Love And Death
Authors: Rosen Jeffrey 
Published: November 2023

At the beginning of the twenty-first century, the most hotly contested questions in American courts involve the right to privacy. Abortion, sodomy laws, and gay marriage: these are the issues that roil judicial confirmation hearings and inflame interest groups on both sides of the political spectrum. It is now impossible to be confirmed to the Supreme Court unless you acknowledge that the Constitution protects some right to privacy—when Robert Bork denied this during his confirmation hearings in 1987, his fate was sealed. But although everyone from Chief Justice John Roberts to Justice Ruth Bader Ginsburg acknowledges that the Constitution protects privacy in some form, there is broad disagreement about what kind of privacy the Constitution protects. When the Supreme Court, in Roe v. Wade, announced that the “liberty” guaranteed by the Fourteenth Amendment includes a right to privacy broad enough to include the right to choose abortion, it was widely criticized by both liberal and conservative scholars for failing to offer convincing constitutional arguments to support its conclusion. I am among the pro-choice critics of Roe: although personally devoted to privacy, and convinced that restrictions on abortions represent serious restrictions on the autonomy and equality of women, I have always had difficulty understanding how the Court in Roe derived a broad right to privacy in the way that it did. Since more than two-thirds of the country has long opposed restrictions on early-term abortions, I also believe that the right to choose would be protected by Congress and the states even if Roe v. Wade were not on the books. In this chapter, I offer a challenge to liberals who believe that Roe is sacrosanct, arguing instead that it was a political and constitutional mistake when it was first decided, largely because of its aggressive unilateralism. The truth is that sweeping abstractions about privacy tend to obscure the differences between a range of very different values that privacy protects, including dignity and personal autonomy, neither of which is protected explicitly in the Constitution. The Fourth Amendment prohibits unreasonable searches and seizures of “persons, houses, papers, and effects” and has traditionally guarded the privacy of the home by enforcing rights of private property. But abortions seldom take place in the home, and restrictions on abortion arguably violate a woman’s autonomy and equality, rather than her sense of spatial privacy. The American legal tradition has always been more concerned about liberty and autonomy than personal dignity but has nevertheless struggled to find constitutional arguments for protecting these values in the absence of a national consensus about what they entail. Reaffirming Roe v. Wade in 1992, Justice Anthony Kennedy declared that the Constitution includes expansive protections for personal autonomy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” he wrote. “Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” This paean to liberty, which Justice Scalia would later ridicule as the “sweet-mystery-of-life passage,”