Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

Overtrning Roe isn’t all the Supreme Court did this week which was disastrouus. It also weakened the rights of states to administer their own policies, with its decision to overtuen New York’s concealed carry law, and that opens another wholw can of worms. As well, it made the separation of church and state unconcstitutional. But what I want to address here is the overturning of Roe v Wade.

The basis for the Roe v Wade decision in the first place was the concept that, though it nowhere says so in so many words, the Constitution guarantees every American a right to privacy, including a right to make personal decisions for oneself, without interference from the government. It is that which the Court has stripped away (and pretty explicitly too.) It has been stripped from men as well sa from women, from children as well as adults, from white people as well as from black and brown people, fron straight people as well as from LGBTQIA+ people. Those who are worried about this decision have mentioned Loving and Obergefell and whichever decision it was that guaranteed access to contracepton. All these depend on the right to privacy. And now that’s gone. What now?
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Privacy isn’t in the Constitution – but it’s everywhere in constitutional law

Scott Skinner-Thompson, University of Colorado Boulder

Almost all American adults – including parents, medical patients and people who are sexually active – regularly exercise their right to privacy, even if they don’t know it.

Privacy is not specifically mentioned in the U.S. Constitution. But for half a century, the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my research on constitutional privacy rights, this implied right to privacy is the source of many of the nation’s most cherished, contentious and commonly used rights – including the right to have an abortion – until the court’s June 24, 2022, ruling in Dobbs v. Jackson.

A key component of liberty

The Supreme Court first formally identified what is called “decisional privacy” – the right to independently control the most personal aspects of our lives and our bodies – in 1965, saying it was implied from other explicit constitutional rights.

For instance, the First Amendment rights of speech and assembly allow people to privately decide what they’ll say, and with whom they’ll associate. The Fourth Amendment limits government intrusion into people’s private property, documents and belongings.

Relying on these explicit provisions, the court concluded in Griswold v. Connecticut that people have privacy rights preventing the government from forbidding married couples from using contraception.

In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an abortion, the court held that the right of decisional privacy is based in the Constitution’s assurance that people cannot be “deprived of life, liberty or property, without due process of law.” That phrase, called the due process clause, appears twice in the Constitution – in the Fifth and 14th Amendments.

Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities.

The right to privacy protects the ability to have consensual sex without being sent to jail. And privacy buttresses the ability to marry regardless of race or gender.

The right to privacy is also key to a person’s ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a grandmother could move her grandchildren into her home to raise them even though it violated a local zoning ordinance.

Under a combination of privacy and liberty rights, the Supreme Court has also protected a person’s freedom in medical decision-making. For example, in 1990, the court concluded “that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”

Limiting government disclosure

The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist noted in 1977, the “concept of ‘privacy’ can be a coat of many colors, and quite differing kinds of rights to ‘privacy’ have been recognized in the law.”

This includes what is called a right to “informational privacy” – letting a person limit government disclosure of information about them.

According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist – both conservative justices – suggested in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life. Lower courts have relied on the right of informational privacy to limit the government’s ability to disclose someone’s sexual orientation or HIV status.

All told, though the word isn’t in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded – such as in a future Supreme Court decision – many of the rights it’s connected with may also be in danger.

This story was updated on June 24, 2022, to reflect the Supreme Court’s decision in Dobbs v. Jackson Women’s Health.

Scott Skinner-Thompson, Associate Professor of Law, University of Colorado Boulder

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Alecto, Megaera, and Tisiphone, without the right to privacy, and with this particular Court comprising these particular justices, there may be no limit to the rights which may be stripped away, from all of us. In fact, with this Court, it may not even matter if progressives achieve commanding majorities in Congress and the White House. We may already be living in a fascist country, details to be released as the fascists deem appropriate.

The Furies and I will be back.