No more privacy

Establishing the right to an abortion under constitutional law is one of the greatest achievements of U.S. constitutional jurisprudence. In 1973, the Supreme Court held in Roe v. Wade that the right to privacy, based on the due process clause of the 14^th Amendment, includes the right to decide freely whether to bear a child. In doing so, the Supreme Court acknowledged the fundamental link between one’s identity and the decision about reproduction as a highly personal decision, and one that is part of the fundamental right of privacy.

This link has now been annulled: in Dobbs v. Jackson Women's Health Organization, Justice Alito not only criticized the connection between the right to privacy and the right to have an abortion, he also questioned the right to privacy as a whole. The Mississippi law at hand prohibited abortions after the 15^th week – an open contradiction to Roe, which states that no regulation in the sense of a ban is permitted until the fetus is viable (currently agreed on as around 24 weeks after gestation). However, Roe was “egregiously wrong” (p. 5, with reference to Plessy v. Ferguson) and therefore, could be overruled. In Dobbs, Judge Alito's reasoning no longer recognizes a person’s right to choose whether to become a parent or not: The majority opinion states that the Constitution does not provide any evidence for a right to abortion, overruling almost 50 years of precedent.

The right to have an abortion and the right to privacy

It is true that the right to privacy is not mentioned in either the due process clause or the Constitution, so, why should the due process clause encompass the right to have an abortion? First of all, the fact that the right to due process has a substantive as well as a procedural dimension is controversial, but recognized. The procedural due process clause refers to the constitutional requirement that every person has the right to be given notice, the opportunity to be heard, and a decision by a neutral decision-maker. In addition, the substantive due process clause (as well as the procedural due process clause), is based on the principle of fundamental fairness and allows the Court to determine whether a law can be applied - regardless of procedural merits. In Griswold, the Court had to decide whether Connecticut was allowed to ban contraception. The Court stated, that the Connecticut law conflicted with the exercise of the constitutional right to privacy in marital relations and was therefore held null and void.

At the beginning of the Supreme Court's line of jurisprudence, the right to privacy was understood as the right to be let alone, a profoundly anti-totalitarian reading (and thus highly American). However, over the past decades, its interpretation has evolved: the right to privacy is meant to provide the opportunity to build and freely live one's own identity. What matters is "personal autonomy". Although the question of which components of personal development are part of the same remains undefined.

For example, in Bowers v. Hardwick (1986), the Supreme Court refused to declare the prosecution of homosexuality unconstitutional, on the basis of the right to privacy. The reason given by the Court was that homosexuality is not a constitutionally protected right. Although this decision was overturned in Lawrence v. Texas (2003), it highlights a weakness of the right to privacy: Which aspects of personal autonomy should be constitutionally protected, and how can the Court decide such questions in a comprehensible manner?

In general, liberal judges recognize such identity-determining questions as part of the right to privacy, which are a central part of the personality. Judges that are more conservative limit the right to privacy more strongly. According to them, as a fundamental right, the right to privacy should be understood as a “natural right” and therefore must be interlinked in the tradition and history of the U.S. This conservative understanding led to the aforementioned result in Hardwick in 1986. In a 5:4 decision, the prosecution of homosexuality was declared constitutional, because such a right was not anchored in U.S. history or tradition, nor in the understanding of liberty - and thus not part of the right to privacy. This line of reasoning is now used by Justice Alito in Dobbs. The right to obtain abortion, he argues, does not arise from the Constitution because it is not "deeply rooted in the nation's history," (p. 5 with reference to Washington v. Glucksberg, 1997).

This is an unfortunate step backwards in two respects: first, the Court is using a natural law and historically backward-looking interpretation of the right to privacy; second, the Supreme Court had been moving away from such a strictly historical interpretation of the right to privacy since Lawrence v. Texas (2003). A clearer and more consolidated definition of the right to privacy in the context of a free development of personality might have prevented such a departure from the line of jurisprudence that has existed for almost 50 years. For, as is already clear today, this legal regression is going to have immense consequences: For example, 14 states have no legal abortion providers. This disproportionately affects poor women and families who cannot afford to leave their state.

Feminist Resistance and Backlash

This development is particularly interesting (and/or tragic) in light of the fact that a movement for reproductive rights and justice is spreading at the international and national level. This movement understands abortion, on the one hand, as a health service and, on the other hand, positions it in the context of different rights. UN committees, the WHO, as well as the European Parliament have repeatedly emphasized the importance of access to abortion and the fundamental nature of reproductive freedom.

At the same time, social movements have liberalized abortion laws in countries such as Argentina, Mexico, and Ireland (although barriers to access remain). In contrast, the tightening of laws in Poland and in the U.S. reflects a growing backlash against feminism. Especially the current events in the U.S. expose the constant fight against the right to have an abortion and to control their own body. It is clear, that Anti-abortion activists in the U.S., in Europa and elsewhere will not rest. Only a social rethinking of abortion, supported and reflected by the legal system, promises long-term security for a pregnant people and their right to privacy. As long as abortions are not accepted, at least in principle, as a health service, pregnant people will always have to expect that the "granted access" to abortion might also be "taken away".