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On Privacy

By: Hadley Arkes
March 14, 2006

In the run-up to the hearings on Sam Alito, a reporter called from a paper in Sacramento to ask whether the pro-lifers were disturbed that both John Roberts and Sam Alito had accepted a constitutional right to privacy. I explained that there was no problem: They could readily concede a principle of privacy, and there was no need to find that principle in the Fourth Amendment or the Fourteenth. The regime itself, the constitutional order, began with the deep premise that people had a presumptive claim to freedom in all dimensions of their lives. They would have the freedom to deliberate about the grounds of their well-being and pursue their own, private interests. The burden of justification fell to the government whenever it would override those private rights. A constitutional order meant a limited government, a limit to the reach of public authority. What was marked off then, by indirection, was a sphere of privacy outside the reach of the law. It was understood in the past that a "liberal" constitutional order drew a sharp line to protect the sphere of privacy: private business, private clubs, yes, even private families, with the freedom to arrange their lives according to their own private criteria. But clearly, the community has found reason at different times to penetrate those spheres of privacy.

We have legislated against racial discrimination in private corporations and even private clubs; we have intervened in the lives of families to protect children from abuse or death at the hands of their parents. And with that sense of the matter, the law in the past has even cast its protection on the unborn child in the womb. In each case, the question was whether there were wrongs to be vindicated, harms to be averted; and in each case we would need to judge whether the intervention of the law would be justified. Nothing, in that respect, has been altered—or will ever be. The point is, merely invoking the notion of "privacy" does none of the heavy lifting here. It doesn't tell us whether the law would be justified in intervening in any case to protect victims from suffering wrongs and irreparable harms.

It is curious that we hear so much about privacy at a time when the respect for privacy has so dramatically receded. The people who talk most insistently about privacy have been the people most willing to see the law invade spheres of privacy, in private businesses, private clubs, for the sake of reaching instances of discrimination on the basis of race or sex. And many of the same people have been willing to extend the laws on sexual harassment, or even reach the matter of rape in the family. In none of these instances—let me emphasize—do we depend on surveillance. Rather, we have seen the willingness of people to lodge complaints, to invite the inquiry of outsiders, and to expose in a public, legal forum the intimate details of their sexual lives or sexual encounters. We seem to see the banner of privacy raised these days mainly to protect the right of people to end the life of a child in the womb for wholly private reasons (a concession that the law makes in no other part of the laws on homicide).

In the case of gay rights, the principle of privacy is sounded for the purpose of fending off those people who might cast moral judgments on sexual encounters taking place in private settings and register some of those judgments in the law. Strictly speaking, a right of privacy can never be explained or justified as a right to mark off a domain insulated from the law, behind which people may claim a "right to do a wrong." A murder in a bedroom is as much a murder as a murder in the public streets. Packets of heroin hidden in body cavities have come within the reach of the law, which has, as Judge Sirica used to say, a claim to the evidence of any man (or woman) when it bears on the commission of a crime.

But even in private sexual encounters, anyone with the sense of the law and moral judgment must know that Justice Kennedy overreached in Lawrence v. Texas if he really meant to suggest that private, consensual acts may never become the concern of the law. Just about every conservative I know would have held back the hand of the law, or even repealed that criminal law on sodomy in Texas. And yet it marks a flight from sobriety—or any faintly rigorous juridical sense—to say that the law may never cast an adverse moral judgment on sexual practices taking place in private settings: If we had men seeking to be adoptive fathers, it could make the most notable difference, in the weighing of their claims, if they happen to be, like Peter Melzer in New York, committed members of the Man-Boy Love Association, or people openly committed to sado-masochistic sex. Even judges who shy away from moral language may find reservoirs of judgment as they find quite plausible ground to believe that a man committed to sadomasochism, containing in his house whips and chains and fearsome devices, may not provide the most wholesome household for the nurturing of a child.

In that vein, it is worth noting that even gay activists have held back from recognizing the legitimacy of that "sexual orientation" represented by the Man-Boy Love Association. There has been a lively controversy over whether NAMBLA should be represented in the parades displaying gay pride. But the members of NAMBLA respect their own "orientation" and they have raised a serious challenge on the question of why only adults are competent to consent to the things that give them pleasure. What the controversy reveals is that even gay activists regard certain kinds of sexual orientations as illegitimate—pedophilia, and, for many, bestiality (sex with animals) and sado-masochism. But if that is the case, that understanding would strike at those statutes that would ban, in a sweeping way, all discriminations based on sexual orientation. My own challenge to our friends on the other side—a serious challenge—is this: If you removed, as you must, that abstract language of "sexual orientation," what would you put in its place as you sought to bar discriminations against certain sexual practices? It couldn't be discrimination in the way people seek their orgasms, because people seek their satisfactions in ways that may indeed inflict harm on themselves and others, and properly draw the restraint of the law. This is a plain question that the activists have been steady in ignoring.

But then to the A-word, the matter of abortion; that matter that, as everyone knows, has been at the heart of the controversies over confirmation to the Court since the hearings over Robert Bork. I've found it curious that so many people on both sides seemed to think that the Court is now at the edge of overruling Roe v. Wade. I've been in the pro-life movement for years, and as a matter of prudence I would not seek an immediate overruling of Roe, for it would set off a panic among people who would think that the Court was now outlawing abortion, or dispossessing them of a right, rather than simply returning the matter to the political arena, where legislators and citizens can deliberate and vote on the matter. And what we are likely to see then is a rush to enact Roe v. Wade into the statutes of various states. My own inclination is to move along the path that, in my reading, John Roberts and Sam Alito are far more likely to take. If they manage to flip the decision on partial-birth abortion—if they manage to sustain the federal bill—they will be saying in effect that "we are in business to start taking seriously, and sustaining, restrictions on abortion." And from that point we will see a steady flow of measures restricting abortion, moving step by step.

Every one of these measures would involve things never actually settled in Roe v. Wade, measures that cannot be struck down simply by invoking the mantra of "privacy,' and measures that would command, at each step, the support of about 70 percent of the electorate, including people who call themselves "pro-choice." For example, we could test the Born-Alive Infants' Protection Act, to preserve the life of the child who survives the abortion. Is the "right to abortion" a right to detach oneself from an unwanted pregnancy, or the right to a dead child? Could a legislature require then the method of abortion more likely to yield the child alive? We could revisit that matter. A woman may have the "right to choose," but is a decision taken in ignorance a voluntary decision? Many women are astonished to learn that the beating of the heart can be heard in the fetus at 22 days. Would it be unconstitutional to make sure that they know that, or simply to ask women just what information they might like to have? There are lingering questions, also, of the right to perform surgeries on minors without the permission or even the awareness of parents.

When the Court simply starts upholding restrictions of this kind, the regime of Roe v. Wade will have come to an end, quite apart from whether the Court pronounces it overruledRoe may stand then as a shell, with the substance more and more removed. Byron White, one of the dissenters in Roe, once surprised Justice Stevens by remarking that he too could live with a certain understanding of Roe v. Wade. He might do that if Roe were placed on the same basis as those precedents from which Roe was supposedly drawn. And so the so-called "right to marry" inLoving v. Virginia never meant that the State may not make many plausible, legitimate restrictions on the freedom to marry—as when it bars incestuous marriages or the marriage of minors. Roe could be taken to mean that there is a right to abortion where that surgery can be justified, but that the community may make many restrictions on taking the life of the child in the womb when it judges that there is no compelling justification for taking this innocent life.

At some point it would indeed be important to overrule Roe precisely because of the corrupting effect that it has as it touches all parts of our law, and creates, for example, the notable exception to the First Amendment carved out for pro-life demonstrators. But we have here what has been called the art of overruling—the art of showing why the holding in Roe just cannot supply the grounds of judgment, in case after case. And as the public becomes schooled to this movement—as it comes to see more and more restrictions as plausible and justified—there will be far less surprise or astonishment on the day when the judges finally decide to take the last, short step and announce that it is time to put this precedent away. When it does that, it will have removed a political holding that has done more than anything in the last 30 years to disfigure our jurisprudence and poison our national politics. Not a bad day's work, on the day it finally happens.