Abortion and the Privacy Amendment
A U.S. citizen's "right to privacy" was first discussed in an 1890 Harvard Law Review article in which two Boston lawyers, Louis Brandeis and Samuel Warren, defined it as "the right to be let alone." Since then, the right to privacy has provided the basis for a stream of revolutionary and controversial constitutional interpretations by courts across the United States, culminating in the U.S. Supreme Court's Roe v. Wade decision in 1973. Although decisions have come down in favor of a right to privacy, they are largely based on a broad and disputed interpretation of the Fourteenth Amendment. With the plethora of privacy issues that confront courts and policymakers in the current information age, the time for an amendment specifying the inalienable right to privacy is quickly approaching.
Despite all the social, medical and religious undertones in the abortion debate, the Roe v. Wade opinion, written by Justice Harry Blackmun, has stood for twenty-four years on the basis that the right to choose an abortion is part of a woman's "right to personal privacy," a right that Blackmun stated is "founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action."
However, some contest that the Fourteenth Amendment does not strongly identify an inalienable right to privacy as a constitutional right. Justice Rehnquist, in the dissenting 1973 opinion, wrote, "the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely un-known to the drafters of the Amendment." For this rea-son, some scholars, as well as members of the current Court, consider Roe v. Wade a fragile decision that could be overturned by a later Court. Potentially, with Roe v. Wade could fall all the other decisions based on "the right to privacy" existing in the Fourteenth Amendment, in-cluding decisions which out-lawed most forced sterilizations and protected against police searches of ". . . marital bedrooms for telltale signs of the use of contraceptives."
A Rutgers professor summarized the problems deriving from the right to privacy when he wrote, "If human rights - such as the right to be let alone - are to enjoy the force of law, it seems desirable for the right to be spelled out carefully." The right to privacy is entirely a judicial interpretation and creation, meaning that it has little permanence or substance. Only a constitutional amendment can insure that one's privacy is an...