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56 U. Cin. L. Rev. 461 (1987-1988)
Taking Liberties: Privacy, Private Choice, and Social Contract Theory

handle is hein.journals/ucinlr56 and id is 475 raw text is: TAKING LIBERTIES: PRIVACY, PRIVATE CHOICE, AND SOCIAL CONTRACT THEORY Anita L. Allen* Decisional privacy arguments-arguments premised on the value of freedom from coercive interference with decisionmaking affecting intimate and personal affairs-are among the strongest for main- taining permissive abortion laws. Yet philosophers and legal theo- rists from diverse segments of the scholarly community have pointed to decisional privacy arguments for permissive reproductive rights policies as prime examples of conceptual confusion, male ide- ology, and judicial overreaching. First, conceptual confusion has been seen in the use of the expression privacy to describe free- dom to choose whether to give birth to a child. Second, male ideol- ogy has been seen in the articulation of reproductive liberty as a matter of privacy for women, when it is still men who dominate pri- vate life and ultimately decide women's procreative fates. And third, judicial overreaching has been seen in the Supreme Court's reliance upon an unenumerated constitutional right of privacy as a substantive limitation on legislation intended to protect unborn life, women's health, and the family. Each of these criticisms amounts to a recommendation that reproductive rights analysis be purged of decisional privacy arguments. This Article is a defense of decisional privacy arguments against charges of conceptual confusion, male ideology, and judicial over- reaching. In response to Griswold v. Connecticut,I Roe v. Wade,2 and other reproductive rights cases, a great deal has already been writ- ten about decisional privacy. Rather than exhaustively reassess all the important issues that bear on the jurisprudence of decisional privacy, I undertake a pair of more limited tasks. In Parts I and II, I clarify the senses in which privacy is impor- tantly at stake in the choice among competing reproductive rights policies. Privacy can refer either to conditions of restricted access or to decisionmaking free from coercive interference. In Part I, I argue that pernicious conceptual confusion about the meaning of constitutional privacy, stemming from a failure to carefully distin- guish privacy in its restricted-access and decisional senses, tarnished the Court's earliest procreative rights opinions but does not mar the * Associate Professor, Georgetown University Law Center; J.D., Harvard Law School; Ph.D., M.A., University of Michigan; B.A., New College. 1. 381 U.S. 479 (1965). 2. 410 U.S. 113 (1973).

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