When the Berger Court decided Rowe v Wade, the justification for it was in regards to the implicit right to privacy found in the 9th Amendment, not gender equality or in how to define the life of a fetus. These are obviously not unimportant questions in regards to abortion as these form the central points of public discourse on the permissibility of abortion, but they are not the questions answered when the decision to have an abortion in the United States was made legal and perhaps that’s an important thing to which we should revisit. All of this is not to say that there is not a legitimate interest that sometimes impedes on privacy (i.e. most violence occurs in private spaces rather than public) and that we should depoliticize interpersonal relations, but privacy always regards a question of power. Not only is it an issue of access to information about a person’s life, but it is a question of actionability on this information. For example, the Patriot Act was not vainly to exhibit the right to access to information (something surveillance paranoiacs should remember) but about the right to access information to guide responses to supposed threats. This is not to justify infringements on privacy such as the Patriot Act but to say that just invoking privacy is not enough, but it is important in determining whether the state is exhibiting power and if this exhibition is justified. These arguments are not emotionally satisfying I am aware but they are relevant especially given its legal history.
How does the right to seek an abortion protect privacy?
Much like Griswold v Connecticut, Rowe v Wade relied on a patient and her or his doctor having the right to make decisions as they see fit between them, independent of the public’s opinion of this, an essential premise on which liberal and minority rights are based (though they obviously can never fully escape this). Privacy is presumed in this case because the decision can be limited down to between a doctor and his or her patient, with no need for wider recourse in making the decision. The person seeking the service and the person providing the service are the only ones who have power or the right to information over the situation. Now, this extent of privacy can lead to coercion or exploitation (e.g. Kent Gosnell) but this is not unique to this specific private decision except in that it affects different aspects of someone’s life than other decisions might. However, this decision being private also prevents the coercion of the state in the decision. Now, this may be trading one form of coercion for another and private coercion and public coercion are not unique except in the extent and direction of force. For this reason, anarchists, libertarians, and the anti-surveillance left are probably more likely to buy this aspect of argument than the socialist and feminist left that doesn’t reject the state in itself nor believe that privacy unto itself is always a good. However, where these views may start to buy this is where it approaches autonomy. Obviously the privacy, given the right, non-exploitative conditions, allows the space in which someone may freely decide whether or not to have an abortion. But this isn’t an issue of information, but an issue of power. What about privacy in itself?
If the state has no recourse to prevent someone from seeking an abortion under many conditions than it also has no interest in demanding information on pregnancies. Now this has not stopped the government from attempting to do so given attempts to prosecute women over pregnancy outcomes because of possible drug abuse and the like, but it does hamper the abilities and justifications to do so. This information may be kept private (though perhaps not given how good Target and other companies have gotten at directing advertisements to pregnant women) in some capacity from the government if one wishes. Also, the privacy afforded pregnancy information as medical information may prevent harassment towards women who may be pregnant for any multitude of reasons. Again, this falls into the societal problems of slut-shaming, Malthusian and populist classism directed at the poor, abuse relevant to pregnancy status, and many other things. For this reason, the privacy to control the information about pregnancy that legally allows someone to seek an abortion also affords some protections to other pregnant women not just ones who seek abortion. (Now, privacy also does justifiably grant the right to abortion itself in a legal sense because if the state has no right to know of someone’s pregnancy and therefore this person is indistinct before the eyes of the law then this person also does not have her choices made unique before the eyes of the law, of which an abortion would be one.) But the issue of abortion particularly provides a shield to a very specific set of women who become pregnant: those who miscarry.
Abortion and Miscarriage
Given the cultural context of Rowe v Wade, if it were overturned, given the public awareness of abortion, the suspicious eye of the state could be directed at miscarriages. In fact, in the case of a medication abortion, miscarriage and abortion are not visibly distinct. The only difference is that the abortion was intentional and the miscarriage was not. Now, a point to be made here is that this is not insignificant in regards to numbers of pregnancies and therefore I am not appealing to some comparatively rare hypothetical. About half of all zygotes, independent of intentional abortion, result in miscarriage and 15-20% of all known pregnancies not intentionally aborted end in miscarriage. Ultimately this is not to say that the legality of abortion prevents all women who miscarry from being imprisoned, but what it does do is allow for in such an event as a miscarriage, which for many is traumatic, is privacy. There need not be any inspector to question, no doctor to report, no police to detain in regards to a miscarriage if there is none for an abortion. Because they are not distinct to those who only know a pregnancy status, but not much more intimate detail of someone’s life, these eventually become confused and require juridical management which ultimately cuts into the privacy of both those who may seek an abortion and those who may have gone through something such as a miscarriage. Both the conditions that lead to an abortion may be traumatic and a miscarriage may be traumatic. They also might not, but the state cannot distinguish between who to question in this case. Rightfully so, many people would say that it would be intrusive and callous to force someone who is having a hard time dealing with a miscarriage to vindicate herself before the law. Ultimately, the right to seek an abortion prevents this in the case of the state, though perhaps not in more private settings as with a sexual partner or family. Again, this is not to say that all women who have a miscarriage would be shipped off to prison if abortion were made illegal, but it would lead to a level of intrusion due to the law, whether by medical professionals, social workers, police, or harassment by suspicious family. And for those who do not believe that unjust intrusion on reproductive lives by the state is far-fetched, forced sterilizations are found throughout the 20th-Century of the United States and even occasionally the 21st-Century.[i] Forced sterilization may not be the same as preventing abortion or questioning the honesty of an account of miscarriage, but it is a related intrusion into the privacy of person and rights regarding reproduction.