The Right To Privacy: The Right To Choose / Sexual Freedom

Over the years, one area that held a continual interest to me is the right of a woman [or teenage girl]1 to choose an abortion.2 The complexity of the issue interests me, how it touches upon so many areas basic to our liberty. This is the purpose of this essay, including showing how it is connected to broader matters of sexual freedom and freedom in general. I am aware of the sensitive nature of the subject, as shown by the inclusion of the above quotation, but such sensitivity only furthers my ultimate conclusions, as I hope to show below. This includes showing why opposition to one or more of the areas touched upon does not necessarily mean that they lack constitutional protection.3 And, if one feel the courts are not the proper way to protect these fundamental rights, this essay is a guide to whatever institution with the proper authority and means to do so.

The right to choose an abortion is generally described as to be a component of the constitutional right to privacy. What exactly does this term mean? Constitutionally (as well as in general), 'privacy' involves "two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions," Whalen v Roe. This nuanced use of the word 'privacy' has led to some misunderstandings, since we are not only dealing with keeping things out of the public view, such as what happens behind closed doors or is on some file. The right to privacy includes the right to make certain decisions with both private and public components, such as whom we marry or how we raise our children. Perhaps, terms like "autonomy" or "bodily integrity" might be more fitting in certain cases, but "privacy" does have the merit of being better known and understood by the general public. No matter what words we use, all aspects of these freedoms are fundamental for us to enjoy true liberty.

The first aspect of privacy is clearly protected from governmental invasion by the Constitution, especially by the Fourth Amendment, which concerns itself with 'unreasonable searches and seizures' of persons, homes, and personal effects (private items such as papers and more broadly various types of information) and warrant requirements. It is to be remembered, however, that the amendment clearly implies that certain searches and seizures are 'unreasonable' even if a warrant is supplied. Also, the words imply a special protection is given to both control of one's body and the privacy of the home. Likewise, the 'Due Process Clause' of the Fifth and Fourteenth Amendments also concerns itself with this aspect of privacy, namely, the requirement that the government does not 'deprive' a person's life, liberty or property4 unfairly.

The words 'due process' literally concerns fair procedures such as fair trials, but have developed through the years to mean more. For more than a hundred years, the term has grown to apply to certain basic freedoms seen as fundamental to our very liberty or freedom. Furthermore, the Ninth Amendment reminds us that these freedoms need not be in so many words listed in the Constitution, especially since there are too many to easily list, and they develop over time. If we take all these protections together, they compose a private sphere into which the government must not enter without a very good reason, if at all in certain situations. Thus, the protection of "the individual interest in avoiding disclosure of personal matters."

The second aspect of privacy is generally felt to be as important (or more so given how the other area is often used by those accused of a crime), but is not so clearly dealt with by the Constitution. For instance, we generally block the government from entering your home, but can it still block you from say living with a member of the opposite sex without being married in that home? The government need not enter the home to prove and punish such an action, though other privacy protections make it harder for them to do so. It might be said the Constitution needs not in so many words protect various private acts because no one would think the government would interfere, but hoping the state will do so leaves something to be desired, especially given that many people do not like some of these activities. Just ask those who live in states where the aforementioned act is illegal. [Such acts, along with homosexual sodomy, is probably protected by Lawrence v. Texas (2003), handed down after this essay was originally written.] Not to worry -- this second aspect of privacy is not so easily found in the Constitution, but only if one looks at it in quite a narrow way, which thankfully is not how it is done these days by those who are in charge of such things. A more nuanced look at the Constitution will show that protecting the "independence in making certain kinds of important decisions" is basic to not only freedom overall, but to the freedoms explicitly listed in the Constitution.

The place in the Constitution where the courts generally look to protect the right of privacy, especially the second form, is the Due Process Clause. As noted, due process has been understood to include the protection of basic liberties that are held to be so fundamental as to warrant special protection from governmental invasions. For instance, the Constitution does not in so many words protect the right to associate (e.g. join the Democratic party), to have the government pay for a lawyer if you are accused of a crime and cannot pay, or prevent the government from putting you in jail or committing you to a mental institution unless some degree of guilt or threat of harm to the community is shown. All, however, have been held to be protected by the due process of law. Our job is to show how the Constitution protects the right to privacy, just like it protects these rights.

There are various ways to show or determine how the Due Process Clause protects freedom. The easiest is to point to a right that is listed in the Constitution. For instance, the right to free speech is found in the First Amendment, and is so basic to "liberty" that it has been determined that the government (state and federal) cannot consider depriving it to be a just act or "due process of law." A related technique is a bit more indirect, but often as important, especially given the open ended and vague general protections found in the Constitution. The technique being to determine if something is so necessary to fulfill a right (such as the government paying for a lawyer when one is accused of a crime, if the person cannot afford one). Though privacy comes under the umbrella of many explicit commands of the Constitution (e.g. the sanctity of the confessional), this implicit component is where it gets much of its bite (and controversy).

Nonetheless, freedom (from slavery, unreasonable search or seizure, inequality, and the deprivation of "life, liberty and the pursuit of happiness" itself) is just too important to be read narrowly. The Declaration of Independence held that "to secure these rights, governments are instituted among men." Our Constitution is the charter put in place to establish such a government, included in it are protections of basic freedoms that are not to be read stingily. Some felt such broad rights of freedom could not be adequately protected by the Constitution or the Bill of Rights. In answer to this problem, one James Madison admitted was one of the strongest of the opponents, he pointed to the Ninth Amendment. The amendment tells the government a listing of some rights in the Constitution should not be read to mean it could "deny or disparage others retained by the people." Surely, a broad reading of those already found there is the least we can expect.

It is my belief that a careful interpretation of the rights that are clearly listed in the Constitution is enough to uphold our right to privacy. The broader understanding of 'due process' as well as the Ninth Amendment (and maybe a couple other means5) helps us in that it justifies a broader understanding of constitutional protections such as those found in the First Amendment -- for if there are freedoms not expressly listed, those that are surely should be fully honored, since they are the first place to look to discover such unlisted freedoms. Furthermore, if we fail to show the connection of the right to privacy to constitutional rights more clearly present, we tend to run into problems from those who oppose some aspect of that right and use the absence of the words 'right to privacy' from the Constitution as proof of why we should not honor it. The same cannot be so easily be done for freedom of speech, religion, equality, and the like. This is especially the case if the right is not directly a consistent part of our tradition, or the tradition we like to talk about, such as legal abortion.

The Bill of Rights begins with a protection of religious freedom, surely held by many as the most important right for one to have. The breadth of this freedom is debated, but clearly does not only include those who believe in God. The development of conscientious objector status from members of traditional churches such as Quakers to a broader protection for those who do not believe in the traditional concept of God shows this to be the case. As with exemptions from the draft (based on opposition of war / killing), 'religion' itself must be seen broadly as a right of conscience on the ultimate questions of human existence that form the basis of Christianity and other monotheistic religions. One range of questions clearly of religious significance, and one greatly open to debate at that, are choices over the meaning and sanctity of human life, including when to have an abortion:

The complexity and difference of opinion involved here is key. Opposition to abortion is largely based on a belief that killing the unborn is immoral, though such opposition tends not to be absolute. We must also remember that those who make the choice to have an abortion are usually also making a comparable moral choice -- the belief it is not right to bring a fetus to term for any number of reasons is a religious choice as well, and the parents involved often speak of it in such terms. For some, an abortion is the only moral choice to make given the circumstances.** The range of debate on this matter is as complex as it is divisive, which is exactly the area where the government should not choose sides -- giving the people the right to choose where the right path is a matter of moral debate is the very purpose of religious freedom is a diverse nation such as ours. The presence of the unborn child makes this a difficult decision, much more than say homosexuality, which is also opposed largely on moral concerns much less 'harmful.'

The unborn child definitely complicates the moral and legal choices involved. Nonetheless, the unborn child is not and has never been in this country seen as person (as compared to fully or even almost [i.e. late term fetuses] formed humans, which clearly [or arguably almost] are) with constitutional rights, though some feel they should be. After all, not only are they not counted for such things as how to determine if a member of Congress is old enough to serve (largely since we as a society do not consider the unborn part of it, unlike some cultures who would count the time before birth), but a clear majority feel they can be aborted in certain narrow situations such as rape or severe disability. Therefore, it is quite questionable if the rights of women (clearly persons) should be burdened to protect the unborn based on disputed moral beliefs. It is to be noted that this discussion is easily adapted to the protection of the use of contraceptives, some of which interfere with some persons' view of the sanctity of life.

I feel religious freedom is at the core of many rights of privacy, but other First Amendment freedoms are involved as well. The freedom of expression is clearly key in learning about, informing others about and in general supporting matters involved here, including matters of a sexual matter some might feel to be offensive. The Internet itself is of special relevance in that it supplies a great deal of information and allows many who would not get to know each other a chance to talk and learn about each other. The freedom of expression also includes the freedom to establish one's personality and individuality (both in areas in which we wish to make public and those we may not), one area where privacy is especially important both in the formation and practice of whom we are as people. Likewise, if the government allows or pays for in some way one form of expression, it is wrong for it to bar others -- this includes such things as allowing gay parades (a form of assembly) or blocking things of a sexual matter from being in advertisements or publicly funded performances.* Finally, petitioning the government to support the rights of privacy via legislation and the like is key, especially if the courts do not or are not the best ones able to uphold such rights.

The First Amendment as a whole, as well as other parts of the Constitution, has been read to include a right to associate, to join together with one or more people for a variety of reasons. Society as a whole can be seen as one big association, but the protection of freedom of conscience and expression as well as the basic development of a person into a member of society all clearly involves some form of association be it religious, political, or social (and economic as well). Furthermore, privacy is often an important part of such associations, the privacy both to make their own decisions, and to keep others away while they make them. This can be seen in the confessional, in the doctor's office, but perhaps most importantly and universally in the family, including power over its formation.

Early constitutional protection of what was later defined as a right to privacy included protection of the right to raise children via deciding where to send him/her to school (private over public) or whether to have them at all (contraception use and freedom from sterilization), and later whether to marry as a first step to have a family. We can protect the family6 (broadly defined) as a basic right of freedom and liberty, but it is also a key right of association as well. Furthermore, the choice of whether or not to have a child (e.g. whether or not to abort, adopt, get pregnant naturally or artificially, etc.) fits in neatly in such a right. In fact, it is in matters related to family life where privacy has been most protected (and accepted) by the courts. This is not surprising given the importance to and placed in family life by churches, schools, and the government overall. The family is where citizens are made and where they live and act (literally and figurately) on a day-to-day basis. A constitutional protection of its sanctity and privacy is therefore both necessary and proper for both its own good and the good for society in general.

The ultimate purpose of the Fourth (and parts of the Fifth) Amendment is the protection of the sanctity of our persons, home, and personal property overall. If there was one thing that many of the Framers were interested in, it was the protection of property. Violations of the right to own property, including doing with it as one wished (within limits) was looked at very severely. As a British judge in a key precedent of the Fourth Amendment stated: "The great end for which men entered into society was to secure their property." The case involved criticism of the government, quite a serious offense, but so were colonist opposition to Great Britain’s restrictive trade laws. As with current drug laws, there was a lot of opposition, as well as heavy-handed tactics by the government to enforce frequently breached laws, including general warrants that gave minor officials great power to search homes.

"Property" was often used widely to include all things we own of value, including our own bodies. "The right to privacy" was forcibly defended in an early law review article that argued that a sphere of privacy in one's personal life could be considered as an aspect of property. For instance, the home includes a degree of privacy that increases the value of the property. Also, the use of one's image for commercial gain or even by the press served the ends of others without compensation for the (in part physical and spiritual) trouble. We have the right to have control over such things without others, including the state, interfering in any number of ways.

"Property" continues to grow in meaning, as seen by the rising concern of free flow of private information via computer files, seen as a form of intellectual property. Despite how broadly we define the term, the Fourth and Fifth Amendments also protects undue violations of our bodies, via search and seizure guidelines as well as preventing violations of liberty (as well as property) without due process of law. Further protections include limits on quartering of government troops in private homes (see Third Amendment), as well quite arguably some right to bear arms (Second Amendment). Self-defense is clearly one important aspect of privacy.

The right to be free from unreasonable search and seizure is not only limited to requiring a warrant before an arrest or search. It is expressed in a way that points to a more general right to be free from arbitrary invasion of privacy from the state. We have not truly protected the Fourth Amendment if the state is allowed to in effect seize a woman's body by forcing her to have a child. Furthermore, one is hard pressed to consider this "taking" of her body and ability to make certain life choices for what is basically public use (either as protection of unborn life or benefit to society in the new life to be born) to have been properly compensated, if any truly can be supplied. Other matters dealing with one's body and the privacy of one's own home also raise such concerns.

The reverse, as shown by opposition to pressure in China and elsewhere for women to abort, is true too. Nonetheless, some inconsistently say the government cannot force abortions, but can force women not to have abortions -- the burden on women's body, health and general well being7 is comparable. In either case, the right of the government to control a woman's (or man's in other comparable intimate ways such as sterilization or castration) body in unique and personal aspects for disputed moral reasons or for 'her own good' is clearly 'unreasonable.'

We need now briefly address some other constitutional rights involved before we jump to the third key area of concern. The right against self-incrimination, the famous 'right to remain silent,' can also be seen as a privacy right, and arises when making private things public would inflict a serious burden on a person. It is to be remembered that protection of private information without the need to commit perjury (at first mainly in areas of religion) was a central motivation behind this constitutional right. This arises less often in the abortion context, unless we include minors and women who are afraid to tell their spouses and the general right of women to keep this information secret (computerization of medical records only makes this harder), but does come up more often in cases such as homosexuality and other disfavored private relationships.

Criminalizing privacy rights (disputes in this area, such as the terms of divorce, are usually8 best left to the private and civil arena, the latter partly dealt by the Seventh Amendment as well as the Due Process Clause) also is a clear violation of the bar against 'cruel and unusual punishments,' since we should not criminalize basic rights. Furthermore, even things most of us think are wrong in some cases, including adultery (and for some sodomy, sex out of marriage, etc), is best not criminalized for various reason (not the least being many feel they are private matters that often are not a problem). We touched upon the Ninth Amendment, but the Tenth Amendment is relevant as well. Not only does its words and spirit take many things out of the hands of the federal government, but it does not only speak of the powers states have. "The people" also have powers as well, powers that in some cases no government has right to remove.9

Let us now jump to the Thirteenth and Fourteenth Amendments since suits against states and presidential elections (i.e. the Eleventh and Twelfth Amendments) do not really concern us here, though the inability to sue the state in certain cases just might. The Thirteenth Amendment's prohibition of slavery, both by the government and by private individuals is clearly at issue here in that we are dealing with a central component of freedom, the lack of which was surely at the core of the evils of slavery, namely the inability to control one's own body and family. Slavery in this country included the power over whom you married (slavery marriages actually were not considered binding under state law), what happened to your children (families were often split apart), and who you were allowed to have intimate relations with (surely not white/black unions, and let's not go into rapes).

Freedom means having control over such things, including when to have children, even if society thinks differently. A woman's body is her own, not the state's, and the state should not have power over it in such a way. The freedom suggested by this amendment can be read more broadly to supply us with the right to make other choices on what to do with our body, but (except perhaps for matters of health and the like), few other areas are clearly protected by it than the one at issue here. If freedom from slavery includes the ability not to be forced to work against our will, it surely includes matters of this nature.

The rights of freedom comes into play here, suggesting a companion reason for finding the right to choose an abortion a constitutional right. A little used clause protecting the "privileges and immunities" of citizens was probably meant to be a prime Fourteenth Amendment method of protecting liberty. If controlling one's body and health in regards to having or not having a child (even more so than other matters of sexuality) is not integral to liberty, what is? Finally, as with other liberties phrased in such a way that they appear not to apply to noncitizens, the Equal Protection and Due Process Clauses protect persons as well as citizens. There does not seem a good and proper reason to unequally deprive noncitizens of this particular right.

The Declaration of Independence speaks of equality, but actual equality took a lot longer, and we still are in the process of trying to truly honor it. The Fourteenth Amendment, however, was a major milestone in that it expressly protected equal protection, and not just for newly freed slaves. The true honoring of equality would uphold privacy in many ways, partly since those areas of privacy generally not upheld are comparable to those that are. For instance, the federal government pays for childbirth in various cases when a woman is unable to pay, but only does so in the case for abortion in a narrow number of cases. The explanation that people are opposed to abortion is flimsy. Many are opposed to burdening the choice of abortion on equal grounds that the moral choice should be up to the woman. The slowly developing equal rights of homosexuals and other disfavored sexual minorities also show the importance of equal protection in this area. Equal protection forces us to apply constitutional rights consistently, even to protect groups we dislike.

Equality also can be burdened by denying various groups the right to make choices that help them to have a more equal stake in the world. Feminists have taken up the struggle for abortion rights largely because they feel it is key for them to have an equal ability to control their bodies and make life choices that having children would complicate. It is true that not having to make such a choice in the first place would often be best (or have more help from men), but it will be a while before they need not (or enjoy true equality in child rearing) and individual freedom warrants allowing each woman to make her own choice in this area.10 The Nineteenth Amendment gave women the right to vote, the Fourteenth has only recently been seen as giving them a more broad equal place in the world. The same applies to groups such as the poor and minors, whom pregnancy disproportionately burdens, groups also extremely helped by contraceptives as well. Equal access to the Internet, school/college clubs, and so on also is very important to protect the rights of many groups (as diverse as fundamentalist groups to NORML, who support legalizing marijuana) who have a right to make certain private choices we might dislike.

Finally, it is to be remembered that the unborn are not legal persons (perhaps full moral persons, a matter of religious debate), so depriving women of the right to choose to abort would place the right of quasi-persons over persons, which is an equal protection burden in itself. If a fetus was a person, suggesting that it was appropriate to abort it when it is a result of rape would be a tad outrageous. Also, even if the woman's life is in danger, would one kill an infant that is born? What if she has a multiple birth? Furthermore, even if a fetus has various rights (a concept that is reasonable up to a point, especially if one knows she or he will be born eventually), who protects them? Not only is the mother most directly affected, but a choice to abort might arguably be one in the best interests of the fetus. It is outrageous to suggest that we all would want to be born given the choice, since if we were not, how would we know? We did not exist as a full person yet. The parents would seem to be the best people to make this decision, while the special burdens of the mother (as well as the special relationship present) gives her the upper hand of the two.

Equality sometimes is seen a narrow right in that one can be equally deprived of certain liberties without the overall principle of equality being violated. Lawrence v. Texas suggested that connection between equality and a broader substantive liberty interest: ”Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. … When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” The same holds true in the abortion context as seen by the complex cultural assumptions furthered by a society that removes control from women alone.