Thursday, January 22, 2009

Right to privacy

From the Religion News Service blog:
The White House has just released a statement from Obama on Roe v. Wade, the Supreme Court decision that legalized abortion 36 years ago today.

Here it is:
Statement of President Obama on the 36th Anniversary of Roe v. Wade

On the 36th anniversary of Roe v. Wade, we are reminded that this decision not only protects women's health and reproductive freedom, but stands for a broader principle: that government should not intrude on our most private family matters. I remain committed to protecting a woman's right to choose.

While this is a sensitive and often divisive issue, no matter what our views, we are united in our determination to prevent unintended pregnancies, reduce the need for abortion, and support women and families in the choices they make. To accomplish these goals, we must work to find common ground to expand access to affordable contraception, accurate health information, and preventative services.

On this anniversary, we must also recommit ourselves more broadly to ensuring that our daughters have the same rights and opportunities as our sons: the chance to attain a world-class education; to have fulfilling careers in any industry; to be treated fairly and paid equally for their work; and to have no limits on their dreams. That is what I want for women everywhere.
At least on the level of rhetoric, the idea of a right to privacy seems to be central to the liberal argument for abortion. This is certainly a right characteristically championed by liberals, and has come up more recently in debate over the Bush administration's expanded intelligence programs concerning terrorism suspects. Legally, this right provided the core justification for the court's decision on Roe v. Wade. From the case summary via FindLaw:
"State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy."
My own law professor recently pointed out that there is no language in the Constitution explicitly protecting a "right to privacy." The Due Process Clause of the Fourteenth Amendment quotes thus:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United Sates; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The right may be seen as implicit, perhaps included in the broad category of "liberty." But the fact that it is not expressly present is a difficulty.

What may be a more helpful observation is that President Obama's statement has a theme: women's rights. The issue of abortion is very much bound up with gender issues. What intrigues me most is the final paragraph, which seems to indicate that a woman's ability to choose abortion is a tool to equalize the opportunities of women with men. The implied statement is that unwanted pregnancies are a hindrance to those opportunities. Certainly they are; yet as the quote from Senator Edward Kennedy in 1971 in an earlier post indicated, such pregnancies are fundamentally the result of a free choice.

It is not the government's job to protect us from the consequences of our own free and individual choices, is it? Or is the problem simply that the biological (and perhaps social) facts weigh the consequences of unwanted pregnancies more heavily on women than on men?

Religion News Service Blog - "Obama on Roe v. Wade", FindLaw - Roe v. Wade, 410 U.S. 113 (1973)


  1. Of course "the right to privacy" was indeed the basis of Roe v Wade. But a prior decision had to be made about whether the unborn human was a "person." Privacy rights don't trump whether a person has a right to live and liberals have always been scrupulous about their commitment to protects the weak and helpless. So, in order to justify their support for this "choice" they had to de-humanize the unborn in much the same way slaves were made "un-persons."

    Today at Bench Memo, Ed Whelan reproduced his testimony before Congress in 2005: "Why Roe v. Wade Needs to be Overturned".

  2. By the way, I look forward to how our new President implements his commitment that "government should not intrude on our most private family matters." Community organizers and social workers tend to mess around in "family matters" rather a lot.


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