Back in 1789, John Adams and others involved in the formation of the new United States were aware of a perplexing potential problem with the First Amendment and other state constitutional clauses similar to it that had not yet been ratified: What does language that promised freedom of the press and expression entail for publishers who might expose “instances of male conduct”? What if a newspaper dared to expose those humiliating instances when politicians behaved dishonestly and immorally?
In a letter to Adams, William Cushing, who would later serve as one of the nation’s first Supreme Court justices, proposed that rather than the publisher of such material, it might be the individual who was legally protected. Cushing wrote, alluding to passages upholding the value of press freedom, “My question is this.” “Is it consistent with this article to deem & adjudicate any news releases that may arraign the conduct of persons in office, charging them with instances of masculine conduct abhorrent to the responsibility of their offices, to the public benefit, and safety;—when such charges are supportable by the reality of fact” In some circumstances, the freedom of the press “may & ought to be restrained,” he wrote.
The Devastating Effects of Overturning Roe Will Not Just Affect Patients Who Have Abortions,
Adams concurred. He said to Cushing, “You may easily imagine a Case, when a Scandalous Truth may be disclosed about a Man, without any honest motive, and purely out of malice. “[I]n Such a Case, Morality and religion would bar a Man from doing Mischief just out of Malevolence, and I assumed that Law would grant damages,” the author wrote. He proposed that notwithstanding any guarantees of press freedom, publishing instances of male behaviour without “Some reasonable Cause for publishing” would be illegal.
The two men didn’t use the word “privacy” and they didn’t state explicitly that men’s rights to sexual privacy should normally take precedence over other fundamental rights, but that’s exactly what their back-and-forth implied. Even in a nation founded on the freedoms of speech and the press, such interests were of course deserving of protection.
That has new relevance today, some 250 years later. The Supreme Court has now made it clear that the historical perspectives of the men who drafted and ratified the Constitution in the distant past will determine the scope of privacy rights in the present by overturning Roe v. Wade and rejecting constitutional protection for a woman’s right to choose an abortion. The only kind of privacy interests that can qualify as fundamental rights under the Constitution are those listed in the Constitution’s text or those that are “deeply established in the Nation’s history and traditions,” to cite the majority opinion in Dobbs v. Jackson Women’s Health Organization.
I’m a Doctor Who Takes Care of Newborns. I’m anxious After the Roe Decision
Abortion’s claim to protection then depended on history because privacy is not recognized in the Constitution. The Court reprimanded its forebears in Roe for establishing fundamental constitutional protection for abortion on the basis of a modern appreciation of the very personal stake that women have in decisions about whether to carry a pregnancy to term. The Court chided that making such determinations on the exceptional interests of women smacked too much of extra-judicial policymaking. A non-textual constitutional right like the right to privacy could only be enforced with the support of history.
Additionally, history has not been kind to women’s right to decide for themselves whether or not to get pregnant, as shown by the framers’ beliefs and the regulations of the time. From the early days of the common law, “[a]n uninterrupted history of forbidding abortion under pain of criminal punishment existed,” the majority said.
Women lost the right to privacy in their abortion decision, which the courts had upheld for fifty years.
However, Dobbs was aware of the other type of privacy that Adams and Cushing had talked reverently at the nation’s founding and that initially appeared to protect men. The majority in that case stated that “the right to hide information from revelation” was a “quite different” kind of privacy and was not affected by the Court’s revocation of constitutional autonomy rights.
Learn more about how anti-abortion pregnancy centers are gathering vast amounts of information that could be used against women.
Beyond any disagreement among the founders, the former is given top priority. Take into account the fact that one court in the early 1800s upheld a man’s love letter. That judge questioned rhetorically, “How many significant topics, suited to be communicated in the privacy of one’s communication, are unfit for the public eye?” Even if true, the Supreme Court argued in 1845 that it was unlawful to claim that “a man” had a sexually transmitted infection because it was scandalous and men deserved better. The Court wrote that “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.” Grover Cleveland’s privacy interests in his liaisons were protected in part by the publication of a renowned law review essay titled “The Right to Privacy,” which also served to keep journalists at bay. and on it goes.
The Restatement of Torts, a widely influential legal treatise that is still in use today, summarized the law in 1977 in this way: “Most details of a man’s existence in his house, including parts of his prior history that he would rather forget” are protected by private interests. The language choice is not mine, only the italics are.
In conclusion, the care taken by the drafters of the Constitution and our “deeply entrenched” legal traditions for men’s private rights contrasts sharply with the evident lack of concern shown for women’s privacy interests in the Supreme Court’s recent decision in Dobbs.
View More: Maternal Mortality Rates in the United States Could Increase Without Roe v. Wade
The opposition in Dobbs made note of the fact that, because they were all men, individuals in charge of such matters paid little attention to women’s privacy interests in sexuality, pregnancy, and other such matters in the early days and even more recently. The Constitution, statutes, judicial rulings, and even, primarily, the Restatement from 1977, were all written by men.
Finally, the contrast between the keen sensitivity that previous generations of men who framed the constitution demonstrated for male privacy interests and what the Dobbs majority found to be their eager toleration of government interference with women’s private choices highlights the danger of looking to the past—especially previous generations of men alone—in defining the scope of constitutional rights for all today.
Authorities in Texas and the FBI arrested a woman and a juvenile for allegedly kidnapping a baby from Florida
On Monday, law enforcement officials in Florida and Texas made an arrest in connection with the abduction of a baby...
Authorities in Texas and the FBI have arrested a woman and a juvenile for allegedly kidnapping a baby from Florida
On Monday, law enforcement officials in El Paso, Texas, arrested a woman and a minor on suspicion of kidnapping a...
Authorities arrested a woman who allegedly stole a baby in Florida and transported it to Texas
On Monday, police in El Paso, Texas, arrested a woman and a juvenile on suspicion of kidnapping an 18-month-old child...
Authorities in Texas and the FBI made an arrest of a woman and a juvenile who allegedly kidnapped a baby from Florida
On Monday, law enforcement officials determined that a woman from El Paso and a minor had abducted an 18-month-old child...