We Have a Right to Privacy...Right?

Well, they did it.  We had a warning they were going to do it, from the leaked opinion in May, but it still was a blow to well over half the country when the Supreme Court struck down Roe v. Wade in its ruling on Dobbs v. Jackson Women’s Health Organization. It didn’t rule that abortion was unconstitutional – as Justice Kavanaugh wrote. “On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice” – but, rather, left it to the “voters,” i.e., the states, to decide.  And, boy, the “pro-life” states have been deciding and are ready to do a lot more deciding. 

Hyacinth Empinado/STAT

There has been lots of outrage, many protests, and calls for the Senate to pass a federal law explicitly granting a right to abortion (although that would require changing the filibuster rules).  Aside from the fact that the Democrats probably don’t have the votes to do that, even if they did, as soon as the Republicans retook Congress and the White House, they’d just repeal it and perhaps pass a law outlawing abortion everywhere.  So it goes.

There are going to be many fights about abortion in Congress and in the states, but I think it’s time for a new strategy.  It’s time to amend the Constitution. 

No, we’ll never get an amendment explicitly granting the right to an abortion – but we might get enough consensus on an amendment explicitly assuring the right to privacy.

Many people are surprised to learn that the Constitution does not include a right to privacy.  It has many rights that Supreme Court has ruled “imply” certain rights to privacy.  It did so in 1965’s Griswold, which for the first time gave married couples the legal right to use birth control.  It similarly did so in 1971’s Eisenstadt (contraception for unmarried couples) and in 2003’s Lawrence (gay sex), as well as, of course, in Roe (1973).  The current Court, though, found the Roe decision had been wrongly decided. 

The Court’s majority opinion, and Justice Kavanaugh’s concurring opinion, took pains to clarify that no other precedents were at stake with this ruling, but the dissenting opinions raised the alarm, and Justice Thomas’s concurring opinion sort of exposed the conservatives’ plan by noting: “In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell [same sex marriage].”

So, after fifty years of believing they has a right to an abortion, America women suddenly are finding out that, well, it depends on where they live.  Some states are not allowing abortions even in the case of rape or incest, perhaps not even if the woman’s life is at stake.  Some states want to restrict women from traveling to other states to get abortions, or to get abortion medications through the mail.

Strange times.

We’re finding that what happens between a woman and her doctor isn’t private; we’re finding that what procedures she may have or what prescriptions she may get isn’t private.  These are matters for the state; HIPAA is not going to protect you.  We’re being reminded that HIPAA only goes so far, and, in our digital age, that isn’t very far.  Women who might have been using, say, a period tracker now have to worry who else can access their data, and what they can do with it.    

But, of course, I say “women” and I’m talking about pregnancy/abortion, but in 2022 all of us should be wondering who might be accessing our health information, for what purposes.  Our digital footprints and fingerprints are everywhere, and third parties are very interested in them, be they for law enforcement purposes or for more mercenary reasons. 

Hospitals recently got caught selling patients’ health information to Facebook, and you’d think both would know better.  Then again, Facebook is still targeting ads to patient groups on its platform, despite having promised several years ago to do better about that.  If you think there are some responsible parties watching out for our health data, I’d like to know who they are. 

It’s not just health data, of course.  We’re already concerned about data privacy generally, especially when it comes to Big Tech (whomever they might be).  A 2021 KPMG survey found that 86% of respondents had a growing concern about their data privacy, and 78% expressed fears about the data being collected.  Congress is supposedly working on the issue (long after the EU passed GDPR), with the American Data Privacy & Protection Act passing a House subcommittee earlier this week, but that’s a long way from actual passage. 

Congress is not going to be our savior.  Some states are trying, such as California, but that’s only going to go so far.  If we want to assure our privacy, and the benefits that accrue from privacy, we’re going to need to go further – much further.  We’re going to need to amend the Constitution. 

Now, I’m not naïve.  In the hyper-partisan country we live in, getting three-fourths of the states to agree on anything seems like an uphill climb.  Just ask proponents of the Equal Right Amendment, which never passed.  The last Amendment that passed (the 27^th) took 202 years, and all it tried to do was delay Congressional salary increases until after the next federal election. 

No, we’re never going to get three-fourths of states to ratify an amendment granting a right to an abortion.  But we might get enough states to ratify an amendment that codifies our rights to privacy more generally, and, if worded artfully, the right to an abortion should be a consequence.  “Pro-life” advocates are not known to be people who are usually willing to compromise, but neither are they people who typically are comfortable with either the government nor Big Tech “spying” on them. 

A right to privacy might be one thing we could all agree on; maybe not all, but perhaps at least three-fourths of us. 

Pro-choice advocates, and I count myself as one, should still be making our voices heard – going to protests, letting our local, state and federal elected officials know our feelings, advocating to strike down laws restricting access to abortions and/or proposing ones that help assure it, and, most importantly, truly voting as though our rights are at stake, because they are.  Those are all necessary actions, but not sufficient.

Anti-abortion advocates have been playing the long game, and Dobbs is its latest success.  The attack on our rights will continue to fit the conservative, evangelical Christian worldview that now drives the Republican party.  The only way to assure them is a Constitutional Amendment.