We all know about the recent Supreme Court decision (Dobbs v. Jackson) that found that the U.S. Constitution does not protect abortion.
But what does that mean in terms of our right to privacy — a right that has been described as “the right to be let alone”?
Whether or not you agree with the right to abortion, you should be concerned with your right to privacy, a right that the Dobbs case repeatedly stated is not contained in the U.S. Constitution.
The right to privacy was first discussed in a 1928 Supreme Court opinion when the Court reviewed wiretapping of phones. If the government did not trespass on your property or read your mail, was it really a search?
That question was more fully answered when subsequent Supreme Courts concluded that the protections found in various amendments all implicitly generated a right to privacy. As a result, in the last 70 years, the constitutional right to privacy has for instance generated protection against searches of your phone calls and text messages, and searches of your medical records and bank information. Privacy also protects against disclosure of personal information; and recognizes an independence in making certain kinds of important decisions.
The protection against disclosure of personal details includes, for instance a private employee’s medical information that was sought by the government; a private person’s medical and financial information; a minor student’s pregnancy status; and one’s sexual orientation.
The right to make independent decisions about yourself, for instance, includes the right to choose your child’s education by either home-schooling or sending them to a private school. It protects against disclosure of membership in a constitutionally valid organization. The right to refuse compulsory vaccination is based upon this type of privacy right. Also, it is vital to a person’s ability to keep their family together without undue government interference. For example, in 1977, the Supreme Court relied on the right to private family life to rule that a grandmother could move her grandchildren into her home to raise them even though it violated a local zoning ordinance.
You may disagree with the Court’s 1973 Roe decision protecting early stage abortion — a lot of people do. But that decision was based upon a reasoned application of the privacy interest. Likewise, its reversal in Dobbs is based upon another reasoned review of privacy, and that new logic is what should be concerning you. The removal of a right is like playing Jenga: a block is removed, and will the structure collapse? And what about the next block?
The majority opinions in Dobbs repeatedly state that the right to privacy does not exist in the constitution. Why should that worry you? Because the scope of the privacy right has shrunk in an increasingly digital age when so much of our personal information is voluntarily exposed. In the last 20 years, the courts have struggled with redefining an outdated definition of privacy. Now the writing is on the wall that the right will be sharply diminished rather than redefined, because the right is not explicitly stated in the constitution and it is just easier to do so.
As a result, everyone with an interest will take further steps to test the protection, ranging from the investigative federal government to private companies tracking and selling your information.
Fortunately, unlike the U.S. constitution, the Alaska Constitution has an express right to privacy. But that will not stop the federal government or companies such as Facebook from throwing a broad net to capture intimate details or dictating your important decision making.
If you want your right to remain private – your “right to keep the government and businesses out of your home and bedroom” – you should fear that your right to privacy has just eroded, and you should fight to keep it intact.
Andy Haas is a Homer attorney for 31 years with a background in human rights and constitutional law.