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Thursday, February 29, 2024

How Dobbs Threatens to Torpedo Privacy Rights in the US

A reader of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization could understandably conclude that the Constitution’s protection of privacy was a relatively short-lived experiment, beginning in 1965 with the court’s famous decision in Griswold v. Connecticut, which first declared a “right of privacy” as implicit in the Constitution and involving the choice to use contraception, and ending emphatically in 2022 with Dobbs’ dismissive rejection of a privacy right to abortion.

But the reality is that the Constitution’s protection of privacy did not begin with Griswold and will not end with Dobbs. Dobbs has left the Constitution’s protection of privacy severely stunted and largely pared back to its textual roots, but privacy rights live on in different forms and will be embraced in the future, even by this Supreme Court.

Privacy Rights Did Not Begin With Griswold

The rationale of Griswold in finding a constitutional right of privacy was that respect for individual privacy was an animating value of the Constitution, evidenced repeatedly in the text by specific guarantees. Justice William Douglas’ majority opinion pointed out that certain rights reflected heightened concern with privacy, including the Fourth Amendment’s protection of persons, papers, and effects from government searches; the Third Amendment’s bar against quartering soldiers in private homes; and the Fifth Amendment’s guarantee against compelling individuals to surrender evidence against themselves.

And for decades before Griswold, the Supreme Court regularly found legal protection outside the Constitution for aspects of individual privacy against invasion by the government and private parties in a variety of settings.

For example, in 1845 the court found it unlawful to publish that a man had “the itch,” even if it were true: The law draws around individuals providently for their peace, the justices waxed, because humans are sympathetic creatures who deserve protection against those things calculated to exclude them from society. A few decades later, the court found that a woman injured in a train accident could refuse examination by the railroad company’s doctor. “To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity,” the justices wrote. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.” Quoting another judge, they added: “The right to one’s person may be said to be a right of complete immunity: to be let alone.”

And in the 1950s, the court decided that Congressional investigative powers could not “be inflated into a general power to expose where the predominant result [could] only be an invasion of the private rights of individuals,” including “an individual’s right to privacy,” and that “ruthless exposure of private lives in order to gather data” puts “constitutional freedoms in jeopardy.”

It was partly from this historical respect for privacy that Griswold inferred a more general “right of privacy.” Although no constitutional text specifically addressed a right of married couples to use contraception, Griswold thought it obvious enough that the idea of regulating the manner in which married couples were sexually intimate was “repulsive” to the Constitution’s respect for privacy.

The significance of Griswold was that it recognized a connection between the sorts of privacy protected by constitutional guarantees (protecting the home from government intrusion, for instance) and the arc of past court decisions (protecting the bodily integrity of individuals from compulsory examination) in generating a broader respect for individual autonomy in profoundly intimate and personal matters. Griswold saw constitutional rights not as isolated bits of text but as a constellation of values curbing government power over privileged individual interests.

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This understanding provided the foundation for the court’s development of constitutional privacy to include a range of personal matters, including family living arrangements, parental rights, marriage, and abortion. But it remained controversial, not only because of the intense division of views over abortion, but also because it allowed for broader judicial authority in interpreting the Constitution.

The ‘Treacherous Field’ of Constitutional Privacy

First, a quick explanation of Dobbs and its rejection of a constitutional privacy right to abortion. It’s a story that began in the 1890s and continued to 1937, a period during which the Supreme Court entered what Dobbs and prior court opinions described as the “treacherous field” of substantive due process.

For roughly four decades at the outset of the 20th century—the so-called Lochner Era, named for a representative case of the period—the Supreme Court applied the due process clause of the Fourteenth Amendment expansively to review and strike down a range of social and economic regulations on grounds that they were unreasonable. Applying a “substantive” understanding of due process, the justices often freely superimposed their own ideas of the appropriate limits on government regulation of individuals.

This review was not confined to exceptional areas of individual interest but applied broadly to government regulation of wages, working conditions, the economy, and commercial transactions, as well as to more personal interests, such as parents’ choices regarding education and childrearing.

Frustration with the justices' willingness to strike down popular legislation on the basis of their own views on reasonableness intensified during the Great Depression, as the court’s understanding of “substantive due process” became an obstacle to many New Deal efforts to revive the economy and protect the interests of the vulnerable.

Under mounting public pressure, the Supreme Court reversed course in 1937 and renounced Lochner’s understanding of substantive due process and the court’s power to second-guess ordinary regulation. After 1937, the court understood substantive due process to mean only that whenever government interfered with individual liberty, it must act rationally in pursuit of a legitimate state interest. Under this “rational basis test,” virtually all government regulation was held to be constitutional.

In 1965, in Griswold v. Connecticut, the Supreme Court revived a broader understanding of the Constitution’s protection for individual liberty after striking down a Connecticut law that regulated contraception. But it hesitated to describe this protection as substantive due process, given the near-universal rejection of the Supreme Court’s abuse of its role during the Lochner Era. Instead it attributed the protection to a more amorphous “right of privacy” implicit in constitutional guarantees without committing to any one textual source. The Griswold court also emphasized that this right of privacy did not open the door for more aggressive court review of ordinary social and economic regulation.

In Roe v. Wade in 1973, the court found that a woman’s right to elect an abortion fell within the heightened protection for individual privacy, while also suggesting that it would be better to acknowledge that this heightened protection came from substantive due process under the Fourteenth Amendment.

In future cases, the Supreme Court continued to acknowledge that its heightened protection for privacy rights was a product of substantive due process review while insisting that this was consistent with the rejection of Lochner because it applied only to “fundamental” liberty interests. As a result, the court’s doctrine required differentiating “fundamental” liberty interests, for which government interference was presumptively unconstitutional, from ordinary liberty interests, which the government was presumptively free to limit as long as it acted rationally.

The justices continued to struggle over which liberties ranked as fundamental. A narrower test favored by more conservative justices limited fundamental rights to only those that were clearly set out in the Constitution’s text or would have been regarded as essential at the time the Fourteenth Amendment was enacted in 1868. A more expansive approach, employed in Roe and other cases, looked more to a contemporary assessment of the profound stakes for the individual. Yet another approach, suggested in cases like Lawrence v. Texas, looked to evolving understandings of essential personal liberty as evidenced by popular consensus.

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Although Roe remained controversial in legal theory circles, in part for its more expansive understanding of fundamental rights and for the surprising specificity of its trimester framework for reviewing abortion laws, it was upheld in Planned Parenthood v. Casey in 1992 in a joint opinion that seemed to confirm an understanding of substantive due process that evolved with popular values. A line of landmark cases over the next quarter-century seemed to entrench this understanding. In particular, the court extended the same privacy principle to protect the right of gay people to form intimate relationships and to marry based on recognition of an “emerging awareness” of their equal claim to dignity in profoundly important relationships, notwithstanding the lack of historical protection for these rights. 

It was on this landscape that Dobbs signaled an abrupt reversal of course. While the court did not reject the concept of substantive due process outright, it rejected any basis for recognizing “fundamental rights” other than in the text of the Constitution or in deeply rooted historical traditions. Because the right to an abortion was not in the text, and because the framers of the Fourteenth Amendment in 1868 did not regard abortion as a fundamental liberty, the court ruled that there was no basis for special constitutional respect for a woman’s right to choose. Instead the majority found the right to make decisions concerning pregnancy to be an ordinary liberty of the same rank as mundane choices about lifestyle, commerce, or recreation, subject to freewheeling regulation so long as the government acted rationally.

Going forward, therefore, Dobbs’ approach would contain fundamental rights entitled to strong constitutional protection to a narrow band of liberties so universally respected across time that there would be little likelihood of political interference in any event.

The “privacy” right at which Dobbs took aim is really a right of personal autonomy: a right, as Dobbs put it, “to make and implement important personal decisions without governmental interference.” And in Dobbs, that right shrank considerably. It’s why many suggest that the next rights in the crosshairs could be those to contraception or same-sex marriage, as Justice Thomas openly encouraged in his concurrence: If these rights are not found in the text of the Constitution and if the framers of the Fourteen Amendment could not have imagined them in 1868, it’s not obvious why they would stand on firmer ground under the logic of Dobbs.

A ‘Very Different’ Sort of Privacy: ‘the right to shield information from disclosure’

The impact of the court’s opinion in Dobbs and its implications for autonomy rights in the name of privacy are seismic, but Dobbs doesn’t spell the end of legal protection for other forms of privacy, both under the Constitution and other laws. It’s clear from the text of the Fourth Amendment, for example, that the government can’t freely search homes without a warrant. The Dobbs opinion doesn’t change that.

Dobbs also doesn’t say anything about what Justice Alito called a “very different” sort of privacy in his majority opinion, “the right to shield information from disclosure.” It may seem a thin distinction, given that both autonomy and disclosure interests spring from a common root in privacy in its “right to be let alone” sense, but constitutional autonomy rights and the right of informational privacy have different objectives and often different legal foundations.

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What that distinction means is that nothing in Dobbs undermines the sort of privacy that appears in statutes, regulations, and the so-called common law, the law that has developed over time through court opinions. And even as the conservative court strips away rights that have come to mean everything for so many, the justices have protected privacy in that second sense, even in cases with constitutional implications.

Last summer, the same justices in the Dobbs majority decided, for example, that a “gravity of privacy concerns” supported shielding the identities of donors to charities. There, the justices decided the case in part on grounds of First Amendment freedom of association—the freedom to donate to a charity without revealing one’s identity to the state—and they seemed particularly worried about the doxing of such donors: “Such risks are heightened in the 21st century and seem to grow with each passing year,” the justices wrote, “as ‘anyone with access to a computer [can] compile a wealth of information about’ anyone else, including such sensitive details as a person’s home address or the school attended by his children.”

That interior quote came from an earlier opinion by none other than Alito, the author of the majority opinion in Dobbs.

A Look to the Future

While Dobbs severely cut back the scope of constitutional protection for privacy and all but rejected any general autonomy right of privacy broader than specific textual guarantees, it did not wipe away all privacy protections. First, the textual guarantees of privacy that Griswold relied on—the Fourth Amendment’s limit on government search and seizure, the Fifth Amendment’s bar against self-incrimination, and so on—remain.

Second, Dobbs did not directly undermine older precedents protecting other aspects of individual privacy from invasion, such as the right of bodily integrity.

What Dobbs did was reject the idea that the Constitution allows the courts to recognize “fundamental” liberties beyond those explicit in the text or deeply rooted in the nation’s history. It left standing, at least for now, other privacy decisions that recognize fundamental rights to contraception and of gay people to sexual intimacy and marriage.

And, if it rejects Justice Thomas’ urging that those precedents too be overturned, it may leave in place the roots for a broader understanding of constitutional privacy by a future Supreme Court.

The same scenario might apply to what the majority considered that other sort of privacy. That an alleged assassin, said to be enraged by the leaked draft opinion in Dobbs, turned up outside the home of Justice Kavanaugh weeks later is likely only to heighten the justices’ appreciation for the value of informational privacy, including what others would consider a mundane matter: one’s home address.

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