Half a century ago, the U.S. Supreme Court held that a federal constitutional right to privacy around abortion essentially trumps whatever right to life the unborn hold. But now that Roe v. Wade has been overturned by Dobbs v. Jackson Women’s Health Organization, the meaning of separate rights to privacy under state constitutions has been called into question. The pre-Roe history of the right to privacy reveals that it originally ran parallel with the separate right to life and did not act as a limit on it.
South Carolina is a good case study. Palmetto State legislators have enacted a law limiting abortion after the point at which a fetal heartbeat can be detected. Challengers argue that this measure violates the state constitution’s protection[CMP1] against “unreasonable invasions of privacy,” which was enacted in a 1970 referendum. (I assume here, as the South Carolina Supreme Court has held, that this language protects a freestanding right to privacy, but note that some scholarship suggests that the provision originally meant something else). At that time, the right to privacy had a different meaning than the one Roe enshrined three years later.
An influential early formulation of what became the right to privacy saw it as entirely harmonious with the right to life. William Blackstone reasoned that each person has natural rights to “personal security” and “personal liberty,” including the “uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation,” as well as “the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” But Blackstone did not think that these rights conflicted with the right to life. The very same part of his Commentaries describes abortion as a “heinous” crime “as soon as an infant is able to stir in the mother’s womb,” and Dobbs also read him as having considered earlier abortions “unlawful.”
Blackstone’s ideas were developed into the modern idea of a right to privacy in a landmark 1890 article by Samuel Warren and Louis Brandeis. They argued that there is a “right to be let alone”—for individuals to enjoy private areas of freedom for their “thoughts, emotions, and sensations.” But Warren and Brandeis did not argue that this right qualified the separate “right to life,” which they recognized as protecting people from harm inflicted by others. Likewise, when the Georgia Supreme Court influentially adopted their argument in 1905’s Pavesich v. New England Life Insurance Co., it wrote that each individual has “a right to enjoy life in any way that may be most agreeable and pleasant to him,” but that there also exists a separate right to life whose “most flagrant violation” is its “deprivation.”
An unenumerated right to privacy was first embraced by the U.S. Supreme Court in 1965’s Griswold v. Connecticut[CMP2] . That case held that state governments could not ban married couples’ use of contraception because the rights enumerated in the U.S. Constitution create implied “zones of privacy.” The Court then held that police searches of marital bedrooms for contraceptives would be “repulsive” to privacy. It did not, however, suggest that a right to private marital relations would affect the separate right to life.
Such were the contours of the right to privacy when South Carolinians wrote it into their state constitution in 1970. The right protected significant areas of liberty, but did not answer separate questions about the right to life and what that right protects. Nothing suggests that South Carolina voters understood the right to privacy any differently. Indeed, the very same year as the state constitutional amendment passed, reformed abortion laws went into effect in South Carolina—but they only allowed for abortions to preserve maternal life or physical health, in cases of severe disabilities in the unborn child, or where the pregnancy was caused by rape or incest. Even these narrow exceptions were hedged in with significant regulations.
Only after that was Roe decided. It upended almost every state’s abortion laws, including South Carolina’s. Its interpretation of the interplay between the right to privacy and the right to life triggered immediate protest. Justice Rehnquist dissented, observing that the right to privacy had only ever been held to protect freedom “from unwanted state regulation of consensual transactions”—which abortion was not. Justice White, who had concurred in the Griswold judgment, did not think that the right to privacy stopped the states from protecting “the continued existence and development of the fetus.”
Last summer, a majority of the U.S. Supreme Court agreed, overturning Roe and holding that abortion is “fundamentally different” from whatever is actually protected by the right to privacy. This is because abortion “destroys” what the Court had previously called “fetal life” and what the state law at issue in Dobbs described as an “unborn human being.”
This understanding of the right to privacy as coexisting alongside the right to life, without limiting it, was a return to the state of the law before 1973—back when the right to privacy was first adopted in South Carolina.
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