Judge Samuel A. Alito Jr., U.S. Supreme Court nominee, during confirmation hearings before the Senate Judiciary Committee, January 6, 2010. Image credit: Rob Crandall / Shutterstock
Justice Samuel Alito’s draft memo in Dobbs v. Jackson Women’s Health Organization, which overturns Roe v. Wade (1973), paves the way for future rulings likely to bring our nation back into line with the quainter times of our nation’s founding. Alito’s rejection of a woman’s right to an abortion derives from his legal and historical understanding of privacy, or at least, privacy for women, which he correctly understands as a chimera that did not trouble the dreams of our Founding Fathers.
While these eighteenth-century Republicans worried about invasive searches and seizures—they had, after all, been subjects of an occupying force that could at any moment have their homes ransacked for compromising political material—they did not imagine this principle extending to the privacy a woman might enjoy in conversation with a doctor. After all, whatever medical advice a physician might have for a woman would surely have been said in the presence of her father, husband or brother. At the founding, only men were empowered to make decisions about the treatment of a woman’s body.
Given that the legal right to an abortion was premised on the right to privacy established in a case involving the distribution of birth control, the Supreme court may one day uphold a ban on contraception. Because of the difficulty of enforcing such a ban, however, it is more likely that a Republican-controlled legislature would simply enact restrictions on the use and purchase of contraceptives, much as nineteenth-century legislators banned the transportation and sale of “rubber goods.” Like abortion, contraception has always existed in some form. And like abortion, contraception was also left unmentioned by the authors of the Constitution, who relied upon high infant mortality rates to take care of family planning.
But the Court might also imagine other remedies that permit contraception for a few people who might be endangered by pregnancy. Much as liberals clamor for background checks on the purchase of firearms, so conservatives may one day demand background checks for the purchase of birth control. At the very least, conservative legislators could insist that the purchase of any form of birth control be made in person, and not over the internet, and by prescription only. To show that such a purchase is not dependent upon any unenumerated right to privacy, the employee ringing up the sale could announce the sale, along with the customer’s name, over the store’s loudspeaker.
How did the idea of privacy—a concept that had very little meaning in the eighteenth century and is better associated with the rise of the nineteenth-century bourgeoisie—become so noxious to the Court’s conservative majority? Alito’s jurisprudence on this matter reveals a man gifted with extremely sensitive hearing yet cursed with myopic vision . . . as well as an underdeveloped sense of history. Thus while the Justice is deafened by the silence of the Constitution on rights it does not specifically name, the text of the Ninth Amendment—“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—appears to remain an illegible blur to him. One can imagine a host of changes to our society based on Alito’s draft ruling in Dobbs which vitiate rights to privacy that Americans have come to take for granted: medical privacy, the privacy of college transcripts, and marital privacy among them. The logical conclusion of Dobbs might do away with the few vestiges of privacy that remain in a nation where corporations have already compromised (and monetized) our personal information, and where the government already surveils the communication records of its citizens.
Taking Alito’s jurisprudence at face value, all rights not addressed specifically in a 234-year-old document that is roughly the same length as a feature article in an in-flight magazine could easily be expunged. Among such unenumerated rights we might include access to education, potable drinking water, and emergency medical services.
But the radical implications of Alito’s judicial philosophy will leave intact one unenumerated right that was taken for granted by the Founders: the right to feel shame and be dishonest about non-marital sex. Although the Supreme Court’s majority may have decided that privacy never was, and never shall be a right afforded to Americans, they remain steadfast in affirming our country’s longstanding commitment to secrecy born of shame.
We can count on Alito and his fellow conservatives on the Court to ensure that sexual education will never be taught widely nor comprehensively in schools, that addiction will continue to be criminalized, and that women, though they may have no right to privacy and thus no guaranteed access to the medical care that depends upon it, will continue to be discouraged from breastfeeding in public.
And as in the world the Founders knew, Americans will once again risk their lives to escape the consequences of unwanted pregnancies.
Peter Nohrnberg is a poet and a scholar of literary modernism. His poem “Pantoum After a School Shooting” won second place in the 2020 Morton Marr Poetry Prize competition and appears in the most recent issue of Southwest Review.