“There’s gonna be a meter on your bed that will disclose what everybody knows.”
In Roe v. Wade, Justice Blackmun wrote, “The Constitution does not explicitly mention any right of privacy.” He notes, though, that, for at least a century, the Supreme Court has recognized that a right of personal privacy does exist under the Constitution. He cites decisions regarding marriage, procreation, contraception, family relationships, child-rearing and education as elucidating this Constitutional right to privacy.
In his draft decision that would eliminate any constitutional guarantees of a woman’s right to terminate a pregnancy, Justice Alito claims that this would be limited to abortion only and would not have implications for other privacy protections. He writes, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” (p62) Earlier in that paragraph, however, he tips his hand as to his true agenda. He cites cases relating to homosexual activities, gay marriage, and contraception as the sort of things that this decision absolutely does not apply to.
But it does. If there is no constitutionally protected right to privacy, then the basis of those decisions disappears as well. Alito’s logic makes clear that all such decisions should properly be decided “by citizens trying to persuade one another and then voting.” (p6)
Leonard Cohen predicted the death of privacy. Everybody knows, he sang, that we will soon be forced to disclose what goes on in domains that ought to be private - our bedrooms and doctors’ offices.
Roe v. Wade recognized the need for a balance between legitimate privacy interests and the interest of the state in protecting fetal life. The boundaries of such regulation are constantly being renegotiated.
Homosexuality used to be considered a psychiatric disease. Debates about whether to de-medicalize such behavior polarized the American psychiatric community. Many orthodox psychiatrists and psychoanalysts “viewed the deletion of homosexuality as a scientifically indefensible response to gay pressure, as a capitulation to mob action, and as a sad reflection of the temper of the times.”
Homosexuality also used to be a crime. Debates about decriminalizing sodomy continued into the 21st century and were only struck down by the Supreme Court in 2003.
These are recent debates. We thought they were settled. Clearly, they are not.
Alito’s reasoning has implications for all these debates. He would assert that, if the Constitution does not specifically mention an activity, then there can be no constitutional protection for that activity.
Our right to privacy will soon depend upon the will of our gerrymandered state legislatures.