Vol. 29 No. 7 (August 2019) pp. 75-78BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY, by Mary Ziegler. Cambridge: Harvard University Press, 2018. 383pp. Hard Cover $45.00, ISBN-10: 9780674976702.
Reviewed by Boleslaw Z. Kabala, Department of Government, Legal Studies, and Philosophy, Tarleton State University. Email: kabala@tarleton.edu.
The right to privacy is particularly relevant today in the context of social media’s illegal sales of hundreds of millions of private citizens’ records, the recent explosion in the crime of identity theft that involves stealing of billions of private records from government and industry databases (Leskin 2018), and our own government’s growing surveillance of hundreds of millions of Americans. Mary Ziegler’s book, BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY, explores the ROE V. WADE decision and its impact on the formulation and understanding of the right to privacy.
The main thesis of BEYOND ABORTION is that the right of privacy was, and still is, shaped not only by ROE v. WADE, but also and primarily by the reinterpretations of the decision promoted by activists from a wide range of social movements. These reinterpretations have affected the way courts themselves interpreted the law concerning intimate relations (both in and outside of marriage) and sexual liberty (for heterosexuals, homosexuals, and bisexuals), medical authority, mental illness, the right to refuse medical treatment, death and dying. Ziegler argues that the ROE decision and its reinterpretations by activists are, in one way or another, central to all these issues.
The book is well organized and written clearly, with approximately chronological chapters organized by theme. The targeted audience is that of educated laypeople with a penchant for law and politics. The author documents how diverse movements and their activists, from both liberal and conservative backgrounds, were central in each of the spheres mentioned and how they relied on ROE in different ways to develop privacy claims.
Chapter 1 presents the history of right to privacy and many ROE related details. Chapter 2 covers the story of the ACLU Sexual Privacy Project, dealing with issues of gay and lesbian rights, and the movements that secured sexual freedoms by challenging in Court the moral and sodomy laws (laws against certain types of sex, against fornication, against living with a boyfriend or a girlfriend without marriage, etc.). These decisions extended the privacy guarantees of ROE to the private space of one’s bedroom. The ACLU project also covered reforming laws on marital rape and pornography, and other key issues.
Chapter 3 analyzes the use of the ROE decision and its privacy arguments to reform what many considered abusive psychiatric practices and treatment of the mentally ill: civil commitment against one’s will without providing effective medical treatment and the patient’s right to refuse treatment. Groups of former or current mental patients and their activists used ROE to stand for the right to make their own medical decisions.
Chapter 4 discusses the history of using ROE in the legal fight for access to yet unproven drugs by dying cancer patients and how this fight for access was extended beyond cancer to acupuncture and other unproven therapies. Chapter 5 focuses on issues of death with dignity and equal treatment for the sick, disabled, and dying. It deals with efforts to establish the right to refuse recognized lifesaving medical treatments and the patient’s right to make end-of-life decisions. Chapter 6 explores the refinements of privacy [*76] arguments and the debates about the role of the Court as well as the rule of law. As Ziegler shows in all these instances, activists were the ones who primarily pointed the way forward, not necessarily legal experts.
This excellent book is likely to surprise many readers with numerous facts that are not widely known or discussed. For example, before the understanding of ROE became highly partisan and eventually synonymous with abortion for one side and judicial overreach for the other, both liberals and conservatives accepted it in the 1970s. In fact, the author documents that conservative Senator Barry Goldwater wanted ROE to stand for the right to control one's own data. Also, the now popular belief that ROE stands for a woman's right to choose is partly misleading: ROE actually specifies a significant role for a physician in the abortion decision and thus the author argues that its focus includes physicians and is not limited to women's liberation.
Furthermore, the book offers a panoramic view of how social movements and their activists are involved in the proposal, modification, and passage of laws. With a wide spectrum of fascinating examples that Ziegler puts forth, we gain a glimmer of hope that the involvement of everyday people may make it possible to break the seemingly permanent impasse in Washington.
Two items could have made this excellent book even better. First, Chapter 1 moves too quickly and in some respects could have been more thorough. It could have been split into two separate chapters: one on the roots of the right to privacy in our law and the other on the case of ROE v. WADE. For example, the discussion of the roots of the privacy right could then have been expanded in more detail to include the Bill of Rights and its concerns for protecting the privacy of beliefs (First Amendment), privacy of the home against demands to house soldiers (Third Amendment), privacy of the person and possessions against unreasonable searches (Fourth Amendment), and the privacy of personal information (Fifth Amendment's privilege against self-incrimination). Furthermore, the discussion of the Ninth Amendment and the penumbra (shadow) theory of implied rights would be helpful here, rather than dispersed in passing in three places throughout the book. Whether the Constitution protects privacy in ways not explicitly listed in the Bill of Rights is a source of controversy. Originalists have argued that this is not the case. But the Supreme Court since MAYER v. NEBRASKA (1923) through PIERCE v. SOCIETY OF SISTERS (1925), GRISWOLD v. CONNECTICUT (1965), STANLEY v. GEORGIA (1969), and ROE v. WADE (1973) has read the Fourteenth Amendment to guarantee a broad right of privacy.
Second, Ziegler concedes upfront that she “does not take issue with the widely held conclusion that ROE as a constitutional decision was flawed” (p. 4). However, she does not discuss why this is the case. But the reasons for the flawed nature of the decision form the basis for a number of highly relevant privacy-related questions that have been neither asked nor answered. That the privacy justification for abortion in ROE was flawed was recognized even in the pro-choice community before the decision (e.g., Thomson 1971).
One reason why the rationale of ROE is flawed centers on fetal personhood. If legally recognized, it demolishes the privacy justification, as there is no privacy with two persons present. Recognition of fetal personhood also renders the gender-equality justification, used by Justice Ruth Bader Ginsburg at her 1993 Senate confirmation hearings, moot. With rapid advances in embryology has come the recognition that there is nothing biologically or morally unique about quickening (feeling the first moves of the fetus) or the viability point of pregnancy (from which the fetus can survive, with help, outside the womb) specified in PLANNED PARENTHOOD v. CASEY (1992). Embryologists, biologists, medical [*77] doctors and ethicists (George 2013, Pruss 2011, George and Lee 2009) mostly agree, some grudgingly, that human life represents one continuum from conception through birth, to childhood, to adulthood, and eventually to death—all phases with one and the same DNA strand. Indeed, in a recent dissertation at U. Chicago, Jacobs (2019, p. 303) found:
While many pro-choice Americans believe that a fetus is not a biological human before it is capable of living outside of the pregnant person, a survey of biologists suggests that the predominant biological view is that fetuses are biological humans throughout pregnancy.
Jacobs (2019) further noticed:
Pro-choice Americans and biologists who recognize fetuses as biological humans throughout pregnancy are not necessarily inconsistent in their beliefs about abortion since, on its own, the fact that abortion impacts biological humans does not require a particular stance on abortion without something more; further, even if one strictly supports universal human rights or equal protection under the constitution, they are not obliged to have a particular legal stance on abortion since one can recognize a fetus’ rights and hold that abortion rights are superseding; ( p. 303, fn. 52).
With two recent conservative appointments (and a third looming as a possibility), it is likely that the Supreme Court may recognize fetal personhood and thus pull the rug from under ROE. Indeed, as pro-choice Manninen (2010, p. 38) noted about the author of the ROE majority opinion: “Even Justice Blackmun conceded, when he delivered the opinion of the Supreme Court, that if fetal ‘personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would be guaranteed specifically by the [14th] Amendment.’”
Recognition of fetal personhood does not necessarily mean that ROE would be repealed. Perhaps the Court would let the decision stand with a different justification for the right to abortion. A number of such justifications have already been proposed.
Indeed, Judith Jarvis Thomson (1971) gives an example, in which after being kidnapped, you find yourself next to a famous violinist suffering from a fatal kidney disease, with his circulatory system plugged into yours. Unplugging the violinist would result in his death. Is there an analogy with a fetus requiring the use of a woman’s body? Critics argue that violence (kidnapping) renders Thomson’s defense applicable only to abortion following rape. Pro-choice Manninen (2010) used the McFALL v. SHIMP (1978) case to make a more powerful bodily-autonomy argument. Shimp was sued by his cousin McFall to donate bone marrow to save McFall’s life. Yet the Tenth Pennsylvania District Court sided with Shimp when it concluded that “no person’s right to life entailed that another person had to forcibly submit to unwanted bodily intrusion in order to sustain the former’s life.” The analogy with a fetus requiring the use of woman's body seems undeniable. But pro-life Jack Mulder Jr. (2010) has pushed back: “Shimp is not legally obliged to give his bone marrow, since he is not terminating an existing relationship of dependency, but merely failing to enter into [one]. Therefore, Shimp is not, by any particular action, killing McFall, but merely letting him die.” And the debate continues (e.g., Manninen and Mulder 2018). Other lines of defense of the legal right to abortion include, for example, the forced-labor defense by Koppelman (1990) and an abstract, philosophical defense by Boonin (2002) and Beckwith (2006).
Either way, whether the Court repeals the decision or lets it stand with a different justification, ROE v. WADE is likely to cease to function as the bedrock for the privacy right. If so, how would this affect many of the [*78] decisions, discussed in the book, which firmly stand on the shaky privacy dimension of ROE?
In conclusion, Mary Ziegler’s BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY book is an even-handed and highly interesting treatment of the ROE decision and its influence on our right to privacy. It illustrates its arguments with numerous stories superbly backed up by extensive notes and sources. This edifying book is a must-read, perfect for the summer. I highly recommend it.
REFERENCES:
Beckwith, Francis J. 2006. Defending abortion philosophically: a review of David Boonin’s A Defense of Abortion. JOURNAL OF MEDICINE & PHILOSOPHY 31(2): 177-203.
Boonin, David 2002. A DEFENSE OF ABORTION, Cambridge University Press, pp. 366.
George, Robert P. 2013. “Infanticide and madness.” JOURNAL OF MEDICAL ETHICS 39(5): 299-301.
George, Robert P. and Lee, Patrick 2009. Embryonic human persons. EMBO REPORTS 10(4): 301-306.
Jacobs, Steven Andrew. June 2019. BALANCING ABORTION RIGHTS AND FETAL RIGHTS: A MIXED METHODS MEDIATION OF THE U.S. ABORTION DEBATE. PhD. Dissertation, Department of Comparative Human Development, University of Chicago. 322 pages. Available at https://knowledge.uchicago.edu/record/1883.
Koppelman, Andrew 1990. Forced Labor: A 13th Amendment Defense of Abortion. NORTHWESTERN UNIVERSITY LAW REVIEW 84(2): 480-506.
Leskin, Paige 2018. The 21 scariest data breaches of 2018. BUSINESS INSIDER. Available at https://www.businessinsider.com/data-hacks-breaches-biggest-of-2018-2018-12.
Manninen, Bertha A. 2010. Rethinking Roe v. Wade: defending the abortion right in the face of contemporary opposition, THE AMERICAN J OF BIOETHICS 10(12): 33-46.
Manninen, Bertha A. and Mulder Jr, Jack 2018. CIVIL DIALOGUE ON ABORTION, Routledge, NY, pp. 219, https://www.taylorfrancis.com/books/e/9781351819244.
Mulder Jr., Jack 2010. Let’s Rethink Roe v. Wade—And overturn it, AMERICAN J. BIOETHICS 10(12): 65-66.
Pruss, Alexander R. 2011. I Was Once a Fetus: That Is Why Abortion Is Wrong. In: Napier S. (ed). PERSONS, MORAL WORTH, AND EMBRYOS. PHILOSOPHY AND MEDICINE. Volume 111. Springer, Dordrecht.
Thomson, Judith Jarvis 1971. A defense of abortion, PHILOSOPHY & PUBLIC AFFAIRS 1(1): 47-66.
© Copyright 2019 by author, Boleslaw Kabala.
