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The Privacy Advisor | Leaked Roe v. Wade opinion sparks right-to-privacy concerns Related reading: Van Buren: The implications of what is left unsaid



The Supreme Court of the United States is front and center this week after Politico reported on a leaked initial draft majority opinion by Justice Samuel Alito on the 1973 Roe v. Wade decision. The Supreme Court Tuesday confirmed the leaked draft is authentic. However, Chief Justice John Roberts said the decision on the case is not yet final. 

The draft opinion, in which Alito states that "Roe was egregiously wrong from the start," would repudiate the guarantee of federal constitutional protections of abortion rights and a related case — Planned Parenthood v. Casey from 1992. According to Politico, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted with Alito after hearing December's oral arguments. 

If adopted, the decision would back a Mississippi law in which the state is attempting to ban most abortions after 15 weeks of pregnancy. 

Though a woman's right to an abortion is the central issue in the case, many lawmakers and scholars warn the ruling could undermine Constitutional rights to privacy, as recognized by Supreme Court jurisprudence. Speaking to the press Tuesday, U.S. President Joe Biden said, "I hope there are not enough votes for it. ... It means that every other decision involving the notion of privacy is thrown into question." 

IAPP President and CEO J. Trevor Hughes, CIPP, said, "Privacy pros should be clear on this point: The leaked decision, if it stands, is a privacy decision. Rolling back over 50 years of jurisprudence on privacy rights is, in a word, shocking." 

Several Supreme Court cases set precedent for the eventual Roe decision, and in turn, Roe set precedent for many others since, including Lawrence v. Texas in 2003, which involved sexual privacy in one's home, and Obergefell v. Hodges in 2015, which used the right to privacy and the equal protection clause to legalize same-sex marriage. 

Other cases involving the right to privacy penumbra include Griswold v. Connecticut, which prevents the government from restricting married couples' right to buy contraceptives, and Loving v. Virginia, a 1968 case that threw out laws banning interracial marriage. 

UNH Professor of Law Tiffany Li told The Privacy Advisor, "Yes, if the court strikes down Roe, this could impact many cases involving privacy rights. Rights to abortion, contraception, same-sex marriage and more could all be at risk now." 

Li also said abortion "in U.S. law is intimately connected with privacy. The theory is that we protect reproductive freedom as an extension of privacy and bodily autonomy." She added, "There's no abortion right in the Constitution, but there's arguably no privacy right in the Constitution either. Making decisions on what rights are 'deeply rooted in history' is concerning when so many rights were not explicitly written in the Constitution." 

"Privacy, civil rights and more are at stake," she said. 

U.S. Rep. Jamie Raskin, D-Md., who is also a constitutional scholar, said, Roe "hinged its case on Griswold v. Connecticut, a 1965 decision," and involved a due process liberty clause that includes "a right to privacy over intimate decision-making." He added that Alito's argument, "presumably," could be applied to the right to privacy in contraception. He noted that the term the "right to privacy" did not appear in the Constitution "so this would appear to be an invitation to have a 'Handmaid's Tale'-type anti-feminist regulation and legislation all over the country." 

However, in his now-leaked draft, Alito argues, "We emphasize that our decision concerns the constitutional right to abortion and no other right. ... Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." 

According to the Politico report, liberal justices on the court "seem likely to take issue with Alito's assertion in the draft opinion that overturning Roe would not jeopardize other rights the courts have grounded in privacy, such as the right to contraception, to engage in private consensual sexual activity and to marry someone of the same sex." 

On Twitter, Alexandria Ocasio-Cortez, D-N.Y., warned that the Supreme Court "isn't just coming for abortion — they're coming for the right to privacy Roe rests on which includes gay marriage (and) civil rights." 

The Washington Post published an "Answer Sheet" in Roe v. Wade. Notably, "Jane Roe" was the pseudonym for the plaintiff, Norma L. McCorvey, to help protect her privacy.  

The final decision on the Mississippi case is expected in the next two months. 

Photo by Berta Ferrer on Unsplash

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