The Overturning of Roe v. Wade Undermines the Right to Privacy

The effect of the United States Supreme Court’s overturning of Roe v. Wade is not limited to the right to abortion and bodily autonomy.  Its consequences, as some have worried, are not constrained to the right to contraception, the legality of same-sex sexual activity, or the right of gay couples to marry.  It flatly undermines the totality of the implied right to privacy. 

The majority opinion in Dobbs v, Jackson Women’s Health Organization, which overruled Roe v. Wade last Friday June 24, 2022, applied the 14th Amendment substantive due process test – whether the right is deeply rooted in the Nation’s history and tradition – and held the 14th Amendment does not protect the right to abortion.  In a previous blog, I wrote the values that make up the right to privacy are “deeply rooted in [our] history and tradition.”  The Writs of Assistance and the Quartering Acts enabled invasions by the British of American colonists’ most secluded space – their homes where they had the autonomy to make their own decisions and where their most private decisions were made.  These values, which are fundamental to the right to privacy, are encompassed in the First, Third, and Fourth Amendments, and the expression of these values in those Amendments means that under the substantive due process test, the 14th Amendment protects the right to privacy.

By overruling Roe v. Wade, Dobbs calls into question the endurability of the right to privacy.  The Dobbs majority opinion says that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  It goes on to state that the right to an abortion cannot be justified by a purported analogy to the rights recognized in other cases or by appeals to a broader right to autonomy.  But Justice Thomas in his concurrence says the Supreme Court in future cases should reconsider all of its substantive due process precedents and should overrule the demonstrably erroneous ones.  In their dissent, Justices Breyer, Sotomayor, and Kagan point out that the rationale for the majority decision – the substantive due process test – provides no way to distinguish between the right to choose an abortion and a range of other rights, and therefore Dobbs threatens – indeed undermines – any number of other constitutional rights.

Roe v. Wade held that the right to an abortion is encompassed within the right to privacy.  Only a small number of the Supreme Court’s privacy cases concern “decisional privacy” or the privacy rights the Court has found implied in the Constitution that protect the rights of adults to make decisions about activities such as reproduction and contraception.  Cate   Excluding Fourth Amendment search and seizure cases and Fifth Amendment self-incrimination cases, the other categorizable Supreme Court privacy cases are First Amendment and freedom of expression and association issues.  Id. Thus, by utilizing the substantive due process test to strike down the right to an abortion, as the dissenting opinion in Dobbs points out, the majority is undermining the implied right to privacy.

The erosion of the right to privacy is alarming in an observational age.   In 2013, Time described this observational age as video cameras peering constantly from lamp poles and storefronts, satellites and drones floating hawkeyed through the sky, smartphones relaying a dizzying barrage of information about their owners to sentinel towers dotting cities and punctuating farm land, license-plate cameras and fast-pass lanes tracking the movements of cars, internet service providers storing searches containing personal data, retailers scanning, remembering and analyzing purchases by customers, smart TVs knowing what programs individuals are  watching, and smart meters knowing how much electricity, water and heat individuals are using.

In the abortion context, this observational technology could become even more invasive.  For example, the Texas Heartbeat Act is enforced exclusively through private civil actions brought against any person who induces an abortion or aids or abets the inducement of an abortion (including paying for or reimbursing the costs of an abortion and awarding statutory damages in an amount not less than $10,000).  Will Texas women seeking abortions be tracked through license-plate cameras and fast-pass lanes when traveling from Texas to Mexico, through their internet searches for out-of-state abortion providers, through their orders and deliveries of abortion pills, and through data in their period tracker apps?

Other states have tried to mimic the Texas law.  For example, Idaho passed Senate Bill 1309 which gives family members of a pregnant woman the right to sue if a medical professional performs an abortion after cardiac activity is detected (this law has been stayed by the Idaho Supreme Court).  With the Dobbs decision, most likely more Texas-like laws will be passed, raising the specter of invasive consequences for even more women.

Leaving regulation of personal rights to the states in an observational age is illogical.  Data on the internet knows no jurisdictional boundaries.  Missouri proposed legislation would allow private citizens to sue anyone who helps a Missouri resident have an abortion – from the out-of-state physician to whomever helps transport a person across state lines to a clinic.  Short of tailing any woman who would be likely to obtain an abortion, observational devices – like geotagging within social media posts, utilizing facial recognition to identify women at out state abortion clinics, or even just using my “Find My iPhone”-esque location tracking – would be used to determine whether a woman had an out-of-state abortion.  But this problem is not limited to abortions.  What if it were illegal to gamble or drink under the age of 21 in a state and the state made it illegal to go out-of-state to gamble or drink?   What if it is illegal to purchase a gun in one state and the state makes it illegal to purchase a gun in a state where it is legal to do so?  The Biden Administration stated recently that laws making it illegal to go out of state to do what is legal in another state interfere with interstate commerce.  The prospect of an “interstate commerce case” brought by the federal government does not stop the chilling effect of these state laws.

In an observational age, the right to privacy is more important than ever.  Instead of shoring up the right to privacy at this most important time, the Supreme Court is eroding it.  Where the majority of society disagree with the ruling of the Supreme Court, it is up to Congress to enact legislation.  The observational age has made privacy legislation long overdue in the United States.  Perhaps the anticipated ruling in Dobbs makes it no surprise that H.R. 8152, the draft American Data Privacy and Protection Act, is moving swiftly through Congress.  Only time will tell whether H.R. 8152 becomes law, but it is clear that the right to privacy needs protection, and with the makeup of this Supreme Court, Congress is the only branch of the U.S. government that can provide this protection.