WHEN the Supreme Court announced in Webster v. Reproductive Health Services that the right to terminate an unwanted pregnancy could be impinged by state legislatures, our nation lost more than a woman's constitutionally guaranteed right to choose an abortion. This is because that right to choose was based on an even more fundamental liberty - our constitutional right to privacy. The federal right to privacy has always been somewhat elusive because it is nowhere specifically enumerated in the US Constitution. In its beginning, the Court attached the right of privacy to property, especially to private papers. In Griswold v. Connecticut in 1965, Justice William O. Douglas first announced for the full Court what he long believed - the Constitution confers a basic right of persons to be free from government interference.
The Griswold case challenged a Connecticut law that forbade the use of condoms. Plaintiffs in this case were a married couple who argued that what they did in the privacy of their bedroom was none of the state's business. The Court agreed.
With no precise textual basis in the Constitution, the Griswold Court reasoned that many of the rights which are specifically enumerated point to a right to privacy. These include: the Third Amendment's guarantee against homeowners being forced to quarter soldiers; the Fourth Amendment's ``right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....;'' the Fifth Amendment's right against self-incrimination; and the Ninth Amendment, which announces that ``The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.''
By the time of the decision in Roe v. Wade in 1973, the Court found that several of its decisions ``... make it clear that only personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy. They also make it clear that the right has some extensions to activities relating to marriage; procreation; contraception; family relationships; and child rearing and education ....''
The decision to terminate a pregnancy or to carry it to term may be the most precious of those guarantees of personal privacy because, as described by constitutional scholar Laurence Tribe, it represents the intersection of sexual freedom, reproductive autonomy, and bodily integrity.
Under Chief Justice Burger many of the personal rights and individual liberties that the Warren Court had interpreted as secured by the Constitution began to wither. This process has greatly accelerated under Chief Justice Rehnquist. Almost every time the current Court has ``balanced'' the rights of the state against the rights of an individual, the state has won. One of the least heralded of these cutbacks has been the right to privacy.
Retrenchment began in the 1970s when the High Court held that police could tape conversations and inspect bank records without consent or a warrant. In 1976 the Court announced that passengers in a car had no realistic expectation of privacy, a ruling extended in 1982 to allow warrantless searches of briefcases and other closed containers within the car. In 1983 decisions allowed police searches - without warrants or probable cause - of travelers' luggage and boats on inland waterways, and in 1984 of private property surrounded by fences and ``No Trespassing'' signs. In 1986 the Court said police could fly a plane low enough to search a person's back yard. In 1987 they sanctioned the warrantless search of a barn next to a house, in 1988 the perusal of a person's garbage, and in 1989 the use of a helicopter flying low enough to search a greenhouse for marijuana.
This last decision caused Justice Brennan, in dissent, to cite the chilling similarity to George Orwell's ``1984'':
``The black-mustachio'd face gazed down from every commanding corner. There was one on the house front immediately opposite. `BIG BROTHER IS WATCHING YOU,' the caption said.... In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people's windows.''
The most ominous portents of Webster were the Court's two recent drug testing decisions that allow the government to conduct mass urine searches among railroad and customs service workers. Pregnancy is one discovery that can be made through urine testing. In fact, it was recently revealed that this capability has been used against female applicants to the Washington, D.C., police force asked to submit urine samples as part of their application ``physicals.''
More than anything else the founding fathers wanted to protect citizens from government. Therefore, the Constitution carefully limits the government's ability to intrude on our lives. The Constitution does not care how laudable a government goal might be; it simply restricts the means the government may use to reach its goals.
Roe v. Wade was not as much about a constitutional right to choose an abortion as it was about the Constitution's guarantee of freedom from burdensome interference with the right to decide. Similarly, in purporting to protect the state's interest in the potential life of a fertilized egg, the plurality in Webster v. Reproductive Health Services was deliberately misleading. The ruling was not about whose life should take precedence; it was really about who should make such important decisions in a context of caring and continuing responsibility.