Privacy and the Body: Privacy International’s response to the U.S. Supreme Court’s attack on reproductive rights

The relationship between privacy and access to abortion care

In 1973, in the state of Texas, it was a criminal offence to “procure or attempt” an abortion except if the purpose was “saving the life of the mother.” This law was enacted in 1854 by the Texas state legislature, and was part of a wave of provisions criminalising access to abortion care that was gaining ground across the U.S in the mid-1800s. It is worth highlighting that these laws were being passed at a time when women in the U.S. did not have a constitutional right to vote – their status as autonomous, equal citizens was still denied at law.

In the century between 1854 and 1964, social movements for women’s liberation and equality, which often intersected with the civil rights movement, won hard-fought battles to establish legal recognition of women’s equality, autonomy, and inherent dignity in the U.S. In 1973, a woman challenged the Texas law criminalising abortion before the Supreme Court of the United States (“SCOTUS”, or the “Court”), in the landmark case, Roe v Wade. The Court held that the right to personal privacy – a right protected by the U.S Constitution’s Bill of Rights – “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Thus, “in the first stages of pregnancy, the government could not control a woman’s body or the course of a woman’s life.”The Court finally recognised that the promise of liberty and equality for all, as guaranteed by the U.S constitution, would never be fulfilled for anyone who has the capacity to become pregnant in the absence of fundamental rights which shield the private sphere of reproductive autonomy from government control.

Background

While Roe was the first case in which SCOTUS recognised a constitutional protection for abortion in the early stages of pregnancy, it was building upon on a much broader set of decisions and legal developments establishing the remit of the right to privacy in the U.S. in the late 19th and early 20th centuries. The right to privacy is not explicitly referred to in the U.S. Constitution, but it is now well established that it is an ‘unenumerated’ (read ‘implied’) right that is protected by the Constitution because it underpins and enables core, ‘enumerated’ (read ‘express’) constitutional rights. In the U.S., the right to privacy generally protects individuals from excessive state control over core aspects of their lives; thus, the Court has found that it enables the right to freedom of speech; it is also fundamental to the right to be free from unreasonable “searches and seizures” by the government and from arbitrary government intrusion into one’s home, as well as the right to be free from self-incrimination, and finally, the fundamental right to personal liberty.

These rulings laid the foundation for a notion of privacy that can be accurately described as “fundamental-decision privacy:”

More than any other form of privacy born of the twentieth century, [fundamental-decision privacy] […] was the direct by‐product of technological advances, which created a sphere of personal choice never before imagined by earlier generations of Americans… [The question was], ‘Who gets to make this fundamental decision; is it me or is it the government?’ This significant question mark is what led to anguished battles over issues … relating to contraception, abortion, homosexuality, the "right‐to‐die" and other volatile subjects.… It required an immediate reassessment, a clarification of the existing social contract embodied in the Constitution, as citizens and government sought to determine for the first time whether certain fundamental decisions…fell within the sphere of personal autonomy protected by the word ‘liberty’ in the Constitution.

‘Fundamental-decision privacy’ is essential to liberty and equality. In Roe v Wade, and later, in Planned Parenthood v Casey, the Court held that the right to personal liberty guaranteed a sphere of personal privacy, or personal autonomy, which governments and state legislatures cannot invade with their legislation. Decisions which directly impact the core of an individual’s personhood, dignity, and future, must be shielded from excessive exercises of state power: “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life" (Planned Parenthood v Casey, 851 (n18)). To be sure, this includes the right to reproductive autonomy, just as it includes protections from government intrusion into private choices about family matters, including child rearing, intimate relationships and procreation.

In our work, we have consistently emphasised that the human right to privacy encompasses reproductive autonomy, including the right to access safe abortion care. We are neither the first nor the last to hold this view. Safe abortion care is a fundamental human right, and it both relies on and expands the fundamental right to privacy.

The United Nations Human Rights Committee (“UNHRC”) recognised that there is a human right to access safe and legal abortion in 2005 in the case of K.L v Peru. The UNHRC adopted the position that the State’s “refusal to act in accordance with [the complainant’s] decision to terminate her pregnancy” (K.L v. Peru, paras. 6.1 - 7) was a violation of her right to privacy under article 17 of the International Covenant on Civil and Political Rights (“ICCPR”) and a violation of her right to not be subjected to inhuman and degrading treatment (ICCPR article 7)(K.L v. Peru, para. 7). In this case, the complainant found out that the foetus she was carrying was ‘anencephalic’ (suffering from a serious birth defect in which the foetus does not form parts of its brain or skull, a condition that is invariably fatal). However, since this condition did not technically threaten the woman’s life, the hospital refused to terminate the pregnancy, acting against K.L’s decision and the recommendations of multiple doctors. The hospital cited the fact that to do so would be a punishable criminal offence. K.L, who was 17 at this time, was forced to give birth to an anencephalic baby, who survived for only four days. (K.L v. Peru, para. 2.6).

The impact of the decision in Dobbs v Jackson Women’s Health on the human rights to privacy, reproductive autonomy, and liberty

The Supreme Court Justices who constituted the majority in Dobbs v Jackson Women’s Health made an unprecedented decision to rip away existing constitutional protections around the right to terminate a pregnancy in its early stages. By overturning Roe v Wade, the Court concluded that the right to abortion could not be constitutionally grounded in the right to privacy. In the majority’s view, to justify a right to access safe and legal abortion through the right to privacy, or “a broader right to autonomy” would “license fundamental rights to illicit drug use, prostitution, and the like”(Dobbs, 45). Thus, the Court decided that one of the most intimate, life-defining experiences that a person may face is not ‘private’ enough to merit constitutional protection from government intrusion. The majority in Dobbs argued that reproductive rights, and specifically, the right to access safe and legal abortions, should be carved out of the constitutional protections for fundamental-decision privacy. Hiding behind a thin veil of originalism, and an even thinner conception of liberty, the majority in Dobbs argued that “the right to make and implement important personal decisions without governmental interference” does not include a woman’s right, to “control her body and the path of her life” (Dobbs, 45).

To justify this, the majority in Dobbs emphasises that the aim of overturning Roe is simply to “return to the people” the right, or “liberty” to decide whether or not access to abortion care should be legal. The irony is that in appealing to the “peoples’ liberty” to choose whether access to abortion care should be legal, the majority in Dobbs deliberately erases an individual freedom which would logically precede collective decision-making on contentious moral issues: this is the individual’s right to protect their private sphere of bodily autonomy, personhood, and their most intimate choices.  The core of the issue, then, is that the right to privacy - which the Justices accept is a fundamental aspect of liberty - is stripped and emptied when applied to the specific circumstances of a person with reproductive functions.

As the opinion of the dissenting justices in Dobbs soberly acknowledges, the result of this decision is that “across a vast array of circumstances, a state will be able to impose its moral choice on a woman and coerce her to give birth to a child” (Dobbs, Breyer, Sotomayor and Kagan JJ, dissenting, 3).

The seismic consequences of Dobbs do not stop there. Indeed, the ruling goes as far as to suggest a new definition of privacy. In its analysis of judicial precedent, the majority ventures that Roe conflated two “very different meanings” of privacy: on the one hand, “the right to shield information from disclosure” and, on the other, “the right to make and implement important decisions without governmental interference” (Dobbs, 48-49).

A departure from established human rights standards

Privacy as a right to make and implement important decisions without governmental interference

Contrary to the U.S. Supreme Court’s position in Dobbs, internationally, the protection of personal information, broadly referred to as informational self-determination or informational privacy, is only one dimension of the right to privacy. This much has been recognised by multiple courts around the world, including the European Court of Human Rights, the Indian Supreme Court, the Jamaican Supreme Court, the Kenyan High Court, and the Judicial Yuan of Taiwan.

The European Court of Human Rights, which sets legal precedent for the forty-six member states of the Council of Europe,  conceives of  “private life” as a broad term not susceptible to exhaustive definition, which encompasses values ranging from personal wellbeing and dignity to self-development and self-determination. The Inter-American Court has similarly,  repeatedly asserted that the sphere of privacy is characterized by being exempt from and immune to abusive and arbitrary invasion or attack by public authorities. These Courts understand the right to privacy to be broader than exercising control over the disclosure of one’s personal information.

Abortion as a key component of the right to privacy

The decision in Dobbs thus weakens the fundamental rights to liberty and privacy for people in the U.S., while also widening and deepening the gap between fundamental rights in the U.S. and international human rights law. The UN High Commissioner on Human Rights, Michelle Bachelet, responded to the ruling in Dobbs v Jackson Women’s Health by stating that, “access to safe, legal and effective abortion is firmly rooted in international human rights law and is at the core of women and girls’ autonomy and ability to make their own choices about their bodies and lives, free of discrimination, violence and coercion.” As early as 1995, the U.S. adopted the Beijing Declaration which explicitly states that “the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health.” This is commonly understood as the human right to respect for bodily integrity. More recently, the UN Human Rights Committee has made it clear that in accordance with the right to life as protected by the ICCPR:

Although State parties may adopt measures designed to regulate voluntary termination of pregnancy, those measures must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the Covenant. Thus, [...] restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering that violates article 7 [the right to freedom from torture and inhuman treatment] … discriminate against them or arbitrarily interfere with their privacy.

As a result of the Dobbs decision, UN human rights experts have argued that the Court, “completely disregarded the United States’ binding legal obligations under international human rights law.” This was detailed in the UN mandate holders’ intervention in the Dobbs case itself – one of over 50 amicus briefs submitted to the Court – “[t]he right to privacy under ICCPR Article 17 encompasses women’s reproductive autonomy." The intervention goes on to state that the UNHRC has found violations of the right to privacy in every case before it when the State interferes with reproductive decision-making or abortion access, exemplifying the strong connection between the right to access safe abortion care and the right to privacy.

By way of example, the overlap of the right to privacy and access to safe abortion care was re-stated by the UNHRC as recently as 2017.  In two cases brought by the Centre for Reproductive Rights, Mellet v. Ireland and Whelan v. Ireland, two women whose pregnancies involved a fatal foetal impairment were denied safe abortion care in Ireland and forced to undertake abortions abroad. In two separate landmark decisions, the UNHRC concluded that there had been an interference with the claimants’ right to privacy because the State party had prevented the women from terminating their pregnancies in Ireland. The UNHRC, reflecting on both cases, stated that this constituted “an intrusive interference in [the women’s] decision as to how best to cope with [their] pregnancies, notwithstanding the non-viability of the foetus” (Whelan, para. 7.9). This interference was unreasonable and arbitrary, and therefore unjustified. The fact that the women had sought and received safe abortion care elsewhere did not exonerate Ireland from its human rights obligations. The Committee noted, in relation to one of the applicants, that the need to travel abroad to terminate her pregnancy had significant negative consequences which could have been avoided if she had been allowed to terminate her pregnancy in Ireland. These reflections could easily apply to individuals seeking to cross state lines to procure abortion care in the United States.

At a similar international level, grounding of the human right to safe abortion care in the fundamental rights to privacy, liberty, equality, autonomy, and dignity was recognised in 1979 by every state party to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Article 12 of CEDAW includes the right to bodily autonomy. Article 16(e) specifically protects women’s and girls’ sexual and reproductive freedom. Notably, the Inter-American Court has also noted that the right to private life is linked to “reproductive autonomy” (Artavia Murillo v. Costa Rica, para. 146).

The European Court of Human Rights (“ECtHR”) has also approached abortion cases from a privacy perspective, and has made it clear that the human right to privacy, “is a broad concept which encompasses, inter alia, the right to personal autonomy […] [and] concerns subjects such as gender identification, sexual orientation and sexual life, [and] a person’s physical and psychological integrity, as well as decisions both to have and not to have a child or to become genetic parents” (A, B, and C v. Ireland, para. 212). The ECtHR also asserts that “the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy” (R. R. v. Poland, para. 181). It is noteworthy that the ECtHR does not recognise a right to abortion. However, in cases where the ECtHR has assessed whether specific laws restricting access to safe abortion care violate the right to privacy, it has made it clear that, in each case, there will be a need to weigh the applicant’s right to privacy against the competing rights of the foetus, to the extent that the latter are recognised by the domestic law of the defendant State. As the examples above show, Dobbs brings the United States out of step with global human rights law interpretation and practice.

Looking forward: we will continue to fight

Roe v Wade, and the pivotal cases which followed it, properly established that the right to privacy shields people’s bodies from excessive state power. It acknowledged protecting a private sphere of bodily autonomy from majoritarian power is fundamental to the protection of liberty, and the inherent right to determine the course of one’s life. No state or legislature should have the authority to “wrench” the right to reproductive autonomy from people who have the capacity to become pregnant by prohibiting or criminalising safe abortion care. As incisively articulated by the dissent in Dobbs, “to allow a State to exert control over one of ‘the most intimate and personal choices’ a woman may make is not only to affect the course of her life, monumental as those effects might be. It is to alter her views of herself and her understanding of her place in society as someone with the recognised dignity and authority to make these choices” (Dobbs, Breyer, Sotomayor and Kagan JJ, dissenting, 52).

The article with full references is attached.