Opinion, Berkeley Blogs

Privacy should arm the many, not just shield the few

By Jill E. Adams

When it comes to our most intimate experiences and decisions, the right to privacy should arm the many, not just shield the few who can afford to pay for it. We’ve learned in the years since Griswold v. Connecticut that privacy is not a panacea for the fulfillment of all people’s sexual and reproductive rights. The right to privacy has not granted secure and reliable respect for decisions we make in our bedrooms and about our bodies. This is especially disappointing in a country that places such a legal and cultural premium on matters of autonomy and individualism – particularly in the private sphere.

Cast in the mold of Griswold’s privacy-based right to use contraception, the right to choose abortion declared in Roe v. Wade similarly presents an important avenue but imperfect vehicle for everyone’s guaranteed arrival at reproductive self-determination. Courts have allowed the proliferation of countless contractions, exemptions, and restrictions on the rights to abortion and contraception, siphoning power out of the hands of individuals wishing to exercise their reproductive rights and into the hands of states, corporations, and institutions wishing to constrain or control them.

Is privacy really a “right” if you can’t afford to exercise it?

The abstract right to use reproductive health services  free from governmental interference rings hollow without the necessary, enabling conditions to ensure access to such services and the ability to make decisions about them free from coercion by person, system, or circumstance. For low-income people, and other marginalized populations, the right to privacy may merely be a right on paper if it is not a right they can actually afford to exercise.

Take, for example, the Hyde Amendment, an annual appropriations rider prohibiting federal Medicaid coverage of abortion with exceptions for life-threatening pregnancies or those resulting from reported rape or incest. Nine million women of reproductive age rely on Medicaid for their health insurance, and seven million more women may become eligible under the Affordable Care Act. A Medicaid recipient in any of the 33 states that does not provide state funding for abortion must cobble together the funds ($470 on average) to pay for the procedure out of pocket. This often forces her to forgo paying for rent, utilities, or food, and delays the abortion until a later stage of pregnancy when costs and risks (still slight) increase.

Government’s preference pierces privacy

While Medicaid does not cover abortion care, it does cover maternity care expenses for other pregnancy outcomes. This skewed funding scheme inserts the government’s preference into intimate decisions about reproduction that ought to be made privately and free from undue influence.

The constitutionality of the Hyde Amendment was hotly contested and narrowly upheld in Harris v. McRae, which held that while the government cannot place a substantial obstacle in the path of a woman seeking an abortion, it need not remove an obstacle (i.e., her poverty) not of its own creation. Justice Brennan was among the dissenters in McRae who were concerned that the disparate funding scheme could influence, or even coerce, a poor pregnant person’s constitutionally protected decision. He explained that the right to privacy, as articulated in Roe, stood for the proposition “that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman’s freedom to choose whether to have an abortion.”

That “enormous power and influence” acts as a wrecking ball bursting through the delicate bubble of privacy said to protect a pregnant person’s decision making process with a one-sided, strings-attached offer to foot the bill.

It’s time to take McRae to task.

From the standpoint of a pregnant person on Medicaid, laws that restrict the provision of abortion are not different from laws that restrict the funding of abortion; they both obstruct her ability to get the health care she needs. However, the McRae opinion’s arguably arbitrary distinction between imposing and removing obstacles has calcified in the legal discourse to separate abortion funding restrictions from all the others. This is not a forgone conclusion, and McRae is not an incontestable precedent.

As my co-author and I discuss in a recent article, the McRae decision was a grave miscarriage of justice that needs our attention. We must reinvigorate the conversation in the legal community about Medicaid coverage of abortion and raise awareness of this little-known case. Through scholarly critique and the development of plausible legal arguments, we can work toward an eventual reversal. With McRae overturned and public insurance coverage restored, the abortion right will again be more reality than rhetoric for poor and low-income people who will be free to make unadulterated decisions about their reproductive lives. With that, Griswold’s legacy of the right to privacy will expand to encompass the reproductive realities of the many and not just the choices of the few.

Cross-posted from American Constitution Society's blog.