PANEL: Beyond Griswold and Roe: New Perspectives on the Right to Privacy
Friday, October 23, 10:30-12:00
The right to privacy has become one of the most contested legal and political concepts of recent decades. As a result the history has become rather entrenched, and for defenders of the concept, very whiggish. The bad old days have gone and been replaced with the more enlightened policy of our times, or so the argument goes. There have been some feminist criticisms of the privacy concept, but in general there has been widespread support for the concept, even when specific policies have been questioned as inappropriate uses of the right to privacy. This panel is designed to showcase some new work on the more ambiguous origins of the right to privacy. Legal historians are only beginning to chart the shifting shape of the public and private sphere and the ways that the courts have reacted to those changes; participants in this panel are all interested in examining the complicated history of the origins of the right to privacy. The panel will guarantee a variety of perspectives if not some conflict as to origins of the right. The commentators diversify the panel by bringing respectively government experience in the law of privacy as well as experience beyond the United States (Professor Flaherty) and the disciplinary perspective of political science (Professor Hearst) which has been much more ready to engage the intellectual problems of conceptualizing privacy than have historians who have more readily accepted that the growth of privacy was mainly evidence of modernization and secularization. We all hope that these perspectives will provide a fruitful exchange of ideas and perspectives for this panel.
Chair: Norma Basch, Department of History, Rutgers University at Newark
"To Marry, Establish a Home and Bring up Children": The Cultural Values of the Original Privacy Cases
Ian Mylchreest, Department of History, Monash University
Every modern privacy decision traces its roots back to Pierce v. Society of Sisters and Meyer v. Nebraska and dutifully recites the phrases about the right ". . . to marry, establish a home and bring up children." The invocation of these older cases was obviously designed to give some depth to what was soon assailed as an invented right. It rooted privacy in very traditional-sounding rights, and provided it with a usable past. These cases, however, embodied a different set of concerns about the autonomy of the individual in matters of child-rearing and conscience. They relied on an older intellectual tradition which posited a separate sphere of autonomy which in turn built on a nineteenth century language of natural rights. Such language revived in the late nineteenth century as a counterweight to the fears that the State and the market were coming to dominate all society. The laws struck down in Pierce and Meyer represented the intrusive power of the state, and the decisions posited the existence of a space beyond public regulation and commercial competition. One paradox, of course, is that the rationale in these cases was closely allied to the rights of property which also protected market capitalism. Nonetheless, these cases need to be put in a different historical context than the traditional one of substantive due process. This paper will attempt that historicization.
The Next Horizon in Abortion Technology: Roe, Griswold, and the Future of the Right of Privacy
Maria Harris Anderson, Department of History, Rice University
This paper examines how Houston's Planned Parenthood has evolved as an institution since 1936 in the legal, political, and social climate of the state and the nation. PPH was founded in the same year (1936) that the case U.S. vs. One Package of Japanese Pessaries was decided (legalizing the dissemination of contraceptives through the mails and essentially nullifying he Comstock Law that forbade it), and the services PPH has offered its clients have expanded as the courts have allowed them to expand.
However, I believe that the tables have been turned with the introduction of the latest abortion technologies. The introduction of RU-486, methotrexate, and early surgical abortion have put pro-abortionists--thus changing the debate for those on both sides of the issue of whether the right to privacy is really broad enough to encompass a woman's right to choose abortion--one large step ahead of courts, legislatures, and anti-abortionists, who in the past have wielded significant power to regulate the procedure. For the first time, low-tech surgical and chemical procedures (although neither painless or inexpensive) will put those who perform and those who wish to have abortions in the unique position of having privacy. My paper will argue this thesis and speculate as to how these new technologies will affect the right to privacy/abortion; how these technologies have been and may be (in the case of early surgical abortion) perceived in their social and political surroundings; and how the 100 years of privacy history that preceded their introduction has and will be altered.
Comment: David H. Flaherty, University of Western Ontario (on-leave); Information and Privacy Commissioner of British Columbia
Alice Hearst, Department of Government, Smith College