On Wednesday, the conservative Heritage Foundation announced what appeared to be an abrupt shift in position on one of the most contentious issues in American constitutional law. Heritage now supports a “constitutionally protected right to privacy.”
Before we sacrifice our constitutionally protected right to privacy at the altar of gender identity politics… https://t.co/wDMwaI94Br
— Heritage Foundation (@Heritage) June 29, 2016
Although Heritage’s tweet concerns the ongoing battle over whether the state should dictate which bathroom transgender people use, it is grounded in a much older fight. The notion that the Constitution protects an unenumerated “right to privacy” forms the basis of many of the Supreme Court’s decisions protecting sexual freedom and bodily autonomy. In Griswold v. Connecticut, a decision Heritage previously criticized as “activist” because it created “a ‘right’ not found anywhere in the text of Constitution or our nation’s laws and traditions,” the Court held that a right to privacy protects married people who wish to use contraception. More recently, in Roe v. Wade, the justices clarified that this privacy right is “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.”
In the past, Heritage also has not been especially complimentary towards Roe v. Wade.
Another organization that, in the past, has disparaged Roe and the right to privacy that it rests upon is the Alliance Defending Freedom (ADF), the largest and most prolific legal organization advancing a conservative Christian agenda in the nation. “I hope you and your family will join me in praying for a speedy end to the horror of legalized abortion in America,” ADF president Alan Sears wrote in 2015. Earlier this month, ADF criticized the right to privacy that forms the backbone of decisions like Griswold and Roe as “invented.”
So it is a bit discombobulating that, if you click the link in Heritage’s tweet endorsing a constitutional right to privacy, you will be taken to an article hosted on a Heritage website and authored by Matt Sharp, an ADF attorney. In it, Sharp breaks with his organization’s longstanding opposition to the legal theory underlying cases like Griswold and Roe, emphasizing that the right to privacy is “most important for those” who are “most vulnerable.” It’s the sort of line that could have been written by pro choice groups opposed to laws that force poor women to drive long distances and overcome financially burdensome obstacles in order to obtain an abortion.
But, of course, Heritage and ADF are not actually reversing their position on the constitutional right to an abortion. Instead, Sharp’s piece is about a pair of lawsuits filed by ADF which attack school policies that allow transgender students to use bathrooms and locker rooms that align with the gender identity. As one of those lawsuits explains, ADF’s new position is that permitting trans students to use such facilities violates “a fundamental right to bodily privacy” which is “grounded in the Fourteenth Amendment’s Due Process Clause.”
It’s a legal claim that, to borrow from Heritage, is “not found anywhere in the text of Constitution or our nation’s laws and traditions” (ADF contests this point by, among other things, comparing a trans-inclusive bathroom policy to child pornography). Just as importantly, it is also a profound break from the conservative legal community’s well-established approach to arguments that the Fourteenth Amendment protects a “right to bodily privacy.”
“There is no right to privacy, no generalized right to privacy,” the late Justice Antonin Scalia announced in a 2012 interview. When interviewer Chris Wallace pointed out that the Supreme Court said otherwise in Griswold, Scalia replied “indeed it did, and that was — that was wrong.”
Similarly, Judge Robert Bork, the failed Supreme Court nominee who is still spoken of by many conservatives as if he were a martyr who died on a cross for their sins, labeled Griswold “an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right.” Heritage’s Edwin Meese, who previously served as attorney general under President Reagan, labeled the right to privacy “nonconstitutional.”
This has been the position of Roe v. Wade’s most prominent opponents for as long as most lawyers can remember — a principled position that the Fourteenth Amendment right to privacy is not protected by the Constitution, and that it should be scrapped by the Supreme Court.
And now they have abandoned that principled position. Because they don’t like trans people.