The future of privacy rights in a post-Roe world | Hacker News Reader

The future of privacy rights in a post-Roe world

axios.com

42 pointssamizdis88 comments

Oh, your privacy rights are perfectly safe. You just don't know what those rights are going to be from one day to the next. I have great respect for judges, but altering decades-old precedents under the claim that such rights never actually existed boarders on gaslighting.

Everyone agrees that the right to privacy is in the constitution.

Disagreement is if right to abortion comes from right to privacy. I don't see how it does. Because the constitution doesn't explicitly mention abortion it falls on those who see it as a constitutional right to show their work. Especially since abortion has historically been illegal especially after the baby's first movement.

So I wonder, why do you think the right to abortion stems from the right of privacy?

> So I wonder, why do you think the right to abortion stems from the right of privacy?

Because that is what the ruling in the case of Roe vs. Wade was, so it's been precedent in the United States for almost 50 years that the right to an abortion explicitly results from the right to bodily privacy.

> Everyone agrees that the right to privacy is in the constitution.

The recent Supreme Court ruling asserts that the right to privacy is not in the constitution.

>Because that is what the ruling in the case of Roe vs. Wade was, so it's been precedent in the United States for almost 50 years that the right to an abortion explicitly results from the right to bodily privacy.

Your argument appears be that precedents should never be overturned. If that's correct, your argument is obviously bad on the face of it. If that's wrong, I wonder what your argument actually is.

You could read Roe instead of asking?

I mean, you can just refer to the Roe v. Wade judgement to understand the Supreme Court's view on why that is the case.

But Roe v. Wade (and abortion being protected under a right to privacy) was changed

Right, but the argument for why one would consider it to be protected is clearly spelled out in the original court case – regardless of any subsequent ruling.

And you can refer to Dobbs to understand the Supreme Court's view on why it isn't the case.

You asked why somebody would think that the right to privacy is applicable in this situation. There is ample material describing why they might think that, including a Supreme Court judgement. It's not a difficult position to understand, regardless of whether you believe that view or not.

The existence of other material, including a later judgement, supporting the view that this isn't the case does not invalidate other views.

(In the region known as the United States of America,) Abortion has actually historically been legal until the baby's first movement, which is four or five months. It's only fairly recently where things like banning abortion before pregnancy is even visible was implemented.

Such a blanket statement is false. Different countries and cultures have “historically” had very different rules around abortions.

Okay, let me edit my post to clarify that I'm speaking in the country where this discussion is happening, because it's about the supreme court decision of a specific country, lol.

> Everyone agrees that the right to privacy is in the constitution.

That is demonstrably not true. Robert Bork may be dead, but many folks still believe what he said, which was that the Constitution does NOT guarantee a general right to privacy. Thomas specifically argued that the court should also look at overturning the right to contraception, private consensual sex, and gay marriage specifically because the same privacy right underlies those rulings.

One more thing to add the above comment. The ruling in Loving v Virginia, which is what allows interracial marriages like Thomas' to exist in Virginia in the first place, is also based on substantive due process (which is what underlies the privacy right in all these cases).

Quite conveniently, Loving v Virginia was not one of the rulings that Thomas argued needed revisiting.

Loving v Virginia is based both on due process and equal protection. He's not necessarily a hypocrite to be against Loving but not Roe.

But he did call out Obergefell, which is also based on equal protection, so he is very much a hypocrite for calling out that but not Loving.

Historically, abortion has been more often legal than illegal.

It was made illegal in the period from 1847 to 1880, and stayed that way until 1973 (roe v wade). Of the 246 years since the declaration of independence, abortion has been fully legal for 120 years, illegal in a patchwork of states for 33 years, and illegal fully for 93 years.

A good twitter thread with some fun re-framing of the history of abortion:

https://twitter.com/jskilesskinner/status/154116414331471462...

> I have great respect for judges

Conversely, I have about as much respect for these judges as I'd have for a bench comprised solely of Kanye West and Kim Kardashian (which is, to be fair, more respect than for a bench that included Roger B. Taney).

Honestly, I would be less upset at a Kim Kardashian appointment than most. She's a billionaire, so I'd have a hard time supporting it, but she's going to be as qualified as Amy Coney Barrett in just a few more years.

Roe vs Wade upended precedent before it, so precedent alone is a bad argument. The majority ruling specifically rebutted what it thought were nonsensical arguments in the Roe decision for tying the right to privacy to some inherent right in the constitution. Neither right should be viewed as constitutional and even if the right to privacy were, tying abortion to it is a fantastical leap of logic.

Yes, Roe did create a new right. But in creating that right it didn't take anything from anyone else, at least any living person. It took away the government's right to interfere with one aspect of an individuals life. This new ruling strips an existing right from the individual and returns it to the government. Only law students would see symmetry such a thing. People are allowed to be mad that today they are less in control of their lives than they were yesterday. They are allowed to be mad at government finding yet method to regulate their lives.

(I'm also a little shocked that the anti-big-government crowd isn't also screaming mad about this. All those rights they think they still have are also now on the table.)

> the anti-big-government crowd isn't also screaming mad

We anti-big-government crowd types are hopeful that the right to privacy that was invented by the supreme court in 1973 and revoked by the supreme court in 2022 will be added via the correct, non-reversible legislative process it ought to have been back then.

So you're expecting the government to solve a problem created by the government? That seems rather unwise, especially since in the interim you are losing rights as time goes on.

Especially when people are cheering on the side that's removing said rights because people would ban abortion, same-sex marriage etc no matter the cost.

> the government to solve a problem created by the government

The supreme court is the government too...

A constitutional amendment to enshrine a right to privacy/abortion is about as likely as Texas leaving the union to become part of Canada.

Not sure if you're right or wrong, but either way - far from destroying democracy, that is democracy in action. If the majority wants abortion, we get abortion. If the majority doesn't, we don't.

But the United States can hardly be called a democracy with gerrymandering, unelected federal judges, unequal representation for populous states in congress, and the electoral college.

The majority does want abortion rights, but those rights aren't coming. That's not democracy in action.

It isn't a democracy. It is a republic. It is rule by the people via a very specific system, one that isn't about simple majority rule.

Also known as not something that actually works

> If the majority wants abortion, we get abortion. If the majority doesn't, we don't.

The majority does want abortion, and yet we just lost it.

> far from destroying democracy, that is democracy in action

Do you still believe this, given that your next sentence is patently false?

> But in creating that right it didn't take anything from anyone else, at least any living person

The fetus is a "living person" according to many biologists

> Only law students would see symmetry such a thing

Have you been in any law classroom?

> The fetus is a "living person" according to many biologists

It's also not a "living person" according to "many" biologists.

I'm very confused about how people can square the two ideological positions of 'small government' and 'anti-abortion'. Roe v Wade explicitly barred the government and the states from interfering with a private individuals decision. The overturning of said decision empowers the government and increases their power.

People should be very afraid of decisions like these which take away rights from people.

What about the right to vote on abortion laws?

1. Roe was based on the precedent set by griswold.

2. What legal precedent did roe upend? I can’t think of any.

Every case where a woman/doctor was charged for actions in relation to illegal abortion. And every time those convictions were affirmed by lower courts.

That’s not what legal precedent is.

Otherwise anytime a law is passed, we’d consider it “overturning precedent”.

Precedent means that there is a long string of legal jurisprudence on a subject. Obviously roe/griswold created a new one, but it didn’t overturn/upend an existing one.

If we had a right to privacy under the Constitution, did I imagine employers prying into a person's vaccination status, without repercussions?

I know, I know, "private company" and all that, but we already have a broad range of illegal questions for private & public employers--like age, genetic information, birthplace, country of origin, disability, gender, sexual orientation, marital status, pregnancy, race, color, ethnicity, religion. Seems like past medical procedures would also fit nicely in that list.

It may be worthwhile to amend the Constitution with an explicit right to privacy. In hindsight, conjuring one through judicial activism was not the way to go about it.

The best solution may be be to make personal health information (PHI) broadly inadmissable in any non-medical evaluation, decision, assessment, proceeding, or investigation, and then establish specific test criteria for unlocking it for admission. In Canada, our health system cards and numbers are officially not recognized as a form of ID for related reasons.

Regarding the bans in those states, do they ban providing the service within the state, or does it ban having the procedure anywhere at all? The privacy impact is very different depending on that rule.

The work I've done with health information and privacy and consent directives management has always been a kind of second-best solution. We (Canada) have privacy laws to protect PHI and to require consent for collection, use, and disclosure of your PHI, but agencies regularly run roughshod over it, there is almost zero prosecution or enforcement, and both the research and public health cultures openly express contempt for individual privacy. Even when it comes to reproductive health information, many academic researchers tend to act as though they are entitled to it. The vaccine passports were an example of that culture's approach to bodily integrity and use of personal health information, and while abortion is a different issue and should be treated by itself, they are under the same privacy concept. I wouldn't expect them to treat abortion and reproductive information as any more sacred.

How long do you think it's going to take before your fitness tracker makes reports to your insurance and credit company that impact your premiums and interest rates? Banks are using "alternative data" sources for credit decisions already today. The abortion issue may be a forcing function for privacy questions, and I could see a lot of interests rushing into the policy vacuum this leaves.

> do they ban providing the service within the state, or does it ban having the procedure anywhere at all?

AFAIK, this has not been tested yet. Although most people seem to be under the impression that states only have jurisdiction within their own borders, not generally over anyone who calls that land their home. I'm sure it will find its way to the supreme court eventually.

> How long do you think it's going to take before your fitness tracker makes reports to your insurance and credit company that impact your premiums and interest rates?

This already happens, though it is voluntary. Both with fitness trackers, and in the case of car insurance with OBD2 trackers that phone home with your driving habits.

> Banks are using "alternative data" sources for credit decisions already today

Heck, not just banks. E.g. Best Buy uses alternative data sources to decide whether or not you are allowed to return an item that you've purchased.

At some point I hope we at least pass a law that says something to the effect of "all data that can be reasonably tied to an individual is required to be available for review and correction, and all businesses engaged in the collection or use of such data shall be publicly registered as such." Or we could just make the data collection (or at least sharing) illegal outright. That'd be nice.

>> do they ban providing the service within the state, or does it ban having the procedure anywhere at all?

States have substantial powers in this area. If they declare the unborn to be a "person" then they can do things to protect those people from being removed from the state. Some are talking about charging women with murder should they travel to another state for an abortion. The rules about people moving between states to take advantage of different laws are very old. They go to slavery and allowing or not allowing people to move between slave and free states. Similarly, the rules governing how and when people are extradited between states go back that far too. We could soon see states like New York refusing to extradite women charged with an abortion-related offenses. This would mirror very old cases of escaped slaves not being returned.

Look up Nate the Lawyer on youtube for a non-partisan breakdown: https://youtu.be/rPsIaYmh-bo

> What to watch: Much of daily life happens online, and if the Supreme Court continues down this path, that internet activity could become fodder for criminal investigations.

Huh? It certainly already was before this reversal.

I know the sky is falling, but this seems really speculative to me. Maybe so speculative that it misleads the reader.

It's hardly speculation. Go read Clarence Thomas' opinion. He did not mince words.

Relevant quote from https://www.bbc.co.uk/news/world-us-canada-61928898 (a few days ago)

'Justice Clarence Thomas, in his opinion, wrote: "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell" - referencing three landmark decisions of the past on the right to contraception, the repeal of anti-sodomy laws, and the legalisation of same-sex marriage respectively.'

It's both funny and sad to see Thomas basically say he wants to gut pretty much all decisions based on the right to privacy and then explicitly carve himself an exception for the interracial marriage decision because vague "well this one has historical precedent" (as if people weren't gay, or having butt sex before 1776).

It really shows that he decided he wanted to overturn Roe, worked backwards and then realized this decision might affect him.

Loving v Virginia didn’t cite a right to privacy in its decision. It was based on equal protection and a “right to marry”.

Thomas is an extremist but leaving out loving isn’t a right to privacy carve out.

> It was based on equal protection and a “right to marry”.

How can one then go after same-sex marriage?

Good question.

Keep in mind that this is only Thomas who is publicly stating this position.

The basis for Obergefell is much broader than what was just overturned with roe, and so I would consider it on firmer legal footing than roe was, alito alluded to as much in his opinion.

At the same time all it takes is 5 votes to win a case, so who knows.

I didn't think Obergefell mentioned the right to privacy either?

It was based on a right to marry and equal protection, but did make a reference to a right to privacy as well:

> "The Constitution promises liberty to all within its reach," the Court declared, "a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity." Citing Griswold v. Connecticut, the Court affirmed that the fundamental rights found in the Fourteenth Amendment's Due Process Clause "extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,"

https://en.wikipedia.org/wiki/Obergefell_v._Hodges?wprov=sft...

Just like ending Roe V Wade was mere speculation.

Serious question: did the court ever refer to the same privacy right in non-abortion cases?

Yes, specifically Thomas' concurrence argues that the privacy is the same right that underlies Griswold (right to contraception), Lawrence (private consensual sex), and Obergefell (same sex marriage), and so Thomas thinks those should be overturned as well.

Interesting that these are all 'liberal' decisions. Do conservatives not desire privacy, or is it just that we haven't had a conservative right that needed a way to be defended. I guess a lot of things like freedom of religion and gun rights are enumerated in the constitution. In general not having a right to privacy doesn't seem reasonable in a free world. The recent scandal about California leaking gun owners seems like it could lead to a conversation about the right to privacy for gun owners. The constitution mentions a right to bear arms, it doesn't say we have to keep that gun ownership secret. Seems like this might be particularly true for the anti-government militia crowd.

IANAL. Privacy qua Griswold (and subsequently Roe) is a limited application of privacy as is commonly understood. A full right to privacy in a classically liberal sense is a right to keep something from the knowledge or access of any or all others by means of (but not limited to) omission or oath. If a right to privacy in this sense were to be applied to the CCW scandal, one could argue that California (or any state) should never have required disclosure of gun ownership in the first place or (should such information have been disclosed by the owner voluntarily) that California had violated a promise to keep such information secret unless otherwise noted.

I looked at his concurrence and my impression was that he's saying that if substantive due process goes the way of the dodo then those decisions need to be revisited, but he didn't say reversed, and I got the impression that he wants at least some of them on a more solid foundation.

> then those decisions need to be revisited, but he didn't say reversed

Lol, then I've got a bridge to sell you. Thomas dissented vociferously in both Lawrence and Obergefell, it's clear he wants to overturn them, not even he is trying to hide that fact. His Obergefell dissent was especially nauseating because he was trying to say how we was so "offended" that Loving was even construed to be analogous to Obergefell.

He's a typical "I've got mine, fuck you" conservative.

Thomas said we could maybe think about finding a different justification for some of those rights “[a]fter overruling these demonstrably erroneous decisions." Sounds like he wants them reversed to me!

Obergefell v. Hodges (regarding same-sex marriage) explicitly references this same right.

Yes. Griswold v. Connecticut (case about the legality of banning contraception) is a pre-Roe example of privacy-as-bodily-autonomy. Post Roe, the same privacy right has been used to, among other things, prohibit state-mandated abortion (https://casetext.com/case/arnold-v-board-of-educ-of-escambia...) and sterilization (https://casetext.com/case/avery-v-county-of-burke).

But there's no privacy in things not related to contraception and abortion?

What about vaccination? What about data? What about metadata?

I suspect for data and metadata the answer is "the 4th Amendment covers that, see 4th Amendment jurisprudence", but that's not enough because that only limits the state and state agents, and even then not at all as to metadata, and barely as to data.

There is a tradition of data and metadata privacy based on Brandeis's "The Right to Privacy" from 1890. You are correct that this tradition is partly rooted in 4th amendment jurisprudence, but it has deeper foundations in English common law. Amy Gajda's Seek and Hide is an accessible introduction to the area if you are looking for a deeper dive into the subject.

Many of the landmark privacy-as-bodily-autonomy decisions are related to reproductive health, but there are others. McFall v. Shrimp is another important case in the area and concerns forced medical procedures rather than reproductive health: https://en.m.wikipedia.org/wiki/McFall_v._Shimp The court found in that case that an individual could not be compelled to donate bone marrow, even though it was necessary for another to live, because that would violate "the sanctity of the individual."

Thanks!

The limited privacy right in Roe was invented by the Warren Court to decide Griswold vs Connecticut (contraceptions). The only other case where I recall privacy being explicitly mentioned is Lawrence vs Texas (sodomy), a case which directly derives from Griswold.

Yes, it's the basis of HIPAA rights, and the case legalizing gay marriage, interracial marriage, abolishing anti-sodomy laws, the list goes on...

No, the basis of HIPAA rights are that Congress actually passed a law titled the Health Insurance Portability and Accountability Act that outlines the privacy requirements associated with healthcare.

HIPAA is a law, not a constitutional right, and interracial marriage had nothing to do with a right to privacy in the constitution. You’re confusing the entire doctrine of substantive due process with its specific application in finding a right to privacy in the constitution.

It was often referred to in decisions about whether mental patients can refuse treatment, see Rogers v. Okin for one example.

> The intrigue: The Dobbs decision may prompt tech companies to minimize the data they collect. It could also recharge Congress' effort to pass a national online privacy law.

Certainly that would be a good outcome from the Dobbs decision!

If I may paint with a broad brush for a moment, it is cute watching the coasties--who derive a great percentage of their regional GDP from an all-out assault on the privacy of damn near everyone in the civilized world (adtech, analytics, finance [credit scores / front-running trades], e-commerce, "data science" [analyzing the shit out of all those privacy violations], AI [don't get me started])--go into meltdown over the loss of a "right to privacy" that was imagined into the Constitution in the first place.

I don't have strong opinions about abortion or a Constitutional right to privacy (real or imagined). I just suffocate on the hypocrisy of these people.

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