Study Guide

Right to Privacy - Abortion and Privacy

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Abortion and Privacy

  • Supreme Court views abortion as a "privacy right" and a "liberty claim"
  • Abortion is protected by the Fourteenth Amendment, informed by the First, Third, Fourth, Fifth, and Ninth Amendments

We hate to disappoint you, but we won't be talking much here about the right to life or the right to choose. We won't be talking about murdering the unborn or a woman's inviolable right to control her body. As much as this sort of language and these sorts of claims fill the abortion debate, they are not really central to the way the Supreme Court has addressed the issue of abortion. For the Court, abortion is a "privacy right" and a "liberty claim." It is protected by the Fourteenth Amendment, which is informed, in this case, by the First, Third, Fourth, Fifth and Ninth Amendments. You may find this evasive—some have argued that this approach only obscures more fundamental moral or philosophical questions—but this is the way the Court has ruled. If you want to understand the state of abortion law in America, this is the way you have to think.

The Supreme Court established this position in 1973 in Roe v. Wade. But before we can discuss that ruling we need to back up a bit.

The Origins of a Legal Right to Privacy

  • Supreme Court cases dating back to late nineteenth century have established an implied right to privacy in the Constitution
  • In 1923 case Meyers v. Nebraska, Court ruled that privacy was a "liberty claim" protected by the Fourteenth Amendment
  • 1920s court cases Meyers v. Nebraska and Pierce v. Society of Sisters established that families' decisions regarding how to raise children fell within a zone of privacy not subject to government interference

Since the late nineteenth century, legal scholars have argued that there is a legal right to privacy. In 1890, Louis Brandeis, who was later named to the Supreme Court, defined this right as "the right to be let alone." Brandeis's interest was in the damage done by an intrusive and sensational press, and he looked for remedies in the common law. But the broader discussion of privacy led some to find a right to it in the Constitution. While conceding that the word "privacy" did not appear in the Constitution, they argued that it was implicit within other expressed guarantees. The Fourth Amendment offered, many suggested, perhaps the most concrete privacy guarantee in protecting "the right of the people to be secure in their persons, houses, papers, and effects." But the First and Fifth Amendments were equally important, if more subtle, is suggesting zones of belief, activity, and information that were closed to government intrusion.

The Supreme Court eventually embraced and even expanded this privacy right by holding that, in addition to the implicit guarantees of the Bill of Rights, privacy was a "liberty claim" protected under the Fourteenth Amendment. This amendment, passed in 1868, declared that no state could deny a person life, liberty, or property without due process of law, and in a series of cases the Court held that privacy was one of the fundamental liberties subject to this protection.

The Court advanced this argument first in 1923 in Meyer v. Nebraska, a case prompted by a 1919 Nebraska law that forbade children younger than high school age to be taught a foreign language. Inspired by the anti-German sentiments of World War I, the law was challenged by Robert Meyer who taught German in a Lutheran grammar school. In a 7-2 decision, the Court held that the law violated the terms of the Fourteenth Amendment. And in explaining its decision, the Court drew more fully the connection between privacy and liberty, between the implicit protections of the Bill of Rights and the explicit demands of the Fourteenth Amendment.

The Court recognized that it was heading into new territory here; it had "never attempted to define, with exactness, the liberty guaranteed by the Fourteenth Amendment." But "without doubt," the Court continued, "it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

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