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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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