Lifewatch: Privacy and the Law

During those dark, mean days, in the summer of 1987, when Robert Bork was confronting the Senate Committee on the Judiciary, there was only one moment in which I was seized with the wish to trade places with Bork. The occasion came when Bork was being questioned by that doctor of laws, Chairman Joseph Biden (D.-Dela.). Biden had fashioned himself as an exponent of a new brand of natural law, rooted in a “right of privacy,” whose claims to privacy would find their prime expression, and first principle, in a “right” to contraception. At one point, in a combination of defiance and disbelief, Biden put this question to Bork: Could we ever imagine a situation in which a legislature might forbid the use of contraceptives, or even restrict their use, for mature adults?

Does a State legislative body, or any legislative body, have a right to pass a law telling a married couple, or anyone else, that behind—let’s stick with the married couple for a minute—behind their bedroom door telling them they can or cannot use birth control?

Listening to that encounter in my car, I wished I could leap into the hearing room, take Bork’s place for just a moment, and slam back an answer: “Yes, Senator, I can imagine such a case and such a statute, and it is the kind of statute that you are likely to support. The case might involve a woman who has used the Dalkon shield in the past with no troubles, and she finds now that this device has been removed from the market by a regulatory commission, working under a statute you have sustained, to police drugs for their safety and take certain products off the market. She now complains that she has used the Dalkon shield with no ill effects, that it is, for her, inexpensive and effective. And she argues that she should be free to make her own decisions about the risks she is willing to take with her own body in making decisions on reproduction. On what ground would the government presume to remove from the field of choice a product that she is willing to use upon her own body?”

The fact of the matter is that legislatures and courts are persistently making decisions to restrict contraceptive devices, even from the hands of mature adults. But these cases do not seem to break through the cliches that make up the jurisprudence on privacy and sex. They never seem to make the Bidens among us look again at the propositions they have put forth as legal postulates. Just this past summer, in the Casey case, Justice Anthony Kennedy signed on to an extravagant example of solipsism as a new principle of constitutional law.

That novelty came in the passage, quickly becoming famous, in which Kennedy and his colleagues proclaimed that the right to order an abortion is a right that must stand at the core of our being; that it is bound up with nothing less than “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Each person, apparently, has the freedom to conceive the cosmos anew according to his own angle of vision on his sexuality. Students of the courts were inclined to take that passage as a signal that the Court would have to abandon its decision of 1986, in the Bowers case, to uphold the statute of Georgia on sodomy. If the decision on sexuality is at the core of our personal being, of our identities as moral agents, then any restrictions on those private sexual lives would be called immediately into question.

And yet, just a few weeks ago, a panel in New York State offered another glimpse of the law, which points in a radically different direction. Between 1985 and 1987, New York City ordered the closing of seven businesses involving gay bathhouses and so-called “swingers clubs” for heterosexuals. The closings were ordered after inspectors had observed patrons paying entrance fees and then engaging in oral and anal sex, evidently with strangers or with acquaintances newly formed. The closures were ordered under the authority of a public policy, adopted in 1985, to prohibit “high risk” sex in public places. But of course, these were not public places; they were private establishments, and any of these activities could readily occur in private homes, in the guise of parties. Still, that does not seem to have diminished the conviction on the part of the authorities that they can reach these sexual engagements taking place in private settings. And so, a panel that advises the City Health Commissioner has strongly advised a more strenuous enforcement of these policies in order to deal with the special dangers posed by AIDS. At the end of February, the advisory council recommended that the law be amended to add to the prohibited activities “vaginal intercourse without a condom,” and to define sex without a condom as “high risk” sex.

Chairman Biden, where are you now? Six years ago, Biden thought it was unthinkable that public authorities could touch the matter of contraception, supposedly the most private of private decisions. And now, an official panel in New York thinks that the law can enforce a policy on compulsory contraception, or compulsory condoms, a policy that could reach heterosexual or homosexual acts, in the most private of settings, if they sin against the policy of prescribing condoms.

The question should earnestly be put to Chairman Biden and Justice Kennedy—and put to them either in official settings or in public discussions: Does this kind of policy not stand in radical opposition to those principles you have proclaimed so gravely on the privacy of these decisions about sex? The answer, in either direction, cannot help but be illuminating.

If Biden and company agree that this policy, undertaken with the tenderest liberal sentiments, violates the principles of privacy, then they can speak the words that would establish a barrier in the law to any policy of compulsory contraception. But if they back away, if they are willing to cede to local government some room to regulate these matters of sex in the name of health, then they may render an even more telling service: They would remind us that the law can reach judgments even about acts that are described as “sexual,” even if they take place behind private walls. And they would begin to dismantle that system of cliches, those fortune-cookie maxims on “choice” and “privacy” that they have strained their wit over the years to teach us, as though they were nothing less than doctrines of our law.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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