Wednesday, January 11, 2006

The right to privacy, and the rights to privacy.

You don’t have to be a Constitutional law expert to know that there is a controversy about whether or not the Constitution guarantees to women the right to have an abortion. It all goes back to a Supreme Court decision called Griswald.

It seems hard to believe that there was a time when contraception was illegal, even for married couples, but such was the state of the law in Connecticut, in 1965. Griswald v Connecticut, decided in that year, involves a clinic that performed medical examinations, advised on birth control and distributed birth control devices.

William O. Douglass wrote the opinion of the Court which found
“that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’”

Justice Douglass took care to distinguish the right to privacy that governed the ruling in that case, from the 4th Amendment right to be free from unreasonable searches. Basically, the right to privacy at the core of the Griswald case is “the right to be left alone.”

In 1972, the Eisenstadt case extended the ruling of Griswald to protect access of unmarried couples to birth control. Justice Brennan writing for the majority said,
“If the right of privacy means anything, it is 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.”

In 2003, the Supreme Court recognized that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment, in a case that struck down Texas anti-sodomy laws. In Alaska, the right to privacy is explicit in the Constitution, and courts have interpreted it to include the right of a student to have long hair, and the right to possess marijuana for non-commercial purposes in the home.

At this point your eyes may be glazing over and you may be wondering why all of this matters. Here’s the answer: Because Roe v Wade is rooted in the right to privacy. The decision, which should be read by everyone, holds:

“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

(Incidentally, for those who are fans of the Original Intent of the Framers of the Constitution, Roe v Wade documents the fact that at the time the framers were doing their framing, abortions were legal.)

What got me thinking about this was the confirmation hearings of Sam Alito. When he was asked if there is a right to privacy in the Constitution, this is how he replied:

“I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there’s an invasion of a right to privacy, a legitimate expectation of privacy.”

Cute, Sam, but I don’t think you get it. That’s not the Griswald right to privacy. As Justice Lousis Brandeis said,
“The makers of the Constitution conferred the most comprehensive of rights and the right most valued by all civilized men—the right to be let alone.”

If you believe that a woman should have control of her own body, or that freedom means more than nothing left to lose; if you believe that you should be able to love whomever you want, or dress up like a ballerina while making love to your wife; if you feel like the government shouldn’t be able to keep tabs on you because, well, just because; if you feel that you should be allowed to live your own life the way you see fit as long as you don’t hurt others; if you believe that what makes America great is that we respect the rights of individuals, then Sam Alito’s answer should scare the daylights out of you.

And yet, you must give the man his due. He said it with such a reassuring tone, that you might have been misled into believing that this man will protect your rights. That’s what he wants you to think. Don’t fall for it.

“… and tell ‘em Big Mitch sent ya!”

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