ArticlesVolume 3, Number 1 (1992)

Redescribing Privacy: Identity, Difference, and the Abortion Controversy

Abstract

It has become quite fashionable to attack the idea of a constitutional right to privacy as well as the specific claim that a woman’s decision whether or not to terminate a pregnancy falls within the province of such a right. In the present context, where many feel that Roe v. Wade has been eviscerated, not a few are tempted to lay the blame at the door of the privacy justification underlying the Court’s decision of 1973. While the privacy justification has, at times, been interpreted inadequately, I remain unconvinced that it is because of the alleged intrinsic flaws of privacy analysis that Roe was a poor decision, fated to be weakened or overturned. Further, I do not believe that some other justification, be it an equal protection argument, one appealing solely to the freedom of conscience, or one based exclusively on the idea of bodily integrity, could serve as an adequate normative substitute for privacy rights in this domain. Nor do I believe that the “normal political process,” or reliance on the community’s “shared values,” would serve women better than a constitutional right to personal privacy.’

The right to privacy involved in Roe and its progeny affirms the principle that every individual woman, defined independently of a family frame of reference, is the bearer of constitutional rights that protect her moral autonomy, the inviolability of her personality, and her identity (which is bound up with her bodily integrity), as her own. Each of these is at stake when a woman faces an unwanted pregnancy. I shall argue below both that a constitutionally protected right to personal privacy is indispensable to any modern conception of freedom and that without reproductive freedom, secured in part by such a right, women are deprived of the good that privacy rights are meant to, and should, protect for all of us. I will also argue that women have not received full protection of their reproduc- tive freedom, not because they have been granted privacy rights, but because these rights have been misinterpreted and/or willfully restricted.

In what follows, I consider two recent challenges to the privacy justification for abortion rights, both of which target what are taken to be its conceptual and normative presuppositions, albeit from opposite points of view. These challenges provide a useful context for rethinking privacy because they unintentionally reveal the importance of privacy rights to women, as well as the paradoxes such rights entail. The first of these cri-tiques, articulated by feminist legal theorists favoring equal protection arguments , charges that privacy analysis reinforces an ideological, liberal model of the public/private dichotomy that has long been used to justify both gender inequality and private male power within the patriarchal family, along with exclusionary and discriminatory treatment of women outside the domestic sphere.