Privacy: dead and gone?

Is privacy dead? The United States Court of Appeals for the Third Circuit came close to deciding it was, in Planned Parenthood of Southeastern Pennsylvania v. Casey on 21 October 1991. [1] Pennsylvania's antiabortion law had been challenged for violating the privacy rights guaranteed to pregnant women under Roe v. Wade. [2] Upholding most of the state statute, the Third Circuit concluded that the Supreme Court's landmark 1973 decision is no longer the law of the land. Abstract constitutional principles may inspire intellectual debate, but they assume true significance only as they affect the outcome of cases. In recent years, the regulation of abortion appeared to be the only area in which the constitutional doctrine of privacy placed limits on the exercise of state regulatory authority. Other intimate activities--such as sexual relations not related to heterosexual union--were held not to be protected. [3] Nor were other medical procedures, such as decisions about life-sustaining treatment. Indeed, privacy had become such a narrow concept that neither the parties nor the justices mentioned it during the oral arguments in Cruzan v. Missouri Department of Health, nor did it appear when the Court handed down its opinion in that case in June 1990. Nonetheless, privacy has been relied upon by the Court in deciding the stream of abortion-related cases that have come before it over the past two decades. Even in his angry 1989 opinion in Webster v. Reproductive Health Services, in which he accused the plurality of being "deceptive," Justice Blackmun concluded that while the abortion rights recognized in Roe "are not secure," they do still "survive." [4] How, then, did a mere appellate court pronounce privacy dead? And was it right? The Casey decision arose from a challenge mounted by a group of abortion clinics against certain amendments (enacted by the state legislature in 1988 and 1989) to the Pennsylvania Abortion Control Act of 1982. A federal district court agreed with the plaintiffs that provisions requiring a particular "informed consent" process, spousal notice, and parental consent, as well as provisions establishing reporting and disclosure obligations for the clinics and the state, violated the Due Process clause of the Fourteenth Amendment. The Third Circuit reversed on all points except regarding spousal notification, which it agreed was unconstitutional. In some ways, Casey does not directly implicate Roe because the Pennsylvania statute did not ban abortion. Yet the plaintiffs argued that the restrictions placed on women's exercise of their right to choose an abortion were significant and were not justified by a compelling state interest. In ruling for the defendants, the court held there was no need for the state to establish a compelling basis for its restrictions because the Supreme Court no longer regarded a woman's choice for abortion as a fundamental right. The Pennsylvania Statute Several of the elements of the Pennsylvania law are similar to restrictions recently adopted in other states, such as Mississippi, North Dakota, and Ohio. For example, the statute mandates that physicians inform women contemplating an abortion about the nature and risks of the procedure and of alternatives (including carrying the fetus to term), as well as about the gestational age of the fetus. The physician or another counselor must also inform the woman that state programs provide assistance in paying for medical costs of having the child, that the child's father has a legal duty to assist financially, and that literature describing the fetus during development (and listing agencies that offer alternatives to abortion) is available from the state health department. Patient self-determination often seems to be the Holy Grail of bioethics. So statutory requirements mandating the disclosure of facts that could better inform patients' decisions might seem unexceptionable. …