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Abortion Protest March in Washington ;

No more privacy

Feminist Perspectives
Valentina Chiofalo

Research assistant and PhD-candidate at Freie Universtität Berlin

01 December 2022

The fundamental link between the right to privacy, a person’s identity and reproductive decisions, established in Roe, was annulled. By turning back time, Dobbs, uses a strictly historical interpretation of the right to privacy, which does not include a right to an abortion.

Establishing the right to an abortion under constitutional law is one of the greatest achievements of U.S. constitutional jurisprudence. In 1973, the Supreme Court held in Roe v. Wade that the right to privacy, based on the due process clause of the 14th Amendment, includes the right to decide freely whether to bear a child. In doing so, the Supreme Court acknowledged the fundamental link between one’s identity and the decision about reproduction as a highly personal decision, and one that is part of the fundamental right of privacy.

This link has now been annulled: in Dobbs v. Jackson Women's Health Organization, Justice Alito not only criticized the connection between the right to privacy and the right to have an abortion, he also questioned the right to privacy as a whole. The Mississippi law at hand prohibited abortions after the 15th week – an open contradiction to Roe, which states that no regulation in the sense of a ban is permitted until the fetus is viable (currently agreed on as around 24 weeks after gestation). However, Roe was “egregiously wrong” (p. 5, with reference to Plessy v. Ferguson) and therefore, could be overruled. In Dobbs, Judge Alito's reasoning no longer recognizes a person’s right to choose whether to become a parent or not: The majority opinion states that the Constitution does not provide any evidence for a right to abortion, overruling almost 50 years of precedent.


The right to have an abortion and the right to privacy

It is true that the right to privacy is not mentioned in either the due process clause or the Constitution, so, why should the due process clause encompass the right to have an abortion? First of all, the fact that the right to due process has a substantive as well as a procedural dimension is controversial, but recognized. The procedural due process clause refers to the constitutional requirement that every person has the right to be given notice, the opportunity to be heard, and a decision by a neutral decision-maker. In addition, the substantive due process clause (as well as the procedural due process clause), is based on the principle of fundamental fairness and allows the Court to determine whether a law can be applied - regardless of procedural merits. In Griswold, the Court had to decide whether Connecticut was allowed to ban contraception. The Court stated, that the Connecticut law conflicted with the exercise of the constitutional right to privacy in marital relations and was therefore held null and void.

At the beginning of the Supreme Court's line of jurisprudence, the right to privacy was understood as the right to be let alone, a profoundly anti-totalitarian reading (and thus highly American). However, over the past decades, its interpretation has evolved: the right to privacy is meant to provide the opportunity to build and freely live one's own identity. What matters is "personal autonomy". Although the question of which components of personal development are part of the same remains undefined.

For example, in Bowers v. Hardwick (1986), the Supreme Court refused to declare the prosecution of homosexuality unconstitutional, on the basis of the right to privacy. The reason given by the Court was that homosexuality is not a constitutionally protected right. Although this decision was overturned in Lawrence v. Texas (2003), it highlights a weakness of the right to privacy: Which aspects of personal autonomy should be constitutionally protected, and how can the Court decide such questions in a comprehensible manner?

We are told [by the Court] that privacy encompasses only those "personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,"' that it insulates decisions "important" to a person's destiny, and that it applies to "matters... fundamentally affecting a person." Perhaps the best interpretation of these formulations is that privacy is like obscenity: the Justices might not be able to say what privacy is, but they know it when they see it.– Rubenfeld describes the Court's interpretation

In general, liberal judges recognize such identity-determining questions as part of the right to privacy, which are a central part of the personality. Judges that are more conservative limit the right to privacy more strongly. According to them, as a fundamental right, the right to privacy should be understood as a “natural right” and therefore must be interlinked in the tradition and history of the U.S. This conservative understanding led to the aforementioned result in Hardwick in 1986. In a 5:4 decision, the prosecution of homosexuality was declared constitutional, because such a right was not anchored in U.S. history or tradition, nor in the understanding of liberty - and thus not part of the right to privacy. This line of reasoning is now used by Justice Alito in Dobbs. The right to obtain abortion, he argues, does not arise from the Constitution because it is not "deeply rooted in the nation's history," (p. 5 with reference to Washington v. Glucksberg, 1997).

This is an unfortunate step backwards in two respects: first, the Court is using a natural law and historically backward-looking interpretation of the right to privacy; second, the Supreme Court had been moving away from such a strictly historical interpretation of the right to privacy since Lawrence v. Texas (2003). A clearer and more consolidated definition of the right to privacy in the context of a free development of personality might have prevented such a departure from the line of jurisprudence that has existed for almost 50 years. For, as is already clear today, this legal regression is going to have immense consequences: For example, 14 states have no legal abortion providers. This disproportionately affects poor women and families who cannot afford to leave their state.


Feminist Resistance and Backlash

This development is particularly interesting (and/or tragic) in light of the fact that a movement for reproductive rights and justice is spreading at the international and national level. This movement understands abortion, on the one hand, as a health service and, on the other hand, positions it in the context of different rights. UN committees, the WHO, as well as the European Parliament have repeatedly emphasized the importance of access to abortion and the fundamental nature of reproductive freedom.

At the same time, social movements have liberalized abortion laws in countries such as Argentina, Mexico, and Ireland (although barriers to access remain). In contrast, the tightening of laws in Poland and in the U.S. reflects a growing backlash against feminism. Especially the current events in the U.S. expose the constant fight against the right to have an abortion and to control their own body. It is clear, that Anti-abortion activists in the U.S., in Europa and elsewhere will not rest. Only a social rethinking of abortion, supported and reflected by the legal system, promises long-term security for a pregnant people and their right to privacy. As long as abortions are not accepted, at least in principle, as a health service, pregnant people will always have to expect that the "granted access" to abortion might also be "taken away".


Slaughterhouse Cases, 83 US 36 (1873): Louisiana was allowed to pass a law that restricted slaughterhouse operations in New Orleans to a single corporation.

Plessy v. Ferguson, 163 US 537 (1896): Louisiana was allowed to enact the Separate Car Act, which required separate railway cars for blacks and whites; “separate but equal” treatment for whites and African-Americans is permissible under the Fourteenth Amendment.

Allgeyer v. Louisiana, 165 US 578 (1897): Louisiana was not allowed to pass a law prohibiting out-of-state insurance corporations from conducting business in the state without maintaining at least one place of business and an authorized agent in the state under the Fourteenth Amendment's due process clause.

Griswold v. Connecticut, 381 US 479 (1965): Connecticut is not allowed to ban contraception; the right to privacy is violated.

Roe v. Wade, 410 US 113 (1973): The Texas law making abortion illegal except by a doctor’s orders to save a woman’s life violates the right to privacy and is therefore unconstitutional.

Bowers v. Hardwick, 478 US 186 (1986): the criminal prohibition of homosexuality is constitutionally permissible.

Washington v. Glucksberg, 521 US 702 (1997): Washington was allowed to ban physician assisted-suicide under the Fourteenth Amendment's due process clause.

Lawrence v. Texas, 539 US 558 (2003): overruled Bowers, the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the right to privacy.


About the author

Valentina Chiofalo is a research assistant and PhD-candidate at Freie Universtität Berlin. In her research, she is specialized on questions about identity in constitutional law. In addition, Valentina is part of the Legal Team of Doctors for Choice, Germany.  Pronouns: she/her.

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Feminist Perspectives

Feminist Perspectives is a blog created to publish research-based work – like academic research and think pieces – and art-based projects that use gender as a category of analysis or explore…

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