Affirmative vs. passive privacy in domestic violence and abortion

A “passive” version of the right to privacy — the “right to be let alone” — creates challenges for advocates against domestic violence. A more “active” version provides a viable alternative.

By Kristopher A. Nelson in

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In “The Violence of Privacy,” a chapter in a larger edited work from 1994 called The Public Nature of Private Violence, Elizabeth M. Schneider discusses the challenges posed to activists against domestic violence by mid-to-late twentieth century developments in privacy jurisprudence. She goes on to describe the potential for a shift from a more passive “right to be let alone” version of privacy — as articulated in, for example, Justice William Douglas’ majority opinion in Griswold v. Connecticut and traceable back to Warren and Brandeis’ 1890 law review article on privacy as well as Thomas Cooley’s earlier Treatise on the Law of Torts — with a more aggressive and affirmative version of privacy as a guarantee of liberty, and articulated by Justice Douglas’ concurring opinion in Roe v. Wade eight years later.

Much of her discussion reflects the challenges feminists have posed to the use of a “right to privacy” as the foundation for Roe, as opposed to, for example, a right to liberty. Schneider explains the argument that the value of the “abortion right” is not so much about preventing government intervention into the private sphere — nor about protecting the secrecy of the procedure — but rather that permitting abortions empowers women to be decision-making agents and that it is the government’s role to protect women’s right to “autonomy, self-expression, and self-determination.

She uses the example of the abuse of women by men in domestic situations to illustrate the problem of passive privacy, the “right to be let alone” version:

Privacy [of this kind] justifies the refusal of the state to intervene, of judges to issue restraining orders, of neighbors and friends to intervene or to call the police, of communities to confront the problem, and of social workers to act.

On the other hand, she argues, the more “affirmative” approach taken by Douglas’ concurrence in Roe emphasizes “autonomy, freedom of choice with respect to the basic decisions of life concerning intimate association, freedom from battering and coercion, and freedom to be themselves.”

In summary, Schneider suggests that the challenge is to “develop a right to privacy which is not synonymous with the right to state noninterference within the family.” Instead, privacy ought to be articulated as “grounded on equality,” as an “aspect of autonomy that protects bodily integrity” — and viewing abuse as impermissible — fosters a version that “is based on a genuine recognition of the importance of personhood.”