It’s Not About Abortion. It’s About Privacy
When Bill Clinton was seeking the presidency in 1992 as a “New Democrat,” the manta of his campaign was “It’s the economy, stupid.” And I wanted to holler, “No, it isn’t, Bill. It’s about justice, it’s about equality, it’s about peace, stupid!”
And today I find myself in a similar position, as the media focuses on the implications of the retirement of Justice Kennedy from the Supreme Court in a way that makes it seem that the most important issue is the status of Roe v. Wade. And I want to holler, “No, it isn’t about abortion. It’s about the right of privacy!”
Of course, the abortion question – or the question of a woman’s rights to life, liberty, and the pursuit of happiness, as I like to frame it – is implicated in the right of privacy, as the Supreme Court made clear in Griswold v. Connecticut where it decided that married couples – and only married couples in that case – could not be forbidden under penalty of law from procuring or using artificial means of contraception to prevent pregnancies. The law in question was a Connecticut law that made it a criminal offense to buy, procure, distribute, or use means of artificial contraception. Finding that the Constitution implicitly embraced a right of privacy, the Supreme Court held that such laws were unconstitutional invasions of marital privacy. Later in Eisenstadt v.Baird, the Court extended this right to adult individuals whether married or not.
Why is the right of privacy the most important issue here? Precisely because if there is no right of privacy protected by the Constitution then the power of the national government to invade our lives is virtually limitless. Without a right of privacy, the Supreme Court was correct when it decided in Buck v. Bell that the commonwealth of Virginia could, constitutionally, forcibly sterilize those who are deemed by the state to be “socially incompetent.” Without a right of privacy, states would be free to also sterilize, by means of chemical or physical castration, those who are deemed by the state to be “habitual offenders.” Without a right of privacy, a state could, obviously, force a woman to undergo an abortion if the state deemed that the life she was carrying would be “an undue burden” on the state, say, as determined by insurance companies. And of course, without a right of privacy, a state or the national government could, constitutionally, force gays and lesbians to undergo counseling and even more to “reverse” their “condition” if the government deemed that “condition” to be “an undue burden” on society. A Clockwork Orange here we come!
In other words, without a right of privacy, there are virtually no limits to what the government could do in invading our bodies and how we enjoy them. And if a government can invade your body in these ways, then limited government is a chimera. For government to be limited, there must be some things that government cannot legitimately do, no matter how worthwhile or socially beneficial those things might appear to be.
So when Trump and the Republicans – and others – argue that Roe v. Wade should overturned, don’t be fooled by their rhetoric. They are not only after abortion rights. They are also after the right of privacy, which means that they are after almost all of our rights. They are seeking to create a government that has unlimited power to invade our lives, even or especially in our most private, our most intimate endeavors. And a society in which intimacy only exists with the permission of the government is indistinguishable from a brave new world.