Back in 1789, John Adams and others forming the new United States recognized a head-scratching potential issue with the yet-to-be-ratified First Amendment and other state constitutional provisions like it: If language promised broad press and speech freedoms, what did that mean for publishers who might reveal “instances of male conduct”? What if a newspaper dared to share those embarrassing and reputation-shredding times when politicians acted in randy and immoral ways?
William Cushing, a man who’d soon become one of the very first Justices on the U.S. Supreme Court, suggested in a letter to Adams that it might well be the man who was protected under the law, not the publisher of such information. “My question is this,” Cushing wrote, referring to language championing the importance of the freedom of the press. “Whether it is consistent with this article, to deem & adjudge any publications of the press, punishable as libels, that may arraign the conduct of persons in office, charging them with instances of male conduct repugnant to the duty of their offices & to the public good & Safety;—when such charges are supportable by the truth of fact?” “Doubtless,” he wrote, the liberty of the press “may & ought to be restrainable” in certain cases.
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Adams agreed. “You may easily conceive a Case, when a Scandalous Truth may be told of a Man, without any honest motive, and merely from malice,” he replied to Cushing. “[I]n Such a Case, Morality and religion would forbid a Man from doing Mischief merely from Malevolence, and I thought that Law would give damages.” Revealing instances of male conduct in print or otherwise without “Some just Cause for publishing” would, he suggested, be punishable despite whatever freedom of the press might be guaranteed.
The two men didn’t use the word privacy and they didn’t say specifically that the sexual privacy interests of men should generally trump other constitutional interests, but that was precisely the uptake of their back-and-forth. Such interests were of course worthy of protection even in a country built on speech and press freedoms.
Nearly 250 years later, that’s newly relevant. Because in overturning Roe v. Wade and rejecting constitutional protection for a woman’s right to choose abortion, the Supreme Court has now made clear that the historical attitudes of the men who framed and ratified the Constitution long ago will control the extent of privacy rights today. To quote the majority opinion in Dobbs v. Jackson Women’s Health Organization, the only sorts of privacy interests that can qualify as fundamental rights under the Constitution are those found in the text of the Constitution or “deeply rooted in the Nation’s history and traditions.”
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Since privacy is not mentioned in the Constitution, abortion’s claim to protection then hinged on history. The Court chided its predecessors in Roe for finding fundamental constitutional protection for abortion based on a contemporary recognition of the profound personal stake of women in decisions about whether to carry a pregnancy through childbirth. Making such judgments about the extraordinary interests of women smacked too much of extra-judicial policymaking, the Court scolded. Only the validation of history could legitimate the enforcement of a non-textual constitutional right like the right of privacy.
And history—evidenced by the views of the framers and the laws of their day—did not look favorably on women’s right to make their own decisions about a pregnancy. “[A]n unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law,” the majority wrote.
All that was why women lost what the courts had recognized for a half century as their right to privacy in the abortion choice.
But that other sort of privacy—the one discussed reverentially at the dawn of the nation by Adams and Cushing, the one that seemingly protected men at the start—was not lost in Dobbs. There, the majority noted that “the right to shield information from disclosure” was a “very different” sort of privacy, not implicated in the Court’s rollback of constitutional autonomy rights.
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The prioritization of the former goes well beyond any discussion between the founders. Consider that in the early 1800s, one court protected a man’s love letter. “How many serious things, proper to be communicated in the privacy of one’s correspondence, are unfit for the public eye,” that judge asked rhetorically. In 1845, the Supreme Court suggested that to say that “a man” had “the itch” (which is what they called sexually transmitted infections back then), even if true, was a legal wrong because it was scandalous and men deserved better: “If we look to the position of men in common life, we see the law drawing providently around them every security for their safety and their peace,” the Court wrote. A famous law review article titled “The Right to Privacy” was published in part to protect Grover Cleveland’s privacy interests in his dalliances and to keep journalists away. And on and on.
It’s no wonder that the Restatement of Torts, a highly influential legal treatise of sorts still in use today, summed up the law this way in 1977: privacy interests protect a number of things, including “most details of a man’s life in his home, and some of his past history that he would rather forget.” The italics are mine, but the choice of language is not.
In short, the solicitude of the framers and our “deeply rooted” legal traditions for the privacy interests of men stands in notable contrast with the glaring absence of solicitude for the privacy interests of women in the Supreme Court’s recent decision in Dobbs.
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This is what the dissent in Dobbs pointed out, that those in charge of such things in the early days and even more recently gave little attention to women’s privacy interests in sexuality and pregnancy and such because they were in fact all men. It was men who wrote the Constitution and the laws and the court opinions and even mainly, in 1977, the Restatement.
Ultimately, then, the contrast between the keen sensitivity that long-ago generations of male framers showed for male privacy interests and what the Dobbs majority found to be their ready tolerance of government interference with the private choices of women underscores the peril of looking to past generations—especially past generations of men alone—in defining the scope of constitutional rights for all today.
July 16, 2022 at 04:39PM Amy Gajda