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Privacy: dead and gone?

Is privacy dead? The United States Court of Appeals for the Third Circuit came close to deciding it was, in Planned Parenthood of Southeastern Pennsylvania v. Casey on 21 October 1991. [1] Pennsylvania's antiabortion law had been challenged for violating the privacy rights guaranteed to pregnant women under Roe v. Wade. [2] Upholding most of the state statute, the Third Circuit concluded that the Supreme Court's landmark 1973 decision is no longer the law of the land.

Abstract constitutional principles may inspire intellectual debate, but they assume true significance only as they affect the outcome of cases. In recent years, the regulation of abortion appeared to be the only area in which the constitutional doctrine of privacy placed limits on the exercise of state regulatory authority. Other intimate activities--such as sexual relations not related to heterosexual union--were held not to be protected. [3] Nor were other medical procedures, such as decisions about life-sustaining treatment. Indeed, privacy had become such a narrow concept that neither the parties nor the justices mentioned it during the oral arguments in Cruzan v. Missouri Department of Health, nor did it appear when the Court handed down its opinion in that case in June 1990.

Nonetheless, privacy has been relied upon by the Court in deciding the stream of abortion-related cases that have come before it over the past two decades. Even in his angry 1989 opinion in Webster v. Reproductive Health Services, in which he accused the plurality of being "deceptive," Justice Blackmun concluded that while the abortion rights recognized in Roe "are not secure," they do still "survive." [4] How, then, did a mere appellate court pronounce privacy dead? And was it right?

The Casey decision arose from a challenge mounted by a group of abortion clinics against certain amendments (enacted by the state legislature in 1988 and 1989) to the Pennsylvania Abortion Control Act of 1982. A federal district court agreed with the plaintiffs that provisions requiring a particular "informed consent" process, spousal notice, and parental consent, as well as provisions establishing reporting and disclosure obligations for the clinics and the state, violated the Due Process clause of the Fourteenth Amendment. The Third Circuit reversed on all points except regarding spousal notification, which it agreed was unconstitutional.

In some ways, Casey does not directly implicate Roe because the Pennsylvania statute did not ban abortion. Yet the plaintiffs argued that the restrictions placed on women's exercise of their right to choose an abortion were significant and were not justified by a compelling state interest. In ruling for the defendants, the court held there was no need for the state to establish a compelling basis for its restrictions because the Supreme Court no longer regarded a woman's choice for abortion as a fundamental right.

The Pennsylvania Statute

Several of the elements of the Pennsylvania law are similar to restrictions recently adopted in other states, such as Mississippi, North Dakota, and Ohio. For example, the statute mandates that physicians inform women contemplating an abortion about the nature and risks of the procedure and of alternatives (including carrying the fetus to term), as well as about the gestational age of the fetus. The physician or another counselor must also inform the woman that state programs provide assistance in paying for medical costs of having the child, that the child's father has a legal duty to assist financially, and that literature describing the fetus during development (and listing agencies that offer alternatives to abortion) is available from the state health department.

Patient self-determination often seems to be the Holy Grail of bioethics. So statutory requirements mandating the disclosure of facts that could better inform patients' decisions might seem unexceptionable. Yet as the Third Circuit noted, such provisions might impose four types of burdens on a woman contemplating abortion: "time delay, higher cost, reduced availability, and forcing [her] to receive information she has not sought."

An even clearer burden is imposed by the statute's requirement that twenty-four hours must pass between the giving of the mandated information and the abortion, although a woman may give her consent at any time during this period. "As the clinics stress," the court stated, "a 24-hour waiting period may result in delays considerably longer than 24 hours because most clinics do not perform abortions every day of the week. Moreover, such a waiting period may require a woman to make two visits to a clinic rather than one."

The law also involves third parties in a woman's abortion decision under two circumstances. In the case of a minor, consent must be obtained from at least one parent, although the statute permits what the Supreme Court had earlier termed a "judicial bypass alternative" that meets standards articulated in the second Bellotti case. [5] In the case of a married woman, the woman must certify on a form (provided by the Commonwealth) that she has notified her husband of her intended abortion. A false statement is a misdemeanor, and a physician who fails to comply with this section is subject to civil penalties.

Finally, the Pennsylvania law suspends the waiting period and third-party notice and consent requirements when a medical emergency exists.

The Challenge to the Statute

The plaintiffs in Casey claimed that all these provisions (and others) were unconstitutional on their face, and the district court agreed. The Third Circuit's contrary conclusion regarding all aspects of the statute--save the spousal notice requirement, which the appellate court also held invalid--depended in part on the way Judge Walter K. Stapleton and his colleagues viewed the facts. [6] Specifically, they found that Pennsylvania's method of regulating abortions did not seriously obstruct women in obtaining them.

What is significant about the opinion, however, lies not in the court's characterization of the impact of the state law but in the standard the judges found to be applicable in weighing the constitutionality of the law. Roe held that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Since this right is "fundamental" in constitutional terms, a regulation that intereferes with it is subject to "strict scrutiny": it must be justified by a "compelling" state interest and it must be "narrowly drawn"--that is, the interest must be unachievable through means that would impose a lesser burden on the right in question.

In the years since Roe was decided, several members of the Supreme Court who voted with Justice Blackmun have retired, while Justice White and now-Chief Justice Rehnquist--who dissented on the ground that abortion was not a fundamental right--have remained on the Court. Several of the new justices, such as Scalia and Kennedy, have joined in opinions that would hold state regulation of abortion solely to a "rational basis" standard of review: the regulation need merely be rationally related to a legitimate state interest.

In the view of the Casey court, the standard that is currently applicable lies between strict scrutiny and rational basis and can be found in the opinions of Justice O'Connor. She has repeatedly stated that abortion laws are subject to strict scrutiny only if they "unduly burden" a woman's freedom to decide whether to terminate her pregnancy; otherwise, rational basis is the appropriate standard for judicial review.

Justice O'Connor has reiterated her "undue burden" standard since her dissent in Akron v. Akron Center for Reproductive Health, Inc., [7] but it originated in Justice Powell's 1977 opinion for the majority in Maher v. Roe, [8] a case in which the Court held that states are not required to fund nontherapeutic abortions even when they pay for other medical services (including childbirth) for needy women.

Picking a Constitutional Standard

To choose the standard that the Supreme Court will apply when it decides its next abortion case--which may well be this June, if the Court accepts the appeal that both parties in Casey have requested--one could simply "count noses." Doing so quickly reveals that only two justices apparently remain committed to the full scope of the right of privacy as applied in Roe v. Wade, while four leave no doubt that they believe the 1973 decision should be explicitly overruled.

Since it is bound by the Supreme Court's interpretation of constitutional principles, the Third Circuit had to be a diagnostician (saying what the law is now) not a prognosticator about how the Supreme Court will treat the right of privacy when it rules. Applying a procedure used by the Supreme Court itself in Marks v. United States, [9] the circuit court attempted to ascertain whether a new standard had been implicitly adopted to replace the one in Roe. Even though a majority of the justices had never agreed on a new standard in a single decision, the appellate court held that the controlling rule lies in the decision of the justice who has joined to make a majority on the narrowest grounds. In the area of abortion, that person is Justice O'Connor.

If Justice O'connor's position is the governing legal standard (at least until justices Souter and Thomas cast their lots with another view), then her formulation itself deserves careful scrutiny. Her "undue burden" standard is puzzling, to say the least. On the one hand, it appears to reaffirm the view that women have a fundamental right to decide on abortion, since she holds that statutes unduly burdening this choice are subject to strict scrutiny. On the other hand, by erecting a very vague threshold requirement (How great must an interference with choice be to be "undue"? Does a heavy burden on a single woman count differently than a smaller burden on many women?) and by placing the burden of proving it exists on the party challenging the statute, Justice O'Connor comes close to saying that the only statutes that would clearly be unconstitutional are those that directly prohibit abortion. Mere interference is not enough; as the Casey court held, to be found an "undue burden" a regulation must have a "severe" or "drastic" impact on a woman's choice.

Furthermore, "undue burden" means something totally different in the context of a state's failure to fund abortions (which Justice Powell was addressing in Maher when he formulated the idea) than it does when a state attempts to alter a person's abortion decision in the first place. Even people who oppose the Court's rulings in the funding cases can agree that what was at issue there was not a woman's decision but her ability to effectuate that choice (which is certainly constrained if she has no funds to pay for the abortion). Other regulations--whether the "gag rule" upheld in Rust v. Sullivan [10] last May or the compelled physician "information" and parental notification of the Pennsylvania statute challenged in Casey--aim directly at altering the choice itself. Interference of this latter kind is inherently more of a threat to the right of privacy than the absence of public funding.

Whither Privacy?

When "privacy" was in its flower, it seemed to many people a good idea to attach all sorts of choices to this "fundamental right." For example, the Quinlans' lawyer persuaded the New Jersey Supreme Court to turn the common-law right to be free of unconsented medical intervention into a constitutional right. [11] Indeed, the New Jersey court even borrowed a concept reminiscent of the famous trimester division established in Roe: the state's interest in protecting the life of a terminally ill patient diminishes as the prognosis dims. Although that particular, unfortunate formulation was later abandoned, the notion that the right to make choices about life-prolonging medical treatment is part of a right of privacy (under the federal as well as some state constitutions) is now firmly embedded in our jurisprudence.

Yet today the Supreme Court seems loath even to acknowledge that the United States Constitution protects "privacy." Instead, people may seek protection for "liberty" under the Fifth and Fourteenth amendments, but state regulations that impinge on individual interests need only be rationally related to some legitimate state interest to be sustained.

In some ways the switch from "privacy" to "liberty" is merely semantic, since privacy was derived from a series of cases in which the Court had defined the contours of personal liberty. The biggest effect of abandoning the language of privacy, however, is that it allows the Court to jettison a lot of baggage that has come to encumber (or to define, depending on one's view) that concept in decisions rendered over the twenty-five years since Griswold created the doctrine in the context of marital birth control. [12]

Rather than focus energy on fighting a probably futile battle to preserve a separate sphere of liberty labelled "privacy," it seems more fruitful to enlarge the sphere in which liberty protects those things we truly value in personal relations, particularly in health care. The term privacy always seemed a little inappropriate (or even misleading) when applied to biomedical interventions, whether at an abortion clinic or in an intensive care unit. Better to attempt "to vindicate the idea that 'liberty,' if it means anything, must entail freedom from governmental domination in making the most intimate and personal of decisions." [13]


[1] No. 90-1662, filed 21 Oct. 1991 WL 209106 (3rd Cir, 1991).

[2] 410 U.S. 113 (1973).

[3] Bowers v. Hardwick, 478 U.S. 186 (1986).

[4] 492 U.S. 490, 537 (1989) (Blackmun, J., concurring in part and dissenting in part).

[5] Bellotti v. Baird, 443 U.S. 622, 663-64 (1979).

[6] Judge Alito, who concurred in upholding most of the statute, dissented from the majority's determination that the spousal notification requirement was unconstitutional. 1991 WL 209106, at *30.

[7] 462 U.S. 416, 464 (183) (O'Connor, J. dissenting).

[8] 432 U.S. 464, 473-74 (1977).

[9] 430, U.S. 188. (1977).

[10] 111 S. Ct. 1759 (1991).

[11] In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. den. 429 US 922 (1976).

[12] Griswold v. Connecticut, 381 U.S. 453 (1965).

[13] Rust v. Sullivan, 111 S. Ct. 1759, 1784 (1991) (Blackmun, J., dissenting).

Alexander Morgan Capron is Henry W. Bruce University Professor of Law and Medicine, University of Southern California, and codirector of the Pacific Center for Health Policy and Ethics.
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Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Jan 1, 1992
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