Friday, September 19, 2008

Privacy Rights and Equal Treatment

Not only is Hillary on top of the financial crisis, she is front and center on defending our right to privacy and equal treatment before the law.

Hillary and Cecile Richards, president of Planned Parenthood, have an op-ed in the NYT today, Blocking Care for Women. It is a short peice, so please click through and read it all. For me, the key paragraphs are these:

The rule would also allow providers to refuse to participate in unspecified “other medical procedures” that contradict their religious beliefs or moral convictions. This, too, could be interpreted as a free pass to deny access to contraception.

Many circumstances unrelated to reproductive health could also fall under the umbrella of “other medical procedures.” Could physicians object to helping patients whose sexual orientation they find objectionable? Could a receptionist refuse to book an appointment for an H.I.V. test? What about an emergency room doctor who wishes to deny emergency contraception to a rape victim? Or a pharmacist who prefers not to refill a birth control prescription?

The Bush administration argues that the rule is designed to protect a provider’s conscience. But where are the protections for patients?

It is not just abortion. That is the wedge. It is having a right to receive all medical care available and not have procedures, medications and options preemptively withheld because someone else decides that A) it is their business to investigate your medical history and B) it is their right to infantalize you and substitute their desires for yours. This is another reason why UHC is vitally important - it empowers the person seeking treatment to be able to abandon medical providers who seek to coerce or punish.

I've argued before that the crucial civil right missing from the Constitution is an explicit right to privacy. The attack on Roe, and before Roe on Griswold, coming from the Right has precious little to do with moral questions. On the part of the foot soldiers, it has to do with removing one of the most important powers a woman has in modern society, which is to be in control of her pregnancies. It's part and parcel of the misogyny we've seen on parade for the last year. Among the power brokers, who probably do want to control the fertility of the women around them, the true issue is preventing people from claiming privacy against the intrusion of institutions, corporations and the state.

When medical providers are exempted from providing medical services based upon their opinion of what is acceptable, moral, appropriate, etc., then they are given a material, legally defensible property claim on your body, if only to exclude your physical form from being treated equally with other forms. The power to prohibit is the flipside of the power to compel, and both are coersive.

The Democrats cannot fight a battle for privacy rights solely on defense of specific procedures. The Republicans have shown that they will reduce and restrict any procedure, from abortion to contraception to simply receiving full information, until there is nothing left. It has to be done on broader grounds, not restricted to a subset of women's health procedures, and with the clear understanding that the overarching goal is privacy for the individual citizen.



Anonymous said...

I wholly agree with your post. It shouldn't be too hard for Dems to argue that control of your own space is a fundamental human right. As a lawyer, I've often had debates, though, with peers about whether the privacy right theory (or, technically, substantive due process) was the right way to go with Roe or whether equal protection was the better way. With the latter, if you're going to tell a whole class of people (women) how to run their lives in fundamental ways, you'll have to face strict scrutiny to justify that, and based on more than paternalism or William Saletan-style musings about how a procedure gives him the icks. I've never really been able to decide between the two as far as providing a stable and enduring basis for this kind of right. I'd be interested to see what you or anyone else thinks.

Ivory Bill Woodpecker said...

Off-topic: on Sept. 23, the state of Georgia is preparing to execute a man whose guilt is very doubtful.

Details at