Brown Undergraduate Law Review -- Vol. 2, No. 1 (Fall 2020)

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WAS PRIVACY A MISTAKE? ANEXAMINATION OF PRIVACY,LIBERTY, AND EQUALITY INREPRODUCTIVE FREEDOMRakhi KundraABSTRACTThis paper discusses the derivation of reproductive rights in American constitutional law. It specificallylooks at the way in which reproductive rights have been derived from notions of privacy, and eventuallyideas of liberty, in contemporary case law. Ultimately, utilizing the Ginsburg approach, I argue thatreproductive rights should be granted under an equal protection framework. In a revelation of theultimate dependency of privacy on liberty as granted in the Due Process Clause of the FourteenthAmendment, I will demonstrate how privacy, and freedoms pertaining to abortion and homosexualintercourse, become positive rights. I will then emphasize the duality between liberty and equalprotection in a discussion of constitutional liberty. As I reveal how the delivery of liberty requiresequality, I will utilize arguments made by Justice Ginsburg to assert that women can only achieve trueliberty and equal status by gaining full freedom over their reproductive decisions.Brown Undergraduate Law Review42
Was Privacy a Mistake? An Examination of Privacy, Liberty, and Equality in Reproductive FreedomAbortion is largely a moral issue in the United States?judicial and legislative decisions. While the granting orabortion and homosexual intercourse specifically becomepositive rights. I will then emphasize the duality betweenrestricting of women?s reproductive freedom is often liberty and equal protection in a discussion ofjustified under realms of privacy rights or the compellinginterest of the state, ultimately, conversations regardingwhether or not a woman has the right to make a choice thatwill impact the rest of her life are based on conceptions ofmorality. This reality was emphasized by Associate Justiceof the Supreme Court of the United States Ruth BaderGinsburg when she dissented against the ruling inGonzales v. Carhart (2007), which upheld the Partial-BirthAbortion Ban Act of 2003. Ginsburg wrote, ?Ultimately,the Court admits that ?moral concerns? are at work,concerns that could yield prohibitions on any abortion.? 1Moral arguments arise over the life of the unborn fetus,and these concerns have been largely assumed by thefederal government and the states in case law pertaining toreproductive freedom. Reproductive rights have thus beengranted under the realm of privacy? on account of theCourt?s reluctant acceptance of individuals?autonomy overtheir private lives? not due to an acknowledgement of awoman?s right to her body and of the gendered realitiesconstitutional liberty. As I reveal how the delivery ofliberty requires equality, I will utilize arguments made byJustice Ginsburg to assert that women can only achievetrue liberty and equal status by gaining full freedom overtheir reproductive decisions.In an examination of the way in which privacy rights arederived from liberty, and the reliance of liberty on theachievement of equality, I will argue that privacy is amistaken framework for allocating reproductive rights. Iwill show that equal protection requires addressing theways in which innate gendered realities place women in adisadvantaged position in society. Privacy fails in itssupposed embodiment of liberty, as it proves itself to beunable to meet these standards of equality. Finally, I willdemonstrate that privacy leaves room for the establishmentand perpetuation of a moral argument regarding the life ofthe fetus, and that an equal protection framework forgranting reproductive rights prevents the federal and stategovernment from infringing upon women?s liberty.that emerge out of pregnancy and raising a child.Privacy and LibertyHowever, I argue that under an equal protectionframework, abortion ceases to exist as a moral argumentand is instead one of liberty, freedom, and equality:fundamental rights granted to every citizen of the UnitedStates by the Constitution. I will demonstrate the necessityfor an equal protection foundation in granting abortionrights through a challenge of the existing privacyframework. Specifically, I will first examine how privacyrights are derived in cases of reproductive choice andsexual intercourse. In a revelation of the ultimatedependency of privacy on liberty as granted in the DueProcess Clause of the Fourteenth Amendment, I willdemonstrate how privacy and freedoms pertaining toPrivacy has been used to grant reproductive rights andsexual freedom in a number of cases throughout the pastcentury. While the right to ?privacy? is not specificallynamed in the Constitution, it has been deduced fromvarious amendments through case law. In this section, Iwill examine how privacy rights shifted from beingderived from amendments focused on protecting citizensfrom invasive governmental interference to those gearedtowards granting citizens with freedom and autonomy. Iwill show how privacy transitioned from existing as anegative right to a positive right, derived from liberty.The right to privacy was first employed as a negative right1. Gonzales v. Carhart, 550 U.S. 15 (2007).Brown Undergraduate Law Review43
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Brown Undergraduate Law Review -- Vol. 2, No. 1 (Fall 2020)

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