives of us as persons and as consumers, lending to the adage that they know more about us through predictive algorithms than we know about ourselves. Whatever our founding fathers thought about “privacy,” a cursory understanding of the Bill of Rights stands as evidence that it was not that. While pro-choice advocates reorganize a legal approach to legal and medically safe abortion, might we also take this moment to review where we are without virtually any privacy rights in almost all walks of our lives. It is time for a very serious reassessment of what privacy means, or should mean, in a democratic republic for our personal experiences as well as voting and commerce. Let this crisis be the opportunity to revisit and update electronic communications, consumer laws and, yes, reproductive freedoms and personal agency. “Privacy” may be a rose by any other name—but whatever you want to call it, we need it to live a democratic life. I shudder to think what my children’s and grandchildren’s lives will be like in the next two generations without it.