The Court’s Fear of Privacy : Odd Rulings in Abortion, Right-to-Die

While the Supreme Court must keep its gaze firmly fixed on the Constitution and its Bill of Rights, the lens through which it peers is inevitably colored by the spirit of its age.

In our own time few issues have so perturbed the public spirit as those arising from the question of whether Americans possess an inherent “right to privacy.” Much of the anguish and confusion created by the current Supreme Court majority’s chaotic approach to abortion grows out of its hostility to the notion of privacy--and from its inability to frame its reservations in any convincing fashion.

Even in its decision in the Missouri right-to-die case Monday, the court was forced to strain to gain a reasonable result because the majority needs to disclaim any reliance on a privacy right.

While affirming “the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment,” Chief Justice William H. Rehnquist, writing for the majority, added: “Although many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held.” Instead the majority focused on the 14th Amendment’s insistence on due process, ruling narrowly that a state may require a clear and convincing process of proof.

The consequences of the court’s flight from privacy were even more apparent in its rulings upholding two statutes requiring that the parents of minors seeking abortions be notified. In those cases, the court’s struggle to reach some kind of a decision involved not simply majority and dissenting opinions, but also three other opinions by justices who concurred with the majority only in part. Even abortion-opponent Justice Antonin Scalia assailed his colleagues for “the random and unpredictable results of our . . . individual views.”

Scalia is correct that the court’s approach to abortion--which, in effect, is an invitation to the states to concoct 50 different standards--has created disorder. Contrast this result with that achieved by earlier courts in the Griswold and Roe cases, which held clearly that individuals’ marital and reproductive conduct occur “within the zone of privacy created by several fundamental constitutional guarantees” and that, as Justice William O. Douglas wrote, here “we deal with a right of privacy older than the Bill of Rights.”

Such reasoning, which breathes freedom’s living spirit into the letter of the 9th and 14th amendments, contains both wisdom and humanity. It stands in marked contrast to the crabbed abstractions of the Rehnquist Court. Those who uphold the right to privacy, as The Times and others who favor choice do, cast their lot with jurists who have the courage to make the Constitution a living document and not, as the current court would have it, a political reliquary.