Wednesday, July 11, 2012

Does the Constitution Support a Right to Privacy?

Interestingly enough, the legal case for overturning Roe v. Wade (as opposed to the moral case against abortion) doesn't turn on affirming a fetus's constitutional right to life, but instead on denying a woman's absolute right to privacy, which according to Roe's critics, is an invented right which is the product of judicial activism. Here is some information on the debate concerning the right to privacy.

It seems to me there are four possible positions here. You could accept the court's defense of the right to privacy, but still consider abortion to be murder, you could reject the court's defense of the right to privacy and consider abortion to be murder, you could accept the court's defense of the right to privacy and deny that abortion is murder, or you could reject the court's defense of the right to privacy, but deny that abortion is is murder.

The first and fourth positions seem to be, at least consistent, though they put you in a bit of spot reconciling your moral and legal philosophies. In the first place you are stuck saying that abortion is murder, but it has to be legal to protect a woman's privacy. In the second case, you think abortion isn't murder, but there is no legal basis for stopping the government from legislating against it.

Here is a discussion of the legal issue of privacy.


finney said...

What's funny is when liberals deviate from constitutional interpretation to justify abortion rights, but then get mad at conservatives for doing the same to justify gun rights. Neither of them get that exercising judicial restraint or deference to the legislative branch is neither "liberal" nor "conservative"; it's just sound jurisprudence.

finney said...

My above comment was neither here nor there.

Back to the post: "Murder" is a legal concept that requires not only that the fetus is a person but also that the people killing him knew and purposefully killed someone they knew is a person. The "mens rea" (guilty intent) element of murder wouldn't be satisfied.)

So, I would take option 4, even though I happen also to believe that fetuses are morally and legally worthy of protection.

Ilíon said...

"Does the Constitution support a 'Right to Privacy'?"

Yes and no.

The real question is, does a person's inherent 'right to privacy' provide cover for *anything* he may wish to do, such as murder his, or her, offspring? And, if one answers 'yes', then one has asserted that it is impossible (and immoral even to try) to have a civil society.

Anonymous said...

JJ thomson renders all this moot.

B. Prokop said...

Whatever one thinks of abortion, the right to Privacy has overwhelmingly been demonstrated in case after case to be structurally implicit within the Constitution as a whole. You'd gut the whole thing without it.

A strong case can be made on moral and religious grounds against abortion, but you'll get no help from the Constitution.

Victor Reppert said...

You can accept the Supreme Court's position on the right to privacy and still oppose Roe if you think that the personhood of the fetus, and the consequent right to life, is sufficiently evident, on the grounds that life-rights trump non-life rights. (Presumably you can argue that if you lack life, you can't exercise any of your other rights, either). But the standard conservative jurisprudential argument against Roe has been that the privacy right was made up by an activist Court, first in Griswold, and then applied in Roe. They do not seem to think you can challenge the Court's conclusion that we can't be sure of the personhood of the fetus.

As I understand Roe, they concluded

a) We have no certainty as to whether the fetus has a right to life or not.

b) We do know that a woman has a right to privacy with respect to medical matters with her doctor.

Now, I have always found it a little surprising that the conservative jurisprudential argument has concentrated on b, and not on a. But by doing this they have hitched the case against Roe to the long-standing conservative concern about judicial activism.

B. Prokop said...


In personal experience, I've found no correlation between whether a person is a liberal or a conservative and his stance on gun control. I know several conservatives (at least four) who'd like to see a gun-free America, and two liberals who carry. My late wife was a liberal and loved to go to the range for fun (and carried a pistol when in Iraq during the war). I myself am center-left politically, and am a graduate of the NRA gun safety course, and qualified for "expert" marksman in the US Army.

I don't think this is a "liberal-conservative" issue at all.