Title

Personal Autonomy: Towards a New Taxonomy for Privacy Law

Publication Date

Summer 2010

Document Type

Article

Abstract

In 1965 the Supreme Court in Griswold v. Connecticut protected the right of married couples to receive contraceptives as a right of privacy. Since that time, scholarship in the area of privacy law has coalesced around two main themes: First, commentators have classified privacy cases to present a unified concept broad enough to encompass many contexts — from tort, to Fourth and Fifth Amendment search and seizure, to decisional autonomy case law. Second, there is vigorous debate whether decisional autonomy is properly sourced in privacy law. These inquiries leave unanswered an important question: What, if anything, has been the lasting effect of the Court squaring decisional autonomy with the law of privacy? In this article, Personal Autonomy: Towards a New Taxonomy for Privacy Law, I argue that the case law heretofore referred to as decisional autonomy should be uncoupled from privacy law and reclassified in an entirely separate but existing line of cases. To better articulate this law, it should be given a new name: the law of personal autonomy. When the Court originally characterized decisional autonomy as privacy, it limited the scope and power of this important right, stunted its growth, and left it vulnerable to criticism and erosion by the courts. Strictly speaking, the Court has been slowly moving away from decisional autonomy as privacy. Despite this trend, however, the Court continues to conceptualize decisional autonomy in spatial and informational privacy terms, still referring to a “zone free from governmental interference.” This article offers a new taxonomy, not merely for classifying this wide-ranging area of law, but to illustrate how the Supreme Court’s understanding of decisional autonomy cases continues to be shaped and limited by spatial and informational privacy case law. By aligning the right of reproductive autonomy with unrelated rights of privacy, the Supreme Court has effectively limited the protection of women’s reproductive autonomy and devalued the importance of the right at stake. Re-ordering of privacy law is both necessary and timely: It will allow this area of law to be better articulated, grow more naturally, and confront new challenges, such as those posed by new so-called woman-protective legislation. When we re-conceptualize reproductive rights as personal autonomy, we elevate them from rights derived from spatial concepts to a right related to bodily integrity.

Publication Title

Women’s Rights Law Reporter

Volume

31

Issue

4

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