Abortion rights are privacy rights

Milos Novovic

An abortion ban threatens fundamental rights to privacy of information.

The US Supreme Court seems to be ready to permit abortion bans. That means it would leave the decision on the legality of abortion up to each state, so that abortion could be legal in California and illegal in Texas.

Women will lose control of their most private health information.

This would be extremely dramatic for the right to privacy. If abortions are made illegal, police officers and other government officials will need access to the full medical histories of women.

Private litigants, such as religious organizations, might also be entitled to bring legal proceedings against women, compelling them to share this information in an open court.

A right to privacy older than the Bill of Rights

In fact, privacy was the reason the Supreme Court permitted abortions. In the famous Roe v. Wade case in 1973, the court held that the right to privacy was broad enough to include a woman’s decision about whether to keep or terminate her pregnancy.

Roe v. Wade is not the first to link privacy and abortion. It builds on arguments going back much further. In a case about contraception in 1965, the Court wrote “we deal with a right to privacy older than the Bill of Rights - older than our political parties, older than our school system”, continuing that a ban on contraceptives would be “repulsive to the notions of privacy surrounding the marriage relationship”.

Terrifying implications

In 2022 the Supreme Court is ready to allow states to ban abortions. To justify their decision, they argue that the US constitution does not explicitly mention the right to abortion, nor does it explicitly mention the right to privacy.

For Europe it would be naïve to think that this is a purely American affair.

In such a reading of the constitution, the potential implications are terrifying. The right to use contraceptives, the right to love a person of the same gender, or the right to marry a person of another race could also disappear with on a whim. After all – they are not explicitly mentioned in the US constitution either.

This case reminds us why we have such strict limits on transferring personal data to the United States. Can anyone, in good conscience, send people’s data to a country which invalidates decades of privacy safeguards at the stroke of a pen?

Published 31. May 2022

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