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.
Create an account with the same email registered to your subscription to unlock access.