REPRODUCTIVE FREEDOM AND THE SUPREME COURT VACANCY

by Charles M. Evans, PhD
With the nomination of Judge John Roberts to replace Justice O’Connor, much of the commentary has centered upon the possible fate of the right of women to terminate a pregnancy as described in Roe v. Wade and Casey v. Planned Parenthood.   The more concerning threat, however, is not to Roe itself but to the underlying constitutional right upon which the Blackmun decision in Roe rested: the right of personal privacy.

Justices Rehnquist, Scalia and Thomas, as well as a number of conservative lawyers, jurists, and academics, deny that there is a constitutional right to personal privacy.  They point out that the word “privacy” is not found in the Constitution, and that therefore no such right was intended by the original framers of the Constitution, the Bill of Rights, or subsequent amendments to the document.  These conservatives, often called “originalists”  believe that the Constitution must be interpreted using only the explicit language of the Constitution as understood at the time of ratification. Rehnquist, Scalia and Thomas have stated in a number dissenting opinions that the Court erred in finding a right to personal privacy, and that decisions such as Roe v. Wade and Johnson v. Texas (striking down state laws criminalizing homosexual sodomy), were wrongly decided and should be overruled.

However, a review of Anglo-Saxon legal history in Britain and America demonstrates that the right to personal privacy is embedded as the foundation of most of the personal rights explicitly guaranteed in landmark English and American documents from the Magna Charta to the US Constitution of 1789 and its Amendments.  Even though the word “privacy” does not appear in the Constitution, it underlies the legal and natural rights assumptions upon which Madison and other founders framed the Constitution and the Bill of Rights.

President Bush has publicly declared that he wishes to see the Supreme Court vacancies filled with nominees who share the judicial philosophy of Scalia and Thomas.  Presumably, he has selected such a person in Judge Roberts.  We must conclude, therefore, that Judge Roberts shares their anti-privacy beliefs.   If he is confirmed, the Court will move closer to a bias against any reproductive right that is founded upon a constitutionally protected right of personal privacy. This includes not only the right to abortion, but the right to use contraceptives (even in marriage), the right to no-fault divorce, the right to in vitro or other medically assisted conception, the right to decide upon the fate of any embryos that may be created through medically assisted efforts to conceive, the right to cohabit outside of wedlock, the right to engage in same gender intimate relationships, and other personal rights that we have come to consider settled.  Alarmingly, it is not just the loss of these rights in the abstract that could concern us, but the realization that these and other behaviors could once again be criminalized, and violators subject to fines, incarceration, or both.  Such persons in theory could also be stigmatized as sex offenders and subject to all of the disabilities of that classification.