Publication Date

Summer 2017

Document Type

Article

Abstract

Supreme Court privacy jurisprudence has traditionally offered greater protection to activities when exercised within the home. This is true in common law as well as across a broad range of constitutional claims. For example, common law privacy identifies the home as a location of solitude and repose, often conceptualized as the “right to be let alone.” Speech, or the right to be free of unwanted messages, is enhanced when the claimant is within the confines of her or his home. Fourth Amendment protections against search and seizure and the notion of the reasonable expectation of privacy are enhanced when the defendant is within her or his home. In contrast to other constitutional claims, however, this Article argues that reproductive self-care — care that takes place in the home rather than in a healthcare setting — receives less constitutional protection when exercised in the privacy of the home. Most frequently, restrictions on reproductive self-care in the home take the form a “doctor requirement”: laws that require that reproductive care be performed in a formal healthcare setting, often requiring that a doctor be physically present. While the doctor requirement is imposed in several contexts — including self- insemination, miscarriage management, abortion, and home birth — this Article will focus on how the doctor requirement impacts pregnant people’s privacy rights in the home in the context of medication abortion. It considers a previously unaddressed question: Why is the home treated differently in cases of abortion-related self-care than in other constitutional moments and what does that difference reveal about this type of regulation? I conclude that laws imposing a doctor requirement are unconstitutional because medication abortion at home falls within privacy law’s traditional protection of spatial, relational, and decisional privacy. What is more, the doctor requirement reveals that rather than a realm of reproductive privacy, the home has become a site of increasing regulation of reproduction in the guise of benign medical protectionism.

The anomalous treatment in law of reproductive self-care at home, when compared with the law’s treatment of other types of constitutional and common law claims, offers a rich opportunity to consider how claims of reproductive autonomy, protecting health, and the privacy of the home coalesce in reproductive self-care to reveal underlying tensions in regulation in this area. I argue that medication abortion in the home falls squarely within the protections of privacy jurisprudence, especially the holding in Griswold v. Connecticut, because this home-based care engages both aspects of traditional privacy case law: First, the home has been identified as a zone free from third-party intrusion and governmental surveillance and the home in medication abortion serves to shield pregnant people seeking abortion against surveillance. Second, the doctor requirement in medication abortion engages privacy as a right of autonomy of reproductive decision-making. Finally, medication abortion falls within the right of privacy of intimate association as abortion at home allows pregnant people to end their own pregnancies surrounded by their chosen company and familial support.

While acknowledging that medication abortion falls within privacy law’s framework of spatial, relational, and decisional privacy, I draw upon critical and feminist legal scholarship to argue that the doctor requirement reveals that public, private, and state-sponsored harm are imposed on pregnant people ending their pregnancies at home that are not adequately captured in privacy’s conceptual framework of individuals exercising rights in the privacy of the home. The Court’s privacy analysis that identifies the home as a critical zone of protection against state surveillance and intrusion fails to acknowledge the ways in which medication abortion at home implicates private violence, third party harassment and surveillance, and state-sponsored surveillance and regulation in the lives of pregnant people. What is more, the privacy analysis fails to consider the ways in which politics and policies that deny access to abortion-related healthcare creates the conditions under which pregnant people turn to medication abortion in the home due to long travel, cost, waiting periods, immigration checkpoints, violence and harassment at clinics, to name only a few. This is especially true for pregnant people who are living in poverty, of color, or with compromised immigration status because pregnancies for these vulnerable groups are disproportionately subjected to surveillance through public health insurance, public support agencies, and immigration check-points. In short, the doctor requirement reveals how a myriad of political, structural, and economic forces work in tandem to deny authentic rights of privacy in its traditional sense to pregnant people exercising reproductive self-care in the home. While the doctor requirement falls within privacy’s framework, it simultaneously reveals how insubstantial the privacy analysis is in articulating interest at stake with respect to the right of dignity and autonomy of pregnant people seeking to exercise reproductive self-care in the home.

Publication Title

Constitutional Commentary

Volume

32

Issue

2

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