Tag Archives: Roe v. Wade

Privacy Is Not a Patriarchal Value

Laurie and Debbie say:

In reflecting on the issues of Sarah Palin’s family, Amanda at Pandagon writes about privacy and autonomy.

I find it interesting how the McCain/Palin campaign tried to shut down the P.R. disaster that is Bristol Palin’s pregnancy by calling for privacy, which was, just short of their invocation of “choice”, about hiding behind feminist values to assault feminism itself, since they wish you and your family have neither privacy nor choice when it comes to management of your life. But what I find especially interesting is that “privacy” was not actually a feminist value until it had to be in order to get reproductive rights established. Which isn’t to say that I’m against respecting people’s privacy, but that rooting reproductive rights in the value of privacy instead of autonomy and self-determination has actually created some massive problems for us.

Privacy is a double-edged sword. Outside of its use by feminists to get what we want (reproductive rights) without scaring people by arguing for women’s equality, privacy is generally a patriarchal value. It shields rapists and wife-beaters. The sense that women are the private property of men is still more ingrained in our society than the idea that uteruses are the private property of women.

We respectfully disagree. The very nature of “patriarchy” involves the right to know the business of everyone under the control of the patriarch. “Private property” is not even close to being the same thing as privacy; in fact, privacy is the thing that no “property,” be it slaves, wives or children as property, or pets, ever gets to have.

The rape and assault issues reflect the complexities of privacy, not who supports it. Everyone wants to be able to shield the things they are ashamed of, guilty about, or would get in trouble for, from the public eye. We believe that when those are facts that society has a right to know–such as who is being hurt behind closed doors, who is stealing from our common resources, who is lying about our safety–those facts should be immune from privacy. There will always be disagreements about where that line lies: patriarchs or not, we’re likely to take our own best interests into account in where we draw it.

Yes, “privacy” can be used as a protective device for parents who molest their children, or for date rapists. It can also be used by marginalized individuals and groups, and everyone else, to protect ourselves from the prying eyes of the state, their employers, or random people on the Internet. If privacy was a value of the patriarchy, would the patriarchal Bush administration be constantly inventing new ways to invade it? Would Sun Microsystems CEO have said as early as 1999, “You have zero privacy. Get over it.”?

While we were writing this post, Laurie said “privacy is the big issue of the first part of the 21st century.” In a sense, it’s the new issue–the one that we haven’t been fighting out for centuries. A world where your potential employer can find out about your high-school indiscretions, your neighbors can review your arrest record, a department-store employee can steal your identity, and a stolen or misplaced laptop can open you up to financial or medical disaster is a whole new world. We mostly read about the people who can’t cope or have been caught unawares–sad and very true stories. We also see a lot of people learning new strategies to protect their privacy, and/or to draw intricate lines between identities so that some things about them never become public.

Amanda goes on to discuss some legal history.

Only after men got a right to sexual privacy spelled out in Griswold did the Supreme Court extend it to women in Eisenstadt and Roe. It’s very fashionable to say Roe was badly decided, but rarely do I see such critics (usually male critics) argue that it should have been rooted in the belief that women have an equal right to our bodily autonomy. Which is really the only argument that I think would have actually help lift the debate out of the muck it’s in. Men have a right to father an actual child who is a living, breathing person with a birth certificate and then refuse to give that child a kidney if it needs one to survive. Surely women have a right not to be forced to donate our bodies to people who aren’t even people yet.

The public conversation around reproductive rights in the United States over the last thirty years has absolutely not been a conversation about privacy. Feminists consistently demand and discuss women’s autonomy and our rights to our own bodies. The common language, of course, is “pro-life” and “pro-choice.” Intense anti-abortion activists and intense pro-abortion advocates alike don’t discuss this as a privacy issue, and neither does the media, or people on the street. But we thought we’d also take a look at Amanda’s legal/constitutional arguments:

Griswold, which permitted married couples to use contraception, protected couples (perhaps it had to do so to protect men, but nonetheless the result was arguably more useful to the women who would bear the children) based on a simple right of privacy. Eisenstadt, which extended the right of contraception to unmarried couples, extends those rights on the basis of equal protection. And while Roe did legalize abortion using the right of privacy, reading the opinion makes it clear that they were using the word “privacy” in a very technical way which is not what we mean when we use the word in daily speech:

The opinion of the Roe Court, written by Justice Harry Blackmun, declined to adopt the district court’s Ninth Amendment rationale, and instead asserted that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” … Thus, the Roe majority rested its opinion squarely on the Constitution’s due process clause.

For those of you who haven’t memorized the Constitution, the Ninth Amendment is kind of a catchall to the Bill of Rights, saying that this list of rights should not “deny or disparage” other rights. The key piece of the Fourteenth Amendment, which gave citizenship rights to former slaves, is “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And “due process” is the theory that says that you can’t deprive people of some rights just because you have given them other rights.

Therefore, Roe rests on the principle of citizenship rights, “personal liberty and restrictions on state action,” not really on what we mean when we say privacy.

It is the case that a father can refuse to give a child a kidney; so can a mother. That’s not a man’s right, it’s a parent’s right. Children are among the most marginalized groups in our society, and we certainly don’t seem to believe in their right to any privacy at all.

It would be nice to believe that a different legal foundation for Roe would have gotten us out of the reproductive rights mess, but it’s hard for us to see how that could have worked. Meanwhile, trusting the patriarchy to protect your privacy doesn’t seem to be a very good strategy.