How Dobbs Threatens to Torpedo Privacy Rights in the US


In future cases, the Supreme Court continued to recognize that its greater protection of privacy rights was the product of a substantive review of due process, although it insisted that this was consistent with the rejection of Lochner because it applied only to “fundamental” interests of liberty. As a result, the court’s doctrine required differentiating between “fundamental” interests of liberty, for which government interference was presumed unconstitutional, from ordinary interests of liberty, which the government was presumably free to limit as long as it acted rationally.

Judges continued to fight for which freedoms were fundamental. Closer evidence favored by more conservative judges limited fundamental rights only to those that were clearly established in the text of the Constitution or that would have been considered essential at the time the Fourteenth Amendment was enacted in 1868. A more expansive approach, employed in Roe and other cases, focused more on a contemporary assessment of the deep bets for the individual. Another approach, suggested in cases such as Lawrence v. Texassought the evolution of the understanding of essential personal freedom, as evidenced by popular consensus.

Although Roe remained controversial in circles of legal theory, in part because of his broader understanding of fundamental rights and the striking specificity of his quarterly framework for reviewing abortion laws, he remained in Planned Parenthood v. Casey in 1992 in a joint opinion that seemed to confirm an understanding of the due substantive process that evolved with popular values. A line of historical cases over the next quarter of a century seemed to consolidate this understanding. In particular, the court extended the same principle of privacy to protect the right of gay people to establish intimate relationships and to marry based on the recognition of an “emerging awareness” of their equality of dignity claim in deeply important relationships, despite the lack of historical protection. for these rights.

It was in this landscape that Dobbs pointed out an abrupt reversal, of course. While the court did not reject the concept of due process, it rejected any ground for recognizing “fundamental rights” other than the text of the Constitution or in deeply rooted historical traditions. Because the right to abortion was not included in the text, and because the authors of the Fourteenth Amendment in 1868 did not consider abortion a fundamental freedom, the court ruled that there was no basis for special constitutional respect for woman’s right to choose. Instead, the majority considered that the right to make decisions about pregnancy was an ordinary freedom of the same rank as worldly choices about lifestyle, trade or leisure, subject to free regulation as long as the government acted rationally.

To move forward, then, DobbsThe approach would contain fundamental rights entitled to strong constitutional protection to a narrow band of freedoms so universally respected over time that there would be little likelihood of political interference in any case.

The right to “privacy” to which Dobbs goal is really a right to personal autonomy: a right, as Dobbs to say, “to make and implement important personal decisions without government interference.” Yen Dobbs, this right was considerably reduced. This is why many suggest that the next rights in the spotlight could be those of contraception or same-sex marriage, as Judge Thomas openly encouraged in his concurrence: if these rights are not found in the text of the Constitution and if the drafters of the Fourteen The Amendment could not have imagined them in 1868, it is not obvious why they would remain on firmer ground under the logic of Dobbs.

A “very different” type of privacy: “the right to protect information from disclosure”

The impact of the court’s opinion on Dobbs and its implications for autonomy rights in the name of privacy are seismic, however Dobbs it does not mean the end of legal protection for other forms of privacy, both under the Constitution and other laws. From the text of the Fourth Amendment, for example, it is clear that the government cannot freely search for houses without a court order. He Dobbs opinion does not change that.

Dobbs nor does it say anything about what Judge Alito called a “very different” type of privacy in his majority opinion, “the right to protect information from disclosure.” It may seem like a fine distinction, given that both autonomy and outreach interests arise from a common root in privacy in their sense of “right to be left alone,” but constitutional autonomy rights and the right in the privacy of information they have different goals and often different legal bases. .



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