Right Of Privacy - Maybe Not So Much

Katie Couric sat down with Sarah Palin and Joe Biden and asked them their thoughts on Roe v. Wade. Couric asked both Palin and Biden if they beleive that the Constitution grants an explicit right of privacy to American citizens. Both Palin and Biden answered that Constitution grants a right to privacy, but Palin qualified her answer saying that the right to privacy is actually a "States' Rights" issue. ("States' rights" refers to the concept that states possess certain rights and political powers over which the federal government should have no authority.)

The question of whether the Constitution protects privacy is controversial. Many conservatives, who subscribe to "originalist" or "constructionist" philosophy of Constitutional Law, argue that no such general right of privacy exists. Constructionists argue that because the U.S. Constitution nowhere includes an exact phrase, "Congress shall make no law respecting the people's right to privacy," the right is not granted or protected by the U.S. Constitution. Constructionist Conservatives call this philosophy of Constitutional Law "strict adherence to the Constitution."

The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, contraception and termination of medical treatment. Polls show most Americans support this broader "right to privacy" reading of the Constitution.

Griswold v. Connecticut is the landmark case in which the Chief Justice Warren Supreme Court in 1965 struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples. Different justifications were offered for the conclusion, ranging from Court's opinion by Justice Douglas that saw the "penumbras" and "emanations" of various Bill of Rights guarantees as creating "a zone of privacy," to Justice Goldberg's partial reliance on the Ninth Amendment's reference to "other rights retained by the people," to Justice Harlan's decision arguing that the Fourteenth Amendment's liberty clause forbade the state from engaging in conduct (such as search of marital bedrooms for evidence of illicit contraceptives) that was inconsistent with a government based "on the concept of ordered liberty."

Citing the Griswold v. Connecticut decision and justifications of privacy the Justice Burger Court extended the right of privacy to include a woman's right to have an abortion in its 1972 Roe v. Wade decision.

On today's court Chief Justice John Roberts and Justices Alito, Scalia and Thomas, who all subscribe to the "constructionist" philosophy of Constitutional Law, are not inclined to protect privacy beyond those cases raising claims based on explicit Bill of Rights guarantees. In other words four out the nine justices sitting on the Supreme Court do not recognize the "implied right to privacy" that their Supreme Court predecessors have recognized.

The next President will appoint at least one and possibly three Justices to the Supreme Court. John McCain has repeatedly said that he will appoint more Constructionist Justices just like Roberts, Alito and Scalia. When asked, "which of the Supreme Court Justices, would you not have nominated," McCain answered, "Justices Stevens, Souter, Ginsburg, and Breyer;" All the Justices who have upheld the "right of privacy" principal.

With five to seven "constructionist" Justices sitting on the Supreme Court Americans will very likely find they no longer have a "right to privacy." This will likely not only reverse the Court's 1972 Roe v. Wade ruling, but also the 1965 Griswold v. Connecticut right to privacy in contraception use ruling and other Supreme Court rulings based on an "implied" right of privacy. The other right of privacy rulings encompass decisions about child rearing, procreation, marriage, contraception and the termination of medical treatment, such as in the Terry Schiavo case. Even the Court's Pierce v. Society of Sisters right to privacy ruling, which serves as the foundation for the right to home school children, could be reversed.

As reported in the Wall Street Journal OnLine, "The Bush Administration's Department of Health and Human Services has written a draft regulation that defines most birth-control pills and intrauterine devices as abortion because they work by preventing fertilized eggs from implanting in the uterus." Evangelical Republicans define a fertilized egg, from the "moment of conception," as human life with full civil rights. Any human interruption to the natural processes that might allow the fertilized egg to implant in the uterus and develop into a full term birth is murder.

Palin and McCain should be asked by reporters if they support the Bush administration's attempt to define common contraception, that prevents fertilized eggs from implanting in the uterus, as a form of abortion. They further should be specifically queried if they believe that married couples should have a "right of privacy" to use birth-control pills and intrauterine devices that prevent fertilized eggs from implanting in the uterus.

If the 1965 Griswold v. Connecticut right to privacy ruling were to be overturned, it is conceivable that the common birth control pill and IUD device in use today could eventually be ruled a type of abortion by a very right leaning "Constructionist" Supreme Court created by a President John McCain.

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