A Constitutional Right to Privacy

In my recent blog post, The Leak, I wrote about Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___, the SCOTUS case that overturned Roe v. Wade.  While this unhappy decision did not rest solely on the controversial notion that there is no Constitutional right to privacy, Justice Clarence Thomas did go out of his way to suggest that other SCOTUS decisions that relied on privacy could be rolled back based on that interpretation of the law.  That is what I want to talk about in this essay: the Constitutional right to privacy, does it exist in the law?

But what is a right to privacy?  It is a right to be and act without governmental intrusion, coercion or prohibition in one’s private affairs.

First, Justice Antonin Scalia has often argued with Justice Thomas that there is no Constitutional right to privacy.  However, it takes little effort to find articles that demonstrate that his stance was not as simple-minded as is Justice Thomas’s.  Here is one and here is another.

Second, the 9th Amendment to the U.S. Constitution reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  In other words, the fact that neither “privacy” nor “abortion” are mentioned by name within the Constitution has NO bearing whatever on whether either may be Constitutionally protected rights.  Indeed, one is tempted to dare someone to make an exhaustive list of unenumerated rights not mentioned in the Constitution (the right to choose between pizza or tacos comes to mind).  While it is abundantly clear that overturning Roe v Wade rested solely on a religious conviction that a unique human soul is created at the moment of conception (a thought process prohibited by the Constitution’s First Amendment’s “establishment clause”), not even all Christians subscribe to that belief; indeed, half of America’s Roman Catholics are Pro-Choice (I do not cite this factoid as there are dozens if not hundreds of surveys on this question that show this; pick your own).

Third, Justice Louis D Brandeis famously co-authored a Harvard Law Review article The Right to Privacy in which he argues for the Constitutional Right of Privacy.  After Chief Justice John Marshall, few Justices have been more influential or honored by their peers than Justice Brandeis.  Putting Justice Thomas in the ring against Justice Brandeis is an egregiously unfair fight, even with Scalia as his second.  Or Justice Egregious Alito, for that matter.

Fourth, the 4th Amendment (unreasonable searches and seizures) and the 5th (“nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”) both seem based on an unspoken right to privacy.  Indeed, the notion of liberty seems to rest squarely on a right to privacy.

Imagine if you can, a new nation conceived in liberty – without a right to privacy.  It’s impossible.  I assert that this is the reason that this simple word does not appear even one time in the Constitution.  Privacy is SO foundational to liberty that no one thought to mention the word.  The Bill of Rights reeks of protections against government over-reach when we are dancing in the public square.  But fails to declare unambiguously any protections for what we may do in the privacy of our own homes.  It is THAT foundational.

No doubt, deciding Roe on privacy grounds may have been a stretch.  “You can’t murder a person who is visiting you in the privacy of your own home.”  That is, a murder done in private is not a protected private act.  But the object of an abortion is not a person, it is not a human being yet, it is not an infant or a child, it may not yet even be an embryo or a fetus.  Pro-Life forces call it an unborn, sort of like calling Zombies the undead.

Finally, I admit that this piece is deliberately narrow in its scope.  For example, I only discuss privacy from governmental power, I have steered clear of expanding my piece to privacy from Google or Meta/Facebook over-reach.  Making up for that, I recommend this piece.