The impending retirement of Justice Kennedy and the Supreme Court nomination of Brett Kavanaugh mean that Roe v. Wade is once again making headlines. But this time, it’s not just abortion rights advocates who should be thinking about the future of that particular Supreme Court decision: It’s just as crucial to people who care about their freedom, autonomy, and privacy online.
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Privacy and Roe v. Wade
That’s because not only abortion rights but internet rights owe an enormous debt to the Supreme Court decision Roe v. Wade. It was in Roe v. Wade that Justice Harry Blackmun articulated privacy as the basis for abortion rights—laying the foundation not only for safe and legal abortion, but also for a new way of thinking about privacy that would inform the emergent internet.
In “A Justice Defined by a Ruling,” Henry J. Reske notes that Roe v. Wade
perhaps more than any single ruling, has enshrined in the American consciousness the notion of a right to privacy, or as Justice Louis D. Brandeis put it in the 1928 dissent to Olmstead v. United States, the “right to be let alone.” …Roe represents the completion of a quest begun by the Court in Griswold v. Connecticut in 1965 when it first sought to define a right to privacy.…Roe clearly established that there is a 14th Amendment due process right to privacy, a right that Blackmun, in the 7-2 ruling, extended to cover abortion.
The impact of this decision reached far beyond the legal status of abortion: it changed the conversations around both abortion and privacy. “Privacy was not absent from public discourse about abortion prior to Roe, but it looked nothing like the conception of privacy familiar to us in contemporary abortion politics,” Vincent Vecera wrote in the 2014 article, “The Supreme Court and the Social Conception of Abortion.” “Where reform advocates talked about privacy before Roe, they almost always talked about the privacy afforded any medical decision….The transformation of traditional medical privacy into novel legal conceptions of privacy—personal privacy, personal choice, and personal autonomy—began prior to and partially alongside the broader trend toward the de-medicalization of abortion.”
Roe v. Wade transformed American attitudes towards privacy as surely as it transformed the conversation around abortion. As Vecera observes, “The justices of the Supreme Court influence politics beyond their ability to execute policy.”
Privacy as a Constitutional Right
In the case of privacy rights, Roe v. Wade enshrined privacy as a constitutional right—but one that was left a bit hazy. “Judges as well as scholars assumed that there was such a thing as privacy and that it mattered,” David Alan Slansky writes in his 2014 article, “Too Much Information: How Not to Think About Privacy and the Fourth Amendment.” “[T]he legal debate was simply about how much and what kind of protection privacy received.”
That haziness notwithstanding, Roe v. Wade left Americans with the idea that privacy is something we can expect as citizens. There’s no better proof of that growing consensus than the 1987 Senate confirmation fight over Robert Bork, nominated by Ronald Reagan to the Supreme Court. Bork faced an immediate backlash for past statements in which he not only expressed his disdain for the Roe decision, but his skepticism about the very idea of a constitutional right to privacy.
“By the time Bork’s own five days of testimony were complete, it was utterly clear that his public image as an unyielding foe of constitutional privacy had become perhaps the single greatest negative in spoiling his chances for Senate confirmation,” David J. Garrow writes in “Privacy and the American Constitution,” which delves deeply into the Bork nomination and its aftermath. “[A]s any number of subsequent public opinion polls confirm, the American mass public has no doubt or hesitation whatsoever that the United States Constitution should be read to encompass a very basic, very fundamental, and very inclusive right to privacy.”
When Bork’s nomination collapsed, Reagan instead nominated Anthony Kennedy—yes, the Anthony Kennedy whose imminent retirement has pro-choice supporters worried about Roe again. As Garrow notes, Kennedy “carefully told the senators that he believed ‘that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage.’”
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A belief in a constitutional right to privacy was now a de facto requirement for a post-Roe Supreme Court nominee. But the debate over privacy was far from over.
First, the very fact that privacy came to the fore in the context of abortion arguably exposed the idea of a right to privacy to extra scrutiny and criticism from the right and left, and from both academics and lay people. Writing about “Privacy Without the Right to Privacy,” Scott A. Anderson notes that it is “commonplace to regard the concept of privacy as a mess, and to hold that significant work is needed to show its coherence as a concept, if it can be done at all. Some have also argued that there may not be a right to privacy, or that if there is, it must be much narrower than it has recently been construed.” As Garrow puts it, “there was a sense by the mid-1970s—especially, but not only, among scholars and judges opposed to the rulings in Griswold, Eisenstadt, and Roe—that the concept of privacy had been stretched too far in those cases.”
Second, the women’s movement quickly realized that privacy was a problematic basis for abortion rights, and tried to move the conversation beyond its nebulous foundation. In her article “Gender and Privacy in Cyberspace,” Anita Allen noted how much her early and influential writing on privacy was influenced by contemporary feminist scholarship on “the notion that men and women inhabit ‘separate spheres’ and that family homes, while ‘private,’ can also be oppressive.” As feminists increasingly critiqued the ideas of “public” and “private” as a false dichotomy that could be oppressive to women, privacy became a less and less appealing way of framing women’s right to control their own bodies.
If enthusiasm for Roe v. Wade’s version of privacy rights was fading in both legal and feminist circles, privacy itself faced a new influence in computerization and especially, in the nascent internet. As computers and networking made it possible to collect and process greater and greater volumes of data, the conversation on privacy started to shift from “decisional privacy” to “information privacy.” As Paul M. Schwartz writes in “Property, Privacy, and Personal Data,”
Information privacy can…be distinguished from “decisional privacy,” which, for example, was at stake in the Supreme Court’s decision in Roe v. Wade. The focus of decisional privacy is on freedom from interference when one makes certain fundamental decisions, including those concerning reproduction and child-rearing.” In contrast, information privacy is concerned with the use, transfer, and processing of the personal data generated in daily life.
In the post-Roe internet era, this is the understanding of privacy that has become predominant. “At the close of the twentieth century, a conception of privacy strongly around regulating the collection, processing and dissemination of information could still be described as novel,” Slansky writes. “[B]ut today it has taken over. Control over data flows has become “the cornerstone of our modern right to privacy.”
What Information Privacy Has To Do With Decisional Privacy
Yet the very notion of controlling data flows—the very notion of information privacy—is only available to internet users because of the groundwork laid by Roe. Abortion rights brought the idea of a right to privacy into the American mainstream; internet users have merely evolved and adapted that right.
But it’s a right that may now be in jeopardy, for the very reason the Bork example suggests: The notion of a right to privacy has always taken a lot of political heat. It doesn’t help that the recognition of a right to privacy emerged out of court decisions around abortion, contraception, obscenity, and sodomy — the four horsemen of the moral apocalypse as far as social conservatives are concerned. A Supreme Court that knocks down the idea of constitutional privacy rights can take down abortion and internet porn in one fell swoop.
Such a Court can take down just about every other aspect of online privacy, too: little things like knowing who can see where you’ve spent your money, or who can read your emails, or what your favorite social network is allowed to do with your posts. We’re so used to a public discourse based on a right to privacy that we have no way of talking about what our online boundaries would be if that privacy right were to disappear.
Here too we can learn from the tangled history of privacy, abortion, and the internet. The very reasons that Roe came in for criticism may give us a path forward. In “A Taxonomy of Privacy,” Daniel J. Solove notes that “[m]any commentators have argued that the language of privacy is inappropriate for decisional interference cases, since they primarily concern a harm to autonomy and liberty, not to privacy.”
But the very nature of the internet blurs the line between information privacy and decisional privacy—rendering the idea of privacy just as problematic online as it is in the case of Roe v. Wade. As Slansky notes, “how data is shared, aggregated, and used determines not just who gets targeted by advertisements but who gets hired and promoted, who can borrow money and on what terms, who is insured and at what cost, and who is detained, arrested, or deported.”
What starts out looking like an information privacy issue turns out to be a decisional privacy issue, because interference in data flows amounts to interference in decision-making: Whoever has access to your data can use it to make major decisions about your life. They can also use that data to manipulate your decisions. They can show you ads that alter where you decide to eat or shop. They can stream you music choices that will affect your mood and your online behavior. They can choose which social media posts you’ll see and shape who you’ll be friends with.
But it’s a moot point if we get a Supreme Court that disavows any commitment to privacy rights, abortion rights, or personal autonomy. As Marjorie Heins writes in her article on “Privacy and Anonymity at the U.S. Supreme Court,” “[t]here are political limits to what the courts can accomplish, and U.S. history shows that the Supreme Court is often not a strong defender of constitutional rights at times that matter most.”
That’s exactly why abortion rights supporters are worried about the impact of a Supreme Court shift at this particular moment in history. But if the history of Roe v. Wade tells us anything, it’s that anyone who cares about privacy—or more fundamentally, about personal autonomy—should share their fears.