Right to Privacy?

In the 1973 decision Roe v. Wade, the Supreme Court invoked the concept of a “right to privacy” in order to rule that the practice of abortion was indeed constitutional. One may be forgiven for wondering from where this concept was derived. The word privacy never appears in the U.S. Constitution, the Bill of Rights or any subsequent amendment.

Defenders of the “right to privacy” claim that it is implied in the 4th Amendment, the 5th Amendment, the 9th Amendment, and the 14th Amendment. None of these contain any implication that can be said to support any constitutionality of abortion.

The “relevant” section of the 5th Amendment deals with “due process”. It states that “no person shall be…deprived of life, liberty or property without due process of law.” “Due process” has been since used to denote the preservation of the rights that we, citizens of the British colonies in America, had under British law. Under strict construction interpretation, the fact is, that concept is never stated explicitly. If it were, one would have to assume that a right to privacy defined in such a way that is relevant to abortion existed. That is a questionable assumption, since abortion – at least as we understand it – did not exist in 18th century England.

Contextually and literally, the term “due process” means that advance notice of what the law requires must be given for the enforcement of that law to be in fact legal. It also follows that advance notice is necessary to make legal the subsequent deprivation of life, liberty or property that comes as a consequential punishment for the breaking of the law. If indeed unborn babies are alive (something I am not debating here), then for them to be deprived of life legally, they must be given advance notice of the law that they are breaking, the subsequent penalty for which is deprivation of life. If the 5th Amendment does indeed apply to abortion, this, in my view, is how.

The 9th Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment is invoked in order to argue that the fact that a right is not enumerated does not mean that it does not exist. Therefore, just because a right to privacy has never been articulated, it does not mean there is not one. But the weakness of this argument is this: saying that a right does not necessarily “not exist” is not the same as saying it does exist. It simply does not preclude the possibility of its existence.

The 14th Amendment is said to be relevant in two ways. The first is the use of the phrase “equal protection”. This is the idea that the government is not allowed to discriminate in the application of the law. The problem is that discrimination does legally occur in the law. In fact, that is what the law is: discrimination on the basis of behavior or choices. We discriminate in terms of whether certain actions should be legally allowed or not. The relevant discrimination to the 14th Amendment is discriminating between people. All people are to be protected equally under the law. Equal protection applies to people, not to actions.

The second relevant portion of the 14th Amendment is that it applies the Bill of Rights to the states. Rights that are not to be violated by the federal government are now not to be violated by the states either, according to the interpretation of the 14th Amendment. This is insufficient for any argument depriving jurisdiction from the states to decide for themselves whether or not to legalize abortion (the way it was handled prior to Roe v. Wade), as it requires that a right to privacy relevant to abortion be previously protected from infringement by the federal government. Otherwise that right does not exist and thus cannot be extended to include the states.

In fact, if the 5th Amendment can be construed to protect against the legalization of abortion (as mentioned in the fourth paragraph), it would then be extended properly by the 14th Amendment to an interpretation that even the states cannot legalize abortion.

The last (and perhaps, best) argument that there is a right to privacy found in the Bill of Rights is in the 4th Amendment. It begins with “the right of the people to be secure in their persons, houses, papers, and effects…” Is this privacy in the relevant sense? It continues “…against unreasonable search and seizure…” and “…but upon probable cause…” Perhaps I am missing something, but this is talking about a warrantless search. What that has to do with whether or not a woman decides to get an abortion, I cannot divine.

Clearly it is illegal for the law to invade your privacy to establish whether or not you committed a crime unless it can first provide proof of probable cause, but there is no way to construe this to mean that because something is done in private, is therefore legal. No one would approve of that. Just because “the home is the castle” (Lawrence et al. v. Texas) it does not mean that killing someone or even pick-pocketing someone is legal because it is done in the privacy of your home. If abortion is indeed taking a life (again, something I am not arguing here), then it is murder whether or not it is done “privately”.

Since abortion is not even done in the home generally speaking and is instead performed in abortion clinics, the real relevance according to the Supreme Court is that abortion is a private choice. This, of course, has nothing to do with the 5th Amendment. Would that liberals fought for the privacy of other choices!

Besides that, the privacy of a choice does not determine its legality. I highly doubt that someone decides to commit murder in public. It is a private choice. The law, again, discriminates between actions, between whether or not we allow certain actions. The law determines whether or not something can be chosen privately, not the other way around.

Any “right to privacy” one can elicit is implied in the Constitution or its amendments cannot be applied to the legality of abortion.