The right to privacy frames so many of our reproductive protections.
Take for example Griswold v. Connecticut (1965) which decided that a state cannot outlaw contraceptives due to the “right to marital privacy.” And who can forget the epic legal stylings of Roe v. Wade (1973), which protects the choice to have an abortion as a privacy issue between a woman and her doctor.
For the most part, we probably all take these rights for granted.
But you know who disputed this basic right to privacy as grounded in legal doctrine? The late Judge Robert H. Bork who died Wednesday, December 19.
Bork, who was famously denied a seat on the United States Supreme Court in 1987, was in large part rejected because of his narrow, strict constructionist views on privacy, which, it was thought, would turn back recent civil rights and women’s rights gains.
Just listen to Atticus Finch:
Or, as the Lion of the Senate put it, “In Robert Bork’s America, there is no room at the inn for Blacks and no place in the Constitution for women. And in our American there should be no seat in the Supreme Court for Robert Bork.”
Simply put, Bork thought the right to privacy was not a right guaranteed in the Constitution. Instead, the right to privacy, Bork argued, was created from the bench with Griswold, an example of legislation from the bench, a battle in the Culture War:
“Griswold is more plausibly viewed as an attempt to enlist the Court on one side of one issue in a cultural struggle.”
Yeah, he wasn’t too crazy about Roe v. Wade either:
“Roe v. Wade is an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.”
So whenever you hear this:
You have Bork's intellectual influence to thank.
On a side note, both South Carolina Senators Strom Thurmond and Ernest Hollings voted in support of Bork’s nomination. Hollings was only one of two Democrats (the other being David Boren from Oklahoma) to vote yea.
Ok, so fine. He’s a strict constructionist. Not my cup of Constitutional tea, but fine. Until you hear his position on executive power, which, former Senator Arlen Specter (who also died earlier this year) questioned him on at his nomination hearing. According to the New York Times reporter Ethan Bronner:
“Mr. Specter…quoted Judge Bork as having written that under the Constitution, executive power had to evolve. Why then, Mr. Specter wanted to know, shouldn’t other constitutional concepts — like individual liberty — have a chance to evolve as well? The senator accused Judge Bork of selecting evolving rights based on his own preferences rather than neutral principles.”
Bork, Specter’s interrogation seems to suggest, plays the constructionist card unevenly, selectively defending the conservative values he wants to evolve.
Bork’s legacy lives on through opponents of reproductive justice denying our right to privacy. It’s up to us to defend our right to privacy and protect our reproductive freedoms.