A privacy amendment? 

Roe v. Wade is dead. Now what?

The impact in California and the other blue states is negligible, and abortion will continue to be available in those states. But more potentially impactful is the court's finding that the "right to privacy" that the Roe court "discovered" in the Constitution does not actually exist. This has implications for other areas applying this right, such as contraception, medical care, and the regulation of sexual behavior.

This reversal illustrates the pitfalls of using the judiciary to impose public policy. Judicially created policies lack the social legitimacy afforded to policy created through the political process, as most people can grudgingly accept being outvoted. And policies created by an unelected Supreme Court not only lack moral force, but also lack permanence. Here, a new right "discovered" by the Roe court was later "undiscovered" when the ideological composition of the court changed. Easy come, easy go.

Congress is considering new laws to ensure access to abortion, but the outcome is far from certain. As the electoral defeat of same-sex marriage in uber-liberal California showed in two different elections, the electorate is often unwilling to embrace the left's agenda. As inflammatory as the issue is, most moderate politicians in contested districts just wish the issue would go away and would rather be caught in the congressional cloakroom "mentoring" an underaged intern than take a stand on the record.

So, how do you make a new right permanent? A constitutional amendment.

Of course it is a difficult process, but the idea of a "right to privacy" would initially enjoy broad support among both liberals and conservatives, at least until the implications settled in. Liberals would want to protect abortion, same-sex marriage, and other priorities, and cranky old conservatives like myself would enjoy getting government out of our lives. Few people like the idea of government injecting itself into their personal affairs. Many people believe that, even if the Constitution doesn't have such a right, there should be a right to privacy—a right to be left alone.

The initial problem would be defining the limits of any amendment that protected abortion. While the majority of voters reportedly support abortion in general, a majority also oppose abortions later in the term. Would the pro-choice absolutists, who demand complete bodily autonomy, be willing to support a limited right to abortion? After all, the Mississippi statue challenged in Dobbs v. Jackson, the case striking down Roe, provided for abortion on demand up to 15 weeks, and later upon a medical emergency or fetal deformity—limitations that the pro-choice forces found unacceptable and chose to challenge. The Mississippi law may more closely approximate the sentiments of the voters than would allowing all abortions without restriction.

A twist to consider is the fact that settling on terms might involve political compromises creating nationwide restrictions that limit the abortion rights currently allowed in less-restrictive blue states. Would pro-choice forces in those states be happy about any reduction of access?

The next hurdle for such a constitutional amendment would come when people realized that a broad "right to privacy" or a "right to bodily autonomy" could be asserted by their ideological foes to permit behavior that they disapproved of. People would face the dilemma of deciding whether protecting their own privacy or autonomy was more important to them than indulging their urge to control the lives of others.

Liberals, who prefer an expansive and often intrusive government, would find a lot of their agenda jeopardized. For example, the absolute right to bodily autonomy asserted in the abortion battle, might also be asserted to challenge mandatory vaccinations for COVID-19 or HPV, face masks, restrictions on the drugs we are allowed to use, the ban on polygamy, smoking restrictions, seat belt laws, the Obamacare insurance mandate, or various "nanny-state" laws.

A recent commentary in this paper noted the contradiction between supporting a "right to bodily autonomy" as to abortion, while denying it to those who object to vaccinations ("Bodily autonomy," June 30). Those who responded, arguing that vaccinations are a good idea and should be required, missed the point. If you create a broad universal right, it is going to be universally asserted in cases in which it is applicable, not just to those situations you approve of.

Would cultural conservatives, with their love of old-fashioned values, be willing to tolerate abortion, same-sex marriage, gay and extramarital sex, or assisted suicide in order to limit governmental intrusion into their own lives?

Tough choice! There are two strong opposing drives here: our desire to be left alone versus our emotional need to control "those people." Are we willing to give up telling others how they should live in order to get others to leave us alone? Can we tolerate the annoying "wrong-headedness" of others and curb our urge to use government to correct them?

Do we truly want a right to bodily autonomy if it applies to everyone, and not just to ourselves? Δ

John Donegan is a retired attorney is Pismo Beach, who is powdering his wig for the coming constitutional convention. Send a response for publication to [email protected].