Roe as an Extension to the Right of Personal Privacy

(Note: The following is more of musings more so than anything definitive. I am certain I overlooked details, so please feel free to criticize my work.)
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Thirty-five years ago marks the day the U.S. Supreme Court passed judgement on Roe v Wade. For the past 35 years, American women have utilized their right to privacy and have participated in legalized abortions. For the past 35 years, the issue of abortion and the government have polarized the population into two distinctive camps named by their members: pro-lifers and pro-choicers.

But what does this argument boil down to? Arguments about the beginning of life and the sanctity of life are pitted against arguments concerning individual privacy, freedom of thought, and sexual autonomy. Arguments of the health and welfare of the mother are issued by both sides. The situation becomes overburdening when sectarian motivations are entangled with secular mechanics. How does one make sense of all these arguments, their sources and motivations, and connect them into a logically coherent statement?

For Roe, the case ultimately pitted the interest of privacy granted by the combination of penumbra of the fourth, the complete ninth, and the complete fourteenth amendments versus the interests of the state. Certainly the state has a vested interest in the health of the mother and safeguarding potential life. Consequently, the individual certainly has the right from government interference and intrusion on private effects. A balanced medium must be sought between both parties of vested interests.

The Right to Privacy and Roe
An underlying philosophy of any constitution, whether it be state or federal, is summarized by a quote of Thomas Jefferson in an address concerning the reformation of the Virginian Constitution:

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment... laws and institutions must go hand in hand with the progress of the human mind... as that becomes more developed, more enlightened, as new discoveries are made, institutions must advance also, to keep pace with the times.... We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors.

Certainly, the Constitution is not a stagnant document but meant to be flexible with the ever changing power of social movements. This includes incorporating into the intentions of the present Bill of Rights any technology and knowledge that expands the venues address by the amendments and the text. It is with this spirit Roe and subsequent laws concerning abortion ought to be analyzed.

The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be iolated..." (emphasis mine). Though the Fourth is addressing precisely warrants of arrest, it was written with the common spirit of privacy from government intrusion into personal affairs. The technology of 1791, the year of ratification, did not include the luxuries of the 19th century telephone or the 20th century facsimile or the 21st century email. In order to initiate contact with an individual, you were forced to either be present or write a postal letter (concepts that escape my generation, I'm sure!).

Reading the Fourth in combination with the First ("Congress shall make no law...abridging..the right of the people peaceably to assemble") gives rise to the clear indication that the federal government may not, without due process, prevent a meeting between two citizens. But what of the mail system? The Supreme Court, with statement by Justice Fields, found in Ex parte Jackson (1878):

In their [Congress] enforcement, a distinction is to be made between different kinds of mail matter -- between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage, and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.

With the idea of letters being an aspect of a persons papers and requiring a warrant for seizure, the spirit of privacy from the federal government continued. Though such privacy became contracted in initial proceedings surrounded around wiretapping the telephone, Justice Louis D. Brandeis wrote an excellent dissent in Olmstead v. United States (1928):

Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them on any subject, and although proper, confidential, and privileged, may be overheard...

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the one most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

In summary, Justice Brandeis held that a literal reading of the Fourth detracts from the spirit of the motivations behind it. That is, an utter disgust of government intrusion without a justifiable cause. This spirit was born from the history of colonialism and the abuse of the Crown, including the writs of assistance. Simply because the manner in which such intrusion can occur does not exclude the concept of right to privacy engendered in the Fourth and subsequent elucidation from the Ninth ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.").

The precedent set by Olmstead centered around the location of the wiretapping. However, in the 1967, this precedent would be overturned in Katz v. United States, where Justice Stewart wrote: "The Fourth Amendment protects people, not places".

Certainly it can be charged that the right to privacy is not explicitly written in the Constitution. However, neither is the right to educate your child in either public, private, or parochial school nor is the right to study any foreign language or philosophical position of ones choosing. The entire idea of freedom of conscience is not explicitly written into the Constitution, yet it surfaces at the conjunction of the First and Ninth amendments. The federal government does not have the ability to censor or otherwise hinder the dissemination of information. Congress may no more ban a book than ban a complete school of thought. Yet this concept of freedom of thought or freedom of conscience is no more present in the literal texts than this right to privacy of which this essay is centered upon. This is why it is imperative to utilize fully the intentions of Madison's wording in the Ninth Amendment. Also, consider the text of the Tenth: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people" (emphasis mine).

Before Roe, another case came before the Supreme Court which expanded the concept of the right of privacy into distinctive zones. In Griswold v. Connecticut, Justice Douglas wrote: "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance...Various guarantees create zones of privacy." The case was concerning the criminalization of the usage and distribution of contraceptives. Justice Douglas argued that there is a both a right to privacy in the marital relationship and a right in assemblage with the medical practitioner or contraceptive distributor. The wording of the antiquated law gave rise to a possible scenario of the state issuing a warrant to search every marital bed for evidence of contraceptive usage. This situation grated with the current rend of the right to privacy granted by the penumbra of the Bill of Rights.

All this led, in part, to the decision in Roe. Justice Blackmun wrote the following concerning the general right to privacy in relation to terminating pregnancy (all emphasis mine):

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

With the idea that State intrusion does significant harm to the rights of the mother to her privacy, the majority found the criminalization of abortion unconstitutional. It is this right to privacy that transpires into the sexual autonomy desired by the women right activists that ought to be celebrated and championed. It is this fundamental right that ought to be protected with voice and fervor.

On this day, privacy won, and it will only be through the efforts of those who care for it to continue for years to come.