Our Right to Privacy: Did the Court Really Take it Away ?

A Whackadoodle discussion about Roe v. Wade, our right to privacy, expanding the court, and taking action, by Lynn Marie Sager

She came to my door both devastated and angry, “How could they do it?” She cried, wiping tears from her eyes. “How could they just take away our rights like that? I mean my whole world has just become terrifying. After everything we have been through in the past two years, a pandemic, mass shooting, mass protests, record inflation, a war in Europe, an attack on the Capitol, and now this. They have tossed out Roe v. Wade. I don’t think I can take any more.”

“You don’t have to worry,” I informed her, feeling a bit hopeless myself. “You live in a state that already has abortion rights codified within its state’s laws. Abortion has been legal in Hawaii since March 1970, three years before the Supreme Court made their decision in Roe v. Wade.”

“What are you talking about?”

“Didn’t you know that Hawaii was the first state in America to decriminalize abortion by removing all requirements to justify having the procedure done? It’s the law here. You just have to be careful where you go to college, and where you chose to live. Welcome back to the the 1950’s, when the federal government did not guarantee the right to privacy because, well, the right to privacy is not really written into the constitution, so we’ll just let the states duke it out.” I added as an afterthought, “Of course, even our State’s protections will go away if the Federal government decides to pass a law making abortion illegal in all fifty states,” I shrugged. “Oh well, c’est la vie.”

“I came here for comfort, and all you do is make jokes.”

“What can I say,” I told her. “I often vent my anger with sarcasm.” I ushered her in, and we sat together across my kitchen table.

“You said right to privacy,” she began between sniffles. “How can they take that away? I mean isn’t the right to privacy what makes interracial marriage possible, same sex marriage possible, types of contraception possible, in vitro fertilization possible, and so many other rights possible?”

“Yep,” I agreed. “But the right to privacy is not actually written into the constitution. In 1965, in a case called Griswold v. Connecticut, the supreme court then inferred from the protections in the first, third, fifth, and ninth amendments that the right to privacy exists within the constitution. Today, June 24, 2022, the supreme court just ruled in Dobbs v. Jackson Women’s Health Organization that the 1965 court’s inference was wrong, and we have no right to privacy. Therefore, every case that was based upon the precedent set in Griswold v. Connecticut is now made vulnerable by this supreme court.”

“But that’s crazy,” she informed me. “We can’t let this stand.”

“That’s my girl,” I smiled. “Turn that anger and devastation into action.”

“But what can we do?” she asked, ignoring my comment. “I mean, they’re appointed for life. They aren’t going anywhere. They are all so young. Their judgements are likely to impact me for the rest of my life. I mean, yesterday they declared the New York City handgun carry permit laws unconstitutional, and today they overturned Roe v. Wade. What’s next?”

“In a perfect world, one where I was in charge, I know what I would do,” I replied. “I would expand the court, and I wouldn’t stop at four more justices. I would add another eighteen justices, so we could run the Supreme Court like the Federal Appeals Courts are run.”

“How’s that?”

“They run on a kind of lottery system that decides which Federal judges hear each case. It’s never predictable which judges you get, so the Federal Courts are harder to politicize. Not so with the Supreme Court, where nine people hold all the power and are appointed for life. I mean, as the court stands right now,” I added. “Even if the legislature did pass a law making Roe v. Wade into federal law, there’s a good chance this court would declare that law unconstitutional.” I shook my head, “And I’m afraid that civil disobedience is now a risky option.”

“What do you mean?’

“Well for most of my life, if a law felt unconstitutional, you would deliberately disobey it in order to bring that law before the supreme court. Like with Loving v. Virginia, which made banning interracial marriage illegal. That case would never have come to court if the couple had not moved back to Virginia. Rosa Parks refused to leave her bus seat, knowing that she would be arrested, knowing the law against separate but equal would be tested. She trusted that the courts and the constitution would hold up her rights as a citizen of these Unites States. But with the court we currently have, I don’t think I would trust in that. In his concurrent opinion, Justice Thomas has already declared that he is ready to take on cases regarding marriage rights, and even the right to accessing contraception. I mean, the way they are going, I think that this court would even uphold the Dredd Scott decision.”

“I remember hearing about the Dred Scott decision, but I don’t remember what the decision was.”

“In 1857, Dredd Scott v. Sanford, the Supreme Court ruled that the United States Constitution was not meant to include American citizenship for people of African decent, whether they were enslaved or free, and so the rights guaranteed by the constitution could not apply to them. Incidentally,” I added. “It is no coincidence that the Civil War broke out four years later. No, the United States Supreme Court is no stranger to politicization.”

“And your answer is to expand the court? In your perfect world,” she repeated my earlier proposition, trying to understand, “the Supreme Court would never have the same combination of nine justices? Each case would be heard by a different combination of nine?”

“Yep,” I nodded. “I would also reinstate the filibuster for Supreme Court Justices before we started appointing them because no person should get that much power if they can’t get at least sixty people to accept them.”

“So you like the filibuster?”

“For life time appointments, yes.” I declared. “For laws that the majority of Americans want, and which can be easily rewritten when they want something else, no.”

“And you want twenty-seven Supreme Court justices in all?” she repeated skeptically.

“Exactly,” I affirmed. “And just think how many more cases they could hear because they could have three separate court configurations at a time,” I added with a touch of sarcasm. “They could hear three cases for every one case they’re hearing now.”

She was still thinking. “It might work,” she admitted at last. “But it will never happen, not with the legislature so divided.”

“I’m glad you noticed that.”

“So that’s all we can do, right?” she looked up at me. “Fight back at the ballot box.”

“Unfortunately, I think you might be right.” I agreed. “But there are so many ways to fight back at that ballot box. It’s not just your single vote that counts. You can reach out to other states and lend your support there as well. You can work to make sure that voting rights are protected in those states. You can lend your voice to those running who support the right to privacy, and all the rights that the right to privacy protects. You can work with organizations that are fighting to help people vote.”

“So basically, don’t get mad. Get active.”

“Exactly. But,” I cautioned. “Should you chose to get active please do two things for me. One, chose your allies well. Put you energy into projects where it will do the most good. Two, make sure that your allies understand persuasion.”

“How can I do that when I barely understand it?”

“You understand it enough to know that it is useless to talk to a brick wall. You understand it enough to know that the only way past that brick wall is to ask questions. Questions that start to pick away at that wall.”

“So basically,” she said carefully. “Instead of telling a person that disagrees with me what I think, I should ask questions to get them thinking. I could ask, ‘Do you really believe that your God would want a twelve year old girl to carry her father’s child to term because that is what this law does?”

“That would be perfect,” I smiled. “And if they start getting upset with your questions, you know that the wall is crumbling. You just keep chipping away with questions until they learn to question themselves.”

“If they don’t hit me first.”

“If it ever comes to that, you have two options, either walk away, or ask, ‘Do you really think that hitting me will solve anything?’”

“You are so weird.”

“As my sister used to say, ‘If you’re not weird, you’re weird.’” I looked across the table at her troubled face. “Feeling any better?” I asked.

“Yeah,” she admitted. “I think that I am ready to take this mess on.”

“Good,” I replied. “Because the future is gonna be up to kids like you.”

“Great,” she said ironically. “That makes me feel soooo much better.”

“I don’t know,” I told her. “I feel kind of good leaving the future to you.”