The Right to Privacy Without Abortion.

[Jim_B]

This question is partly inspired by Supreme Court nominee Sonia Sotomayor. I recently heard some conservatives think she may be anti-abortion. Yet I suppose she may be liberal in other ways too (I’m sorry I don’t have any examples of this or links at this time). This got me to thinking, Is it possible someone could support the Right to Privacy without supporting the right to abortion a la Roe v. Wade?

As many of you probably already knew, the right to an abortion in the first trimester of pregnancy is part of the right to privacy. The right to privacy was first recognized by the Supreme Court in 1966.

Also, as long as I’m asking, what other examples of people who recognize the right to privacy without the right to abortion are there (if there are indeed any)? And what else do they typically believe, say, when it comes to First Amendment rights, for example?

Thank you in advance to all who reply:)

[Chronos]

As many of you probably already knew, the right to an abortion in the first trimester of pregnancy is part of the right to privacy. The right to privacy was first recognized by the Supreme Court in 1966.

No, the right to privacy goes back a lot further than 1966, considering that the Fourth and Fifth Amendments grant privacy rights. What happened in 1966 was that the Court decided that abortions under some circumstances fall under the right to privacy.

[Walloon]

@Chronos

What happened in 1966 was that the Court decided that abortions under some circumstances fall under the right to privacy.

Just what 1966 Supreme Court case are you talking about?

[Walloon]

Some non-abortion related statements from the Supreme Court about the right to privacy (with summaries from Westlaw):

Stanford v. State of Tex., 85 S.Ct. 506 (U.S.Tex., 1965)
First, Fourth and Fifth Amendments to Constitution are related and safeguard not only privacy and protection against self-incrimination but conscience and human dignity and freedom of expression as well.

Griswold v. Connecticut, 85 S.Ct. 1678 (U.S.Conn., 1965)
Specific guarantees in the Bill of Rights have penumbras; one of these penumbras is privacy.

[Walloon]

To answer the O.P., Justice Byron White was part of the unanimous decision in Stanford (above), and was one of the two dissenters in Roe v. Wade.

[ruadh]

@Chronos

No, the right to privacy goes back a lot further than 1966, considering that the Fourth and Fifth Amendments grant privacy rights.

Boyd v US (1886) is the first case I know of. A search and seizure case.

[Captain_Amazing]

@ruadh

Boyd v US (1886) is the first case I know of. A search and seizure case.

Boyd doesn’t address privacy directly, though, although it sort of leans toward it. It says basically that because the constitution prohibits self incrimination and unresasonable search and siezure, it also prohibits mandating someone to turn over his private papers.

Search and seizure af a man’ private paper to be used in evidence for the purpose of convicting him of a crime, recovering a penalty, or of forfeiting his property is totally different from the search and seizure of stolen goods, dutiable articles on which the duties have not been paid, and the like, which rightfully belong to the custody of the law.

A more explicit ruling setting up the right to privacy is in 1923’s Meyer v Nebraska (A state law banning the teaching of German is unconstitional)

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

[ruadh]

@Captain_Amazing

Boyd doesn’t address privacy directly, though, although it sort of leans toward it. It says basically that because the constitution prohibits self incrimination and unresasonable search and siezure, it also prohibits mandating someone to turn over his private papers.

This is the part I was referring to:

[The fourth and fifth amendments apply] to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.

The next (sort of) relevant decision I know of is Gilbert v Minnesota (1920), an education case, in which Brandeis wrote that the Fifth Amendment protects “the privacy and freedom of the home”. That was a dissent, though.

Anyway, the point is that the right to privacy was recognised long before the right to abortion!

[alphaboi867]

@Walloon

Just what 1966 Supreme Court case are you talking about?

Sounds like it’s Griswold v. Connecticut, but that dealt with contraceptive use by married women not abortion.

[Walloon]

And Griswold is a 1965 decision.

[ToddEnsz]

The question as posed “Is it possible someone could support the Right to Privacy without supporting the right to abortion a la Roe v. Wade?” is complicated in that a person can support a woman’s right to chose without supporting Roe v. Wade. Many people believe that this issue falls squarely into the category of rights that should be determined by the individual states. In other words that my opinion here in Illinois should necessarily be forced on the folks in Utah. That, paraphrasing, rights not expressly articulated in the constitution are left to the states to resolve. This is something that many folks misunderstand. Overturning Roe v. Wade would not make abortion illegal. It just means that it would fall to the states to define when and how they would be performed, if at all.

[Walloon]

Good point, ToddEnsz. There are many legal scholars who consider Roe v. Wade badly reasoned constitutionally, who nonetheless support abortion rights.