Just a few months ago, many of us were horrified to learn that a 10-year-old rape victim from Ohio was forced to delay medical attention and travel to Indiana to get the reproductive health care that she needed. Sadly she is just one example of how our fundamental right to bodily autonomy has been stripped away following the Supreme Court’s decision to overturn Roe v. Wade.
Yet, as dangerous as this ruling is for more than half of the U.S. population, its impact on the right to privacy is much more far-reaching than you might think.
Fundamentally, the Dobbs v. Jackson Women’s Health Organization ruling, along with many other Supreme Court rulings including Roe v. Wade, deal with the right to personal privacy, which is an “unenumerated” right — meaning it is not explicitly mentioned in the Constitution.
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Abandoning nearly 50 years of precedent, the Dobbs court said if a right is not mentioned in the Constitution, it needs to be “deeply rooted in this Nation’s history and tradition,” and defined “deeply rooted” by relying heavily on whether it was widely accepted by those in power at the time the Fourteenth Amendment was ratified in 1868.
Of course the right to personal privacy and reproductive health care, as well as a number of other rights, were not accepted by those in power at a time when women and many others were excluded from the legislative process. And if that’s the test for when a right is constitutional, then what about the right to contraception? The right to certain forms of sexual intimacy? The right to same-sex marriage?
The Supreme Court’s majority clearly knew these were obvious questions raised by their overall argument. And they even tried to tell us that we shouldn’t worry about these other rights — that the Dobbs opinion only applies to reproductive health care. But Justice Clarence Thomas proves that statement wrong when he says in his far-reaching concurring opinion that the Supreme Court should reconsider the constitutionality of those other rights.
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So, if the majority is laying the groundwork for the argument that the right to personal privacy doesn’t exist for these cases — because a right to personal privacy didn’t exist for a lot of people in 1868 — then presumably the right to personal privacy doesn’t exist in most modern contexts.
That could include things like the right to privacy in the mail or email; the right to privacy in movement or travel; the right to privacy with medical procedures and conditions; the right to privacy in parenting decisions; the right to digital and data privacy.
Unfortunately, we are already seeing how the right to personal privacy in these other contexts is being taken away.
In Tennessee, lawmakers just passed legislation to prohibit doctors’ offices or pharmacies from sending certain prescription medications in the mail. This is especially dangerous to those who rely on their prescriptions to stay healthy like those with lupus, arthritis, and Crohn’s disease.
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In Nebraska, police have criminally charged a mother for helping her teenage daughter seek reproductive health care after Facebook handed over their private messages.
This case represents an outrageous breach of both digital and parental privacy and raises the more universal questions: Do you have digital privacy? What can stop the government from accessing other digital data to use against you? Are all parental rights to help children access health care and get help also criminalized? The answer is already clear in some states – your right to privacy is not protected.
In Texas, James Weller rushed his wife Elizabeth to a nearby hospital to treat a dangerous pregnancy complication. But doctors said they couldn’t administer care until either Elizabeth got very ill, or the fetus died. James and Elizabeth were making travel arrangements to another state when Elizabeth’s health deteriorated enough that doctors were willing to induce her delivery. But if James and Elizabeth had been forced to travel to another state to receive care, both of them could have been held liable by those working to restrict travel across state lines for reproductive care.
At the end of the day, the Dobbs ruling creates a dangerously open legal field. It is not just about one single medical procedure. It is about whether or not a government can interfere in any private personal matter.
Which raises the biggest question of all: can any of us — men, women, children, liberal, conservative — really feel comfortable and safe knowing we now have no guaranteed right to personal privacy in our own communities, in our own backyards, in our own homes?
