SCOTUS Prepares Attack On The Right To Privacy

I referenced last Wednesday’s horrendous Supreme Court decision that declared that New York Governor Andrew Cuomo’s orders to restrict religious gatherings in order to fight the spread of the pandemic to be an unconstitutional violation of the freedom of religion. The Court’s decision will, of course, mean that more Americans will needlessly die from COVID. But it also sets up the Court for a potential full-scale assault on the right of privacy in this country.

There is no specific right to privacy in the Constitution. The First Amendment gives the right to privacy in religious beliefs. The Fourth Amendment protects the individual from unreasonable search and seizures, although that right has been seriously eroded over the years, especially since the onset of the war on drugs and the war on terror. The Fifth Amendment provides the protection of personal information through the legal prevention of self-incrimination. The Ninth Amendment provides for other rights not specifically enumerated in the prior eight amendments. In addition, the 14th Amendment extended the Bill of Rights to the individual states, declaring “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. Since its passage, the 14th Amendment has long been interpreted as providing the right to privacy involving procreation, child-rearing, marriage, and medical treatment.

In their majority opinions, both Justice Gorsuch and Justice Kavanaugh criticized Justice Roberts, who joined the liberals in dissent in this case, for his citing the precedent of Jacobson v Massachusetts in similar cases involving religious freedom challenges to COVID restrictions that the Court had denied before Amy Coney Barrett was rushed through to take Ruth Bader Ginsburg’s seat. The Jacobson case involved a challenge to a small pox vaccination requirement back in 1905. Gorsuch, in particular, accused the Chief Justice of justifying the prior decisions by reaching “back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts” and having “mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic”. But, as Roberts points out in his dissent, the prior decisions cited just one sentence from the Jacobsen decision which states “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect”, adding that “the actual proposition asserted should be uncontroversial”.

But it is Gorsuch’s attack on the Jacobson decision that is more disturbing. Gorsuch writes, “Mr. Jacobson claimed that he possessed an implied ‘substantive due process’ right to ‘bodily integrity’ that emanated from the Fourteenth Amendment…This Court disagreed. But what does that have to do with our circumstances? Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise”.

As Larry Tribe and Michael Dorf note, the phrases “substantive due process”, “bodily integrity”, and “penumbras” are “are a legal dog whistle”. Substantive due process is the doctrine that allows courts to protect certain fundamental rights even if they are not specifically mentioned in the Constitution. Bodily integrity is the the doctrine that individuals have autonomy over their own bodies and that government intrusion into the physical body is unconstitutional. Finally, penumbras refer to the rights implied by the constitution, legislation, or governmental rules. Tribe and Dorf continue, “Each of those terms…is closely associated with Supreme Court precedents recognizing a right to privacy that encompasses contraception, abortion, child rearing, choice of sexual partners, control over one’s intimate private information and determination of how one faces death. Religion, Gorsuch clearly implied, is a genuine constitutional right enshrined in the text, whereas these other rights are just made up and not entitled to similar respect”.

Tribe and Dorf note the irony, or hypocrisy depending on your view, of Gorsuch’s comments. It is only through the 14th Amendment and the doctrine of substantive due process that the states themselves are bound to the Bill of Rights. The 1st Amendment only prevents Congress from prohibiting the free exercise of religion, not the individual states. And if you are going to accept the reading of the 14th Amendment that the states are bound by the Bill of Rights, then you must also accept the reading of the Ninth Amendment that states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”. One of those unenumerated rights that exists under the penumbra of constitutional rights happens to be the doctrine of bodily integrity. Jettisoning the doctrine of bodily integrity would technically allow states to ban contraception or even revive policies of forced sterilizations that we saw in the beginning of the 20th century. That is especially concerning considering the reports about immigrant detainees in Georgia being  subjected to forced hysterectomies without their consent or understanding.

As Tribe and Dorf summarize, if Gorsuch truly believes there are no unenumerated rights, then there is no right to privacy. They write, “If there are no unenumerated rights, then there is no right to privacy of any sort — a truly radical position espoused by the late Justice Antonin Scalia, joined by Justice Clarence Thomas, in a 2011 case”. And, based on Justice Alito’s rant at the Federalist Society where he attacked abortion rights, gay marriage, and gun control, it appears he too is interested in rolling back certain privacy rights.

Perhaps, Gorsuch does not intend to go that far. Kevin Drum muses that this decision is hardly a harbinger of an attack on privacy but instead “the conservative justices said only that religious gatherings should be considered ‘essential’ and therefore regulated in the same way as other essential activities”. That may be true of the Justices who chose not to write opinions in this case. However, that is not how the concurring opinions actually argued the case. And Gorsuch’s focus on Jacobson and attacks on the very pillars of the right to privacy indicate that he believes that any unenumerated rights are clearly inferior, even subservient, to rights specified in the Constitution. With Thomas and Alito, that would make at least three Justices skeptical of a constitutional right to privacy.