Opinion

No right to privacy

The Supreme Court created privacy rights, and it can take them away

Do you have a right to privacy? The question would prompt an indignant "I sure do" from most Americans. But nowhere in the Constitution did the Framers use the word "privacy" or expressly state any support for "my body, my choice." Privacy is an invention of the Supreme Court. Until the Griswold decision in 1965, states could prohibit anyone — including married couples — from using contraception. Until 1967's Loving decision, states could imprison people for marrying someone of another race. Until 2003's Lawrence ruling, states could arrest gay men — or straight couples — for engaging in "sodomy" in their own bedrooms. Griswold was the big turning point. In that ruling, Justice William O. Douglas wrote that "penumbras" and "emanations" of protections actually spelled out in the Bill of Rights created an implicit "zone of privacy" upon which the government could not intrude. This concept became the foundation of Roe v. Wade in 1973, with five Republican appointees in the 7-2 majority. But what the Supreme Court giveth, it can taketh away. "Originalist" justices now in the majority mock Douglas' "penumbras," and do not believe privacy rights exist. During recent arguments on a Mississippi abortion law, Justice Brett Kavanaugh said that since the Constitution does not address abortion, Roe can be discarded, and each state can decide if women will be compelled to carry pregnancies to term. Under originalism, the court could reverse Griswold and let states ban contraception. (Some religious groups contend that the pill and IUDs are "abortifacients.") The Constitution also is silent on interracial marriage, and provides no assurance you can engage in sex acts of which your neighbors disapprove. Same-sex marriage? Sorry, not in the Constitution, either. If precedent has no weight, privacy rights become conditional on popular approval. And what you can and cannot do depends to an astonishing extent on what five out of nine Supreme Court justices think, believe, and feel.

This is the editor's letter in the current issue of The Week magazine.

More From...

Picture of William FalkWilliam Falk
Read All
The soul of a machine
Ones and zeroes.
Talking Points

The soul of a machine

Rewarding Putin for invading
Vladimir Putin.
Talking Points

Rewarding Putin for invading

America's metastatic cancer
The Capitol.
Talking Points

America's metastatic cancer

The next Prohibition
Prohibition.
Talking Points

The next Prohibition

Recommended

The future of the pro-life movement
Protesters.
Picture of Joel MathisJoel Mathis

The future of the pro-life movement

Trump Jan. 6 adviser John Eastman says FBI seized his phone
John Eastman
The plot thickens again

Trump Jan. 6 adviser John Eastman says FBI seized his phone

46 people found dead, 16 hospitalized in hot tractor-trailer in San Antonio
46 dead in tractor-trailer
'nothing short of a horrific human tragedy'

46 people found dead, 16 hospitalized in hot tractor-trailer in San Antonio

At least 3 dead, dozens injured after Amtrak train derails in Missouri
An Amtrak train car.
accidents

At least 3 dead, dozens injured after Amtrak train derails in Missouri

Most Popular

Why isn't Lightyear taking off at the box office?
Lightyear.
Opinion

Why isn't Lightyear taking off at the box office?

What we pay for when we pay for a gallon of gas
Money.
Briefing

What we pay for when we pay for a gallon of gas

Pfizer says Omicron vaccines produce stronger immune response
Man walking past Pfizer ad
another shot

Pfizer says Omicron vaccines produce stronger immune response