The U.S. Constitution Protects Privacy Rights—If You Know Where to Look

The U.S. Constitution Protects Privacy Rights—If You Know Where to Look
Abortion-rights supporters protest following the Supreme Court decision to overturn Roe v. Wade in Washington, June 24, 2022 (AP photo by Gemunu Amarasinghe).
Last week, the U.S. Supreme Court’s landmark ruling in Dobbs v. Jackson Women’s Health rolled back half a century of federally protected reproductive rights and reverted the authority to regulate abortion to the states. The ruling was celebrated by anti-abortion advocates and met with outrage from reproductive justice supporters. At the international level, it has been condemned by United Nations human rights officials and U.S. allies alike. It has also become a propaganda tool for U.S. enemies: The Taliban referred to the ruling to point out U.S. hypocrisy on women’s rights and argue that the sanctions against them should be lifted. The Washington Post’s Josh Rogin agrees. Among the court’s stated reasons for the ruling is that the right to privacy, on which the Roe v. Wade decision guaranteeing the right to abortion in 1973 was based, is not protected by the Constitution. As a result, the court argued, the power to regulate abortion must therefore be reserved by the states. This is hotly debated, since the Ninth Amendment to the U.S. Constitution states that the absence of an enumerated right does not mean it doesn’t exist. Moreover, as law scholar Michelle Goodwin explains, the 13th and 14th Amendments abolishing slavery were designed in large part to eliminate the legacy of forced reproduction and sexual slavery suffered by black women. Even if one doesn’t accept those arguments, however, the plain language of the Constitution contains another provision that makes it clear that the right to privacy is in fact protected and is the responsibility of the federal government to enforce. That requirement is not found in the Bill of Rights at all, but in Article 6, which stipulates that any treaties to which the U.S. is a party “shall be the supreme Law of the Land.”* Though the U.S. is not a signatory to the U.N. Convention on the Elimination of All Forms of Discrimination Against Women, in which the international standard on reproductive rights is most comprehensively spelled out, it has signed and ratified the International Covenant on Civil and Political Rights. Article 17 of that treaty explicitly protects the right to privacy: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Gendered language notwithstanding, Article 2 of that treaty makes clear that this right, and all rights, are meant to apply irrespective of sex. The convention also enumerates other important bodily integrity rights, including the right to liberty and security in Article 9, the freedom from servitude and compulsory labor in Article 8, and a general right to be free of sex discrimination in Article 2. As such, one might very well argue that a woman’s right to privacy or protection from bodily coercion is already protected by the U.S. Constitution, because it is enumerated in a treaty the U.S. has signed and ratified—a treaty that is therefore, according to the Constitution, the law of the land and by which justices are bound. The relevance of international treaty law to domestic judicial decisions is also demonstrated by prior legal precedent. In the 1916 case Missouri v. Holland, the U.S. Supreme court ruled 7-2 that obligations in treaties trump the freedom of states to ignore them. It is not surprising that the Supreme Court majority’s strict interpretation focused exclusively on the rights enumerated in the constitutional amendments, while ignoring the duty under Article 6 to incorporate obligations under international treaties into its decision.* But it is surprising that even the dissenting opinion of the court’s liberal justices made no reference to it either.

A woman’s right to privacy is already protected by the U.S. Constitution, because it is enumerated in a treaty the U.S. has signed and ratified, making it the law of the land.

This omission is especially noteworthy because, as summarized by the Center for Reproductive Rights—which filed the Dobbs case on behalf of Jackson Women’s Health, a Mississippi abortion provider—a series of amicus curaie briefs submitted to the court specifically invoked U.S. obligations under international human rights treaty law in their arguments in favor of reproductive freedom. One brief, submitted by a group of U.N. mandate holders—including the U.N. rapporteurs on discrimination against women and girls, protection from torture and the right to health—argued that overturning Roe v. Wade would put the U.S. in breach of its international human rights obligations. In another brief, a group of international human rights organizations reaffirmed these obligations and documented how women’s rights to life and health around the world are affected by whether or not countries comply with them. And a brief submitted by a group of international lawyers argued that the customary practice of states in implementing these laws has been to expand abortion access, not restrict it. Instead of referencing U.S. treaty obligations under Article 6, where binding obligations are spelled out, both the court’s majority and the dissent looked to international customwhat the majority refers to as “international norms”—to make their cases.* For instance, the majority cited a brief by the Charlotte Lozier Institute showing that “the US is one of only seven countries in the world that permit elective abortion past 20 weeks,” a claim that was corroborated by the Washington Post in 2017. In response, dissenters pointed out—also correctly—that the global trend has nonetheless been toward expanding, rather than restricting, abortion access: “More than 50 countries around the world—in Asia, Latin America, Africa, and Europe—have expanded access to abortion in the past 25 years.” Neither argument addresses the fact that, regardless of other countries’ behavior, the U.S. is required under its Constitution to enforce the international treaties it has ratified, rather than delegate this to the states. In this light, it is a puzzle why reproductive justice attorneys did not more forcefully press the court to consider the International Covenant on Civil and Political Rights, or why dissenting justices did not themselves invoke these international human rights treaty provisions in arguing against the ruling. But while this responsibility should not have been simply punted to the states, the obligations under that treaty are shared by the states. This means judges throughout the U.S. remain bound by the substantive dictates of international treaty law, according to Article 6 of the Constitution. As such, they are required to consider the International Covenant on Civil and Political Rights’ language in relation to the rights to privacy, freedom from involuntary servitude and forced labor, liberty and security of person. In what scholars sometimes refer to as a “boomerang effect,” human rights activists around the world have often drawn support from the international community and international networks for domestic human rights reforms by appealing to international law and standards. Perhaps abortion rights activists and legal defenders in the U.S. should consider doing the same. *Editor’s note: The original version of this article stated that Article 4, Clause 2 of the U.S. Constitution made treaties signed by the United States the supreme law of the land. It was Article 6. WPR regrets the error.

Charli Carpenter is a professor of political science and legal studies at University of Massachusetts-Amherst, specializing in human security and international law. She tweets at @charlicarpenter.

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