12 August 2022

Privacy in Peril

From Reproductive Freedom to Forced Birth

On Saturday, 25 June 2022, American women woke up to a different reality – a world where we are no longer able to control our own bodies, where we no longer have the right to make personal decisions about whether and when to have children, and where our reproductive and family planning decisions are subject to laws enacted by state legislatures codifying religious views, dressed up as public policy. Going forward, the disparate laws of 50 states will determine whether any woman has the right to terminate a pregnancy.

This dramatic change in circumstances came about because one day earlier, in Dobbs v. Jackson Women’s Health Organization, five justices1) on the US Supreme Court decided that the US Constitution does not protect a woman’s right to terminate a pregnancy. For the past 49 years, a person’s decision about whether to have a child has been considered one that falls within the scope of the right to privacy, construed as part of the liberty interest protected by the Fourteenth Amendment.

In overruling Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa v Casey (1992), the Court effectively strips women of their rights as autonomous, equal citizens. This undoing of women’s autonomy comes in part from the Dobbs majority’s failure to recognize that the right to terminate a pregnancy derives from a right to privacy. Roe and Casey recognized that reproductive freedom implicates bodily integrity and physical privacy, along with a decisional privacy interest in the critical life choices surrounding reproduction and family planning. In the space of a single day, the Dobbs Court eviscerated the freedom and the privacy rights Americans have relied on since 1973. Moreover, in an era driven by an information economy and rapidly expanding surveillance technologies, the Dobbs Court’s eradication of the right to terminate a pregnancy also severely compromises informational privacy, which involves the right to shield information from disclosure.

Physical Privacy and Bodily Integrity

Under Dobbs, states are now free to require women to carry pregnancies to term. The compelled continuation of a pregnancy involves a physical privacy interest because it infringes upon a woman’s right to bodily integrity by “imposing substantial physical intrusions and significant risks of physical harm.”

Whether or not a pregnancy is wanted, it is intensely and irrevocably a physical experience. Profound alterations to the bodies of pregnant people can have long-lasting physical consequences. Both pregnancy and childbirth also entail significant physical risks, including death, that far outstrip the risks associated with safe, legal abortions. Forced pregnancy and birth are, according to Justice Blackmun’s opinion in Casey concurring in the judgment in part, more substantial violations of bodily integrity than the Court has found in other contexts. And, as the Dobbs dissent notes, the fact that some women “happily undergo” these “burdens and hazards of their own accord” does not lessen the degree to which the state impinges on a woman’s bodily integrity when it “compels her to bring a pregnancy to term.”

Even before Dobbs, some state laws required women to undergo extremely invasive, medically unnecessary procedures — like transvaginal ultrasounds — before exercising the right to terminate a pregnancy. Post-Dobbs, the imposition upon women’s bodies, whether through forced procedures or denial of medical care, will only expand. State laws that prohibit abortion are compromising women’s access to a full spectrum of reproductive health care. Women with life-threatening ectopic pregnancies and incomplete miscarriages have, for example, experienced delayed treatment or been denied treatment by some doctors amid the confusing legal landscape created by Dobbs. State laws that prohibit abortion are also affecting women’s access to health care in cases that have nothing to do with the termination of a pregnancy. A woman with lupus was denied access to her normal medication because the drug in question could also be used to end a pregnancy. Women with rheumatoid arthritis and other autoimmune diseases are facing similar challenges.

The concepts of harm or risk to a woman’s health and violations of bodily integrity are notably absent from the Dobbs majority’s opinion, as is the recognition of the relationship between the control of one’s body and one’s liberty. To this end, the Dobbs majority does not even address the issue of unwanted pregnancies that are the result of rape or incest. Less than a month after Dobbs was issued, a ten-year-old rape victim from the state of Ohio was forced to travel to Indiana to obtain an abortion. Following Dobbs, states can outlaw abortion even in cases of rape or incest, or when carrying a pregnancy to term endangers a person’s life.

Decisional Privacy and Autonomy

Restrictions on a person’s right to terminate a pregnancy implicate a decisional privacy interest. The major decisional privacy cases in the US — those involving choices about marriage, procreation, contraception, family relations, child rearing and education — recognize the significance of these choices in a person’s ability to lead an autonomous, independent life with dignity and respect. These values are reminiscent of the inviolate personality, a German philosophical concept that informed the right to be let alone at the heart of Samuel D. Warren and Louis D. Brandeis’s seminal essay “The Right to Privacy” in 1890.2) As Justice Blackmun noted in his opinion in Casey, “matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Restrictive abortion laws deprive women of “basic control” over their lives because “motherhood has a dramatic impact on a woman’s educational prospects, employment opportunities, and self-determination.” Such choices, Blackmun explained, “that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government.” In other words, these choices should be free from governmental intrusion. Privacy in these matters is a condition precedent to autonomy – a woman’s ability to forge her own identity and control her own life.

While the Dobbs majority evinced some confusion on this point, the freedom to make intimate, personal choices that are central to personal dignity and autonomy, described in Casey, is part of the right to privacy identified as a liberty interest in Roe. Both Roe and Casey recognized privacy as a form of Fourteenth Amendment liberty. And lawful access to abortion under those cases was an example of that right.

Notably, the three dissenting justices do not use the phrase “right to privacy” anywhere in their opinion. But they do mention “private” and “personal” “choices” repeatedly and connect the right to terminate a pregnancy with autonomy, liberty, and freedom from government intrusion throughout. Indeed, they explicitly associate “coerced pregnancy and birth” with a “profound loss of autonomy and dignity.” The language used in the dissent thus conveys the values historically associated with the seminal decisional privacy cases. As the Dobbs dissent explains, the “Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven – all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.”

While the Dobbs majority treats the decision to terminate a pregnancy as one that is limited in scope and time, the dissent recognizes a broader liberty interest spanning the course of one’s reproductive life. The dissent explains that, for the past 50 years, “[w]omen have relied on the availability of abortion both in structuring their relationships and in planning their lives.” Because Dobbs took away this fundamental right, states now have the power to usurp the very personal, life-altering decision of whether and when a person chooses to have children and to disrupt other decisions made in reliance on that right. Going forward, a state is free to weigh its interest in the life of the fetus and its purported interest in the health of the mother against the woman’s interest in making a decision about whether to have a child. But the actual balancing of interests is no longer required; Dobbs’ eradication of the constitutional protection of privacy in this context has effectively left states free to disregard entirely the multi-faceted interests of the woman in drafting their abortion laws.

Moreover, decisions to obtain abortions are not made in a vacuum, and they often implicate other privacy interests. In the US, 60% of people who obtain abortions are already parents. A forced increase in family size affects their ability to care for the children they already have. Historically, the Supreme Court has treated parenting decisions, decisions about family relationships and child-rearing as another facet of the right to privacy. In some contexts, then, the elimination of the right to abortion necessarily circumscribes other dimensions of a person’s right to privacy.

Informational Privacy

An additional privacy interest — informational privacy — is implicated by the Dobbs majority’s elimination of a woman’s right to terminate a pregnancy. Informational privacy involves a right to shield information from disclosure, which has been significantly compromised by the surveillance capabilities of 21st Century technologies and the business plans of companies that profit from collecting and trading in customers’ personal data. In the wake of Dobbs, the criminalization of both women’s reproductive decision-making and the provision of associated medical care will be supported by state scrutiny of the details of women’s lives to a degree never before seen, using the instruments of modern technology. Internet search histories will, for example, reveal when women seek information about abortion. The act of purchasing mifepristone and misoprostol, the drugs used for medication abortion, will also be captured by modern digital technologies. Cell phone tracking technologies will provide additional evidence about when and where women obtain abortions and enable the identification of those who may assist them.

The US has no national data privacy law to prevent companies from collecting and sharing information pertaining to reproductive decision-making. Moreover, as we’ve argued, the US Constitution’s ability to shield this information from law enforcement investigations is extremely limited. Any person who, for example, suffers a miscarriage in a state that prohibits abortion may be subject to an investigation of the circumstances under which their pregnancy ended. The fear of investigation and an awareness of how technology facilitates surveillance of reproductive decision-making will cause many people to avoid searching for information online, learning about healthcare options that should be available to them, and meeting with people who may be able to assist them.

The surveillance of women’s reproductive decision-making will expand further, in both intrusiveness and scope, through laws that deputize citizens to supplement and sharpen the already keen vision of the state’s eye in the investigation and enforcement of restrictive abortion laws. As the Dobbs dissent notes, Texas has turned “neighbor against neighbor” by passing a law that “enlist[s] fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.” Other states, including Oklahoma and Idaho, have followed Texas’ lead. Such “bounty hunter” laws enable a modern version of Salem, Massachusetts, when, in 1692, that town’s citizens scrutinized their neighbors’ behavior for signs of witchcraft and accused over 200 of them of that high crime. This promotion of citizen surveillance has the additional effect of undermining privacy as a common good with social value necessary to a well-functioning democracy.

Other Privacy Rights at Risk

In declaring that the privacy interest encompassed by the Fourteenth Amendment’s protection of liberty does not include a right to terminate a pregnancy, the Dobbs majority lays waste to all of the privacy rights and interests implicated in women’s reproductive decision-making, destroying women’s autonomy and equality before the law. But the Dobbs decision has even more far-reaching implications for privacy.

The dissent rightly warns us that “no one should be confident that this majority is done with its work.” Despite the majority’s contestations that its holding is limited to the right to terminate a pregnancy, its rationale simply cannot coherently be limited to the right to obtain an abortion. The right to terminate a pregnancy is inextricably linked to “settled freedoms” and is part of a broader right to privacy that includes the rights to use contraception, to engage in consensual sexual activity, and to same-sex marriage. Indeed, the right to terminate a pregnancy flows directly from a married couple’s right to use contraception recognized by the Court in Griswold v. Connecticut (1965) and later extended to unmarried people in Eisenstadt v. Baird (1972). All of these rights, the dissent argues, are part of the “same constitutional fabric protecting autonomous decision-making over the most personal of life decisions.”

Unlike the disingenuous majority, Justice Thomas is at least honest in his concurrence when he explicitly advocates for the overturning of Griswold, Lawrence v. Texas (2003; right to same-sex intimacy) and Obergefell v. Hodges (2015; right to same-sex marriage). The Dobbs majority refuses to recognize a right to terminate a pregnancy because no mention of abortion is made in the US Constitution, and it is not a right that is “deeply rooted in history.” Not until the time of Roe, the majority claims, did people think that the Fourteenth Amendment’s guarantee of liberty encompassed a right to terminate a pregnancy; there was no prior support in American law.

The history to which the majority refers, of course, is one forged and written uniquely by white men, who were, unsurprisingly, the only human beings able fully to claim the franchise under the original Constitution they wrote. Neither Black people nor women were full and equal members of the society envisioned by the original text of the US Constitution. Ironically, as the dissent notes, “in 1868, [the year the Fourteenth Amendment was ratified] the first wave of American feminists were explicitly told — of course by men — that it was not their time to seek constitutional protections.”

Putting aside the dubious nature of the majority’s historical interpretation of existing laws and practices regarding abortion, under the Court’s “history and tradition” line of argument, the majority could just as easily extinguish the rights to contraception, same-sex intimacy, and marriage because these rights are not “deeply rooted” in history either.

Going Forward

Dobbs visits damage upon the real lives of a great majority of women, but particularly upon those who, because of their race, economic circumstances, or LGBTQ+ identities, are specifically vulnerable to a sociopolitical environment characterized by systemic discrimination against marginalized groups, increasing economic inequality, lack of access to health care, and the expanding influence of intolerant far-right Christian ideology.

In the US, comprehensive sex education in schools is far from the norm, and ineffective abstinence-only sex education is the only sex education provided in many geographic areas. Contraception is not free and easily accessible, and insurance coverage is variable, often limited, and confusing. Teen pregnancy rates are higher than those of many other developed countries, and the states that have moved expeditiously to ban abortion in the wake of Dobbs have some of the highest rates in the country. The US also has one of the highest