Brett Kavanaugh's Right to Privacy

The legal right to privacy is very old. It's just that privacy used to be an exclusively male privilege.

Photo by Jackie Hope on Unsplash

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All of a sudden, privacy rights matter to the same conservatives who just stripped women of ours — because powerful men are seeing their privacy violated.

Of those those men is Supreme Court Justice Brett Kavanaugh, who signed on to the majority opinion to overturn Roe v. Wade and strip abortion rights from American women. Kavanaugh is apparently having a bad month. Protesters have gathered at his home. They shouted outside a steakhouse he was dining at — and ok, he didn’t see or hear them, but he didn’t stay for dessert. “Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner,” the restaurant chain, Morton’s Steakhouse, said in a statement. “There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.”

“"So these Justices, because protesters do not agree with an opinion... have no right to privacy?" asked right-wing commentator Steve Doocy.

“Even conservative justices have a right to privacy,” writes Ruth Marcus at the Washington Post.

This is, of course, extremely ironic: Roe v. Wade was decided on the basis of a constitutional right to privacy, which Kavanaugh and his fellow conservative justices just called into question when they overturned it. But here’s the thing: Roe didn’t invent the legal concept of a right to privacy; neither did Griswold v. Connecticut, the first case that we associate with the constitutional right to privacy that eventually brought us the rights to contraception, abortion, consensual sex without criminalization, and same-sex marriage. The idea that there is a sphere of privacy around the home and one’s familial, sexual, and domestic life is one long enshrined in American culture and jurisprudence — it’s just that the privacy right was held by men.

Which is also why we’re seeing people, with a straight face, promote radical governmental interference all the way up into the extremely private space of women’s uteruses now wring their hands about Brett Kavanaugh’s privacy being violated because he couldn’t order the crème brûlée: The right to privacy is a privilege long reserved for men.

The US is now just one of just four countries worldwide that has restricted, rather than expanded, abortion rights in the past 25 years, and American conservatives are clear that they have no plans to stop there. The language of the opinion in Dobbs vs. Jackson Women’s Health, the case that overruled Roe, goes much farther than just abortion rights, and hints at what’s to come: a possible end to the broad legal rights to contraception, sexual privacy, consensual sex between adults, and even same-sex marriage.

What ties all these issues together, though, isn’t just the fact that the cases securing them are bound by the same legal theory (although that’s also true). It’s that each of these rights represents an important step away from the enforcement of male authority in the home, and male dominance outside of it.

Partly at issue in the Dobbs case that took away American women’s right to abortion was the concept of substantive due process — essentially the legal theory that individuals have a fundamental right to privacy and personal liberty, and that there is a high bar for government interference into people’s reproductive, sexual, and marital lives. As the 1973 majority opinion in Roe says: “This right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy."

Using this theory, the Supreme Court has spent the last five decades striking down a series of laws that criminalized contraception, abortion, sodomy, and same-sex marriage, and ushered in a revolution for women’s and LGBT rights. With contraception and abortion broadly legal, women thrived: we went to college in record numbers, lived longer, had healthier children, made our way up the professional ladder, and gained unprecedented political, economic, and social power. And while homophobia still abounds, it has never been more socially and legally acceptable in the United States (and in the industrialized world more broadly) to be gay. However, that era, focused on securing basic legal rights to control over one’s own body, one’s sexual choices, and one’s marital union, appears to be over.

While the majority opinion in Dobbs is clear that past cases securing the rights to contraception (Griswold v. Connecticut), consensual same-sex intercourse (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges) are questions for another day, some of the Court’s conservative judges weren’t so evasive. “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” wrote Justice Clarence Thomas in his concurrence.

I have no doubt that they will. Each of these cases put another crack in an antiquated hierarchy. Like Roe and abortion rights, each of them could be walked back if five unelected Supreme Court justices decide it should be so.  

While conservative lawyers often talk loudly about the importance of substantive due process — which they claim is illegitimate, contrary to decades of analysis from judges appointed by Republicans and Democrats alike — what really sticks in the collective conservative craw isn’t a legal theory but real-life outcomes. Contraception, abortion, sexual freedom, decreasing the stigma around homosexuality and sexual diversity more broadly — all of these upend a long-standing social order in which men were not only the heads of their families with authority over women and children, but also the family’s representative in the public, political, and economic spheres.

This structure gave men tremendous power. It gave them a near-monopoly on financial power, for instance; as the people who were overwhelmingly working outside the home, they enjoyed control not just over how money might be spent, but on whether a wife could leave (where does a woman go if she is totally financially dependent on a husband?).

It also gave them far greater power over women’s bodies. In the pre-Roe era, there was certainly a presumption of privacy for the sexual and marital spheres. But the difference was that it was men, and not women, who held that right. Law enforcement routinely refused to interfere when men beat their wives because such acts were “private”. Marital rape wasn’t a crime in all 50 states until 1994, and even now it comes with significant exceptions. Criminalizing raping your spouse generated significant right-wing backlash, and the question of whether a man can even rape his wife, given that he should have unlimited sexual access to her as a condition of their union, continues to be controversial among Republicans.

The opposition to outlawing marital rape stems from the idea that what happens in the marital bedroom is private — and that when a woman gets married, she signs herself up to be sexually available to her husband, her own preferences be damned. “We need to stay out of a man’s bedroom,” former Republican Rep. Charlie Sharpe announced in 1990, when his state of South Carolina was debating a marital rape law.

This is the patriarchal vision of privacy: that men have dominion over their wives, children, and households, and the state may not interfere in that private, male-headed sphere. Shifting this privacy right to women doesn’t just put women on equal footing as men; it undermines the whole concept of the male-headed household. And including same-sex couples in this privacy right similarly undermines it: after all, a family or even just a sexual pair of two men or two women calls into question the very necessity of a patriarchal family unit.

Conservatives often accuse feminists of destroying the traditional family, and in a way, they’re right. But what feminists didn’t invent is a right to sexual and marital privacy. We’ve simply made the case that those privacy rights are fundamental for everyone. We’ve questioned the idea that the state must stay out of a heterosexual man’s bedroom and his marriage, but should extend its reach underneath a gay man’s sheets, or up a person’s uterus.

It's this shift — to sexual privacy rights vested in the body, and not just in the man — that sent conservatives into a tailspin. It’s why so many commentators are in a tizzy over the privacy rights of Brett Kavanaugh, when they deny privacy rights exist at all for a woman.

It’s why the conservative anti-abortion movement has never been about abortion alone, but rather about a much broader hostility to any move that puts individuals outside of the realm of male authority. That’s why, for all of the screeching about “life” in the abortion debates, you don’t see American conservatives or self-identified “pro-lifers” do much at all to preserve or protect human life. It’s why the states with the most restrictive abortion laws also tend to have the highest rates of maternal and infant mortality: while they funnel time, money, and effort into restricting abortion and contraception and fighting to discriminate at will, they do not dedicate the resources necessary to saving the lives of mothers and babies.

It's why, too, this conservative legal tidal wave is unlikely not stop at abortion rights.

The right to end a pregnancy is just one small part of a broader constellation of laws that narrowed the realm of patriarchal jurisdiction, and chipped away at the presumption of male sovereignty over women and the family.

A number of conservatives want to see this jurisdictional realm expand again; they want to see this presumption return. And it’s that desire to return to unquestioned male authority in a compulsory nuclear family, not simply substantive due process, is what ties together the line of cases that begins arguably with Griswold, the contraception case, and runs through Roe and later Lawrence, the sodomy case, and Obergefell, the same-sex marriage case.

And it’s also that fealty to male authority above all else that makes the protection of and concern for Kavanaugh’s privacy square with the total denial of reproductive and sexual privacy of LGBT people and women.

xx Jill

This newsletter is 100% supported by readers like you, and this is the free edition. If you’re enjoying it and want to support feminist-minded journalism and commentary, consider upgrading to a paid subscription — every dollar goes to sustaining this project. And always, thank you for reading.