The Right’s Assault on the Right to Autonomy & Privacy: The Abortion Debate
An op-ed highlighting how the debate surrounding the Texas “heartbeat bill” is not about abortion but one’s right to privacy and self-autonomy.
By: Ian L. Courts¹
On May 19, 2021, Texas passed a “heartbeat bill” that bans abortion after six weeks. In the night hours of September 2, 2021, the United States Supreme Court, in a historic move, decided to allow the Texas “heartbeat bill” to remain in place, citing that there was not an indication that a state official would enforce the law. SCOTUS’s decision was a temporary win for the conservative right. It may likely result in a full decision on the merits by the Supreme Court to overturn Roe v. Wade and Planned Parenthood v. Casey ultimately stripping women of a federal right to abortion. As a Christian, I am personally opposed to abortion; however, this debate is not truly about the right to life; nay, it’s about the right to self-autonomy and privacy recognized in American jurisprudence. This discussion will highlight how the Court’s recent decision can upend decades of precedent, recognizing the right to privacy and self-autonomy. Moreover, I will briefly discuss how international law could affirm a woman’s right to self-autonomy and privacy through the ratification of Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
U.S. Constitution — 4th and 14th Amendment’s Implicit Right to Privacy and Autonomy
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Constitution; 4th Amendment)
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Constitution; 14th Amendment, Section 1)
As is implied in the language of the 4th Amendment, every person within the United States has the right to be free from unreasonable governmental searches and seizures AND to be secure in their persons and effects. From the text, one can reasonably derive that every person within the U.S. has a right to privacy concerning their person; and the government cannot intrude on that right unless the intrusion has been deemed reasonable.
Moreover, from a plain language reading of the 14th Amendment, which incorporates the 4th Amendment’s privacy rights to state governments; no state government shall have the authority to deprive any person of life or liberty or any privileges or immunities of citizens of the U.S. Thus, states cannot deprive a person of their right to self-autonomy and privacy, recognized under the 4th Amendment.
As I discussed above, throughout the Supreme Court’s history, it has recognized the right to the implicit right to privacy and self-autonomy of every person and mandated that the government have a sufficiently justifiable reason for infringing on that right.
SCOTUS Precedent Recognizing a Right to Privacy & Self-Autonomy
Griswold v. Connecticut, 381 U.S. 479 (1965) “Privacy Right Married Persons”
In Griswold v. Connecticut, the Supreme Court ruled that married persons can choose to use contraceptives or not because of this implicit right of privacy. In this case, Connecticut had a statute in which it was illegal for any person (s) to use any drug to prevent the conception of a child. Thus, this law made it illegal for one to acquire information to and or let alone receive aid in birth control, protective sex usage, or abortion. This limited the options of married couples and placed an undue burden on the couple to endure pregnancy even if not mentally, fiscally, or generally overall ready. The Planned Parenthood Association provided contraceptive information pamphlets to the Griswolds and was held to violate the statute. Yet, the Court ruled that the law was, in fact, a violation of the privacy rights of married couples. The Court ultimately affirmed privacy as a fundamental right that can be abridged by governmental intrusion, specifically in the area of procreation of married couples.
Here is my first point that if in the case of married persons there is a privacy right to use and receive information on contraceptives, against governmental intrusion should not that privacy right be afforded to pregnant persons in determining whether they want to continue a pregnancy?
Eisenstadt v. Baird, 405 U.S. 438 (1972) “Privacy Right Individual Procreation”
“the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Eisenstadt v. Baird, supra 453) In this case, a Massachusetts professor William Baird gave a lecture concerning contraceptive use and over-population and, following his lecture, gave some informational pamphlets to a single woman (this point is relevant). The state of Massachusetts charged Mr. Baird with violating a state law that “only married persons could obtain contraceptives” and “only registered physicians or pharmacists could hand out information on contraceptive use.” For anyone else to use contraceptives or give information out concerning their use was a felony.
The Supreme Court ruled that the individual had privacy protection from governmental intrusion in procreation and contraceptive use. This was not based on Griswold but on the Equal Protection Clause of the 14th Amendment protecting the individual (married or single) from governmental action infringing on their right to privacy and self-autonomy regarding the decision to become pregnant or terminate a pregnancy.
My next point, if the individual has privacy rights against the government according to the implied language of the 14th Amendment “Equal Protection Clause,” should not women maintain the right to decide to remain pregnant or not?
Roe v. Wade, 410 U.S. 113 (1973) “Women’s Right To Terminate Pregnancy”
“fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,” The preceding statement made by the District Court in Roe v. Wade. In Roe, a Texas resident (Roe) sought to terminate her pregnancy and was denied access to legal abortion. This Court ruled that women (generally and more specifically pregnant women) had the Constitutional right to terminate their pregnancy according to the established precedent of Griswold recognizing the right to privacy and the Equal Protection Clause of the Fourteenth Amendment. Thus, women had the autonomy to terminate their pregnancy at will based on their Constitutional right to privacy. This privacy right was later affirmed, though modified in part, by SCOTUS in Planned Parenthood v. Casey.
Planned Parenthood v. Casey, 505 U.S. 833 (1992) “No Undue Burden by State”
In Planned Parenthood v. Casey, the Court upheld Roe and added the “undue burden” test to cases following this precedent. In the state of Pennsylvania, women had to endure several hurdles to receive an abortion, such as a 24 hour wait period, minors obtaining consent from parents, and wives having spousal approval. This Court upheld much of the law except the notification of the wife to her husband and mandated that governmental intrusion could not impose undue burdens on pregnant women exercising their privacy and self-autonomy rights to terminate a pregnancy.
In Griswold, Casey, Eisenstadt, and Roe, the Court reinforces a woman’s right to privacy and autonomy in their decision to terminate their pregnancy. The debate has little to do with a right to life. Still, it is centered on whether women have a right to privacy and self-autonomy in determining whether to procreate or not. SCOTUS’s decision to uphold the Texas “heartbeat” bill spells trouble for the right to privacy and self-autonomy. It could support further intrusions by the government on the liberty and freedoms of American citizens.
International Law & The Affirmance of the Right to Choice
However, international law could provide an avenue for the right to choose to be codified and binding on the United States. The International Covenant of Civil and Political Right’s Article 6, comment 36, enshrines women’s international right to choose to terminate their pregnancy and do so safely and healthily. Moreover, the International Court of Justice (ICJ) in K.L. v. Peru (2005) held that the refusal of therapeutic abortion access constituted as cruel, inhuman and degrading treatment” in violation of Article 7 of the ICCPR. The United States is a rotifer of the ICCPR. Still, our courts have failed to enshrine this Covenant in our jurisprudence concerning abortion access. In addition to arguing for codified Constitutional Equal Protection provisions, policymakers and activists should cite and use international support law affirming the right to choice, privacy, and autonomy. Our world is globally-connected, and the infringement of women’s rights in one country affects us all.
I hope this discussion highlights that the debate is not about life or death but your right to privacy and self-autonomy. Though not explicitly contained in our founding documents, a right is implied in the principles of liberty and the language of the 4th and 14th Amendments.
[1]: About the Author: Ian Courts is a young millennial attorney with expertise and a passion in American and international law and politics. Ian received his BA in Political Science from the University of North Carolina at Greensboro in 2017, in 2020 he received his J.D. from North Carolina Central University School of Law, and in 2022 Ian received his LLM in International Criminal Law and Justice from the University of New Hampshire School of Law. Ian lives in Philadelphia where he is an appellate lawyer and the proud fur-dad of two American Cocker Spaniels.
