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A History of Privacy Politics

MORE THAN FORTY YEARS after it was decided, Roe v. Wade remains in the public eye. Scholars describe Roe as “America’s most controversial decision,” “undoubtedly the best-known case that the Supreme Court has ever decided.” Indeed, a 2015 survey conducted by the television network C-SPAN found that Roe was the only Supreme Court decision recognized by a majority of Americans.1
It is no surprise that pollsters often identify Roe with a woman’s right to choose abortion. The decision remains the most potent symbol of a conflict about reproductive rights that has bitterly divided the United States. Since 1992, the Supreme Court has no longer applied Roe’s trimester framework, but commentators still frame each major abortion case as a referendum on Roe. During presidential campaigns and judicial confirmation hearings, Roe appears as a symbol for legal abortion. Others make Roe stand for a range of related issues, from the fate of the sexual revolution to the agenda of the women’s movement.2
But this is not Roe’s only meaning. For many, Roe reflects a growing commitment to a brand of equality that emerged in the 1970s, one that required identical treatment but stopped short of remedying the effects of past subordination. After all, the Court suggested that all women needed to avoid the burdens of pregnancy and achieve equal status was freedom from the government, not more active support.3
Others believe that Roe captures the spirit of a culture of individualism that was ascendant in the 1970s. The decision defined a right to personal privacy and played down the ways in which communities, family members, or the government could share responsibility for an unplanned pregnancy. Still others see Roe as an embodiment of new national interest in small government. Between the Watergate scandal and the Vietnam War, more Americans in the 1970s began to see the government as part of the problem. Some think that Roe mirrors declining faith in the state, particularly since the Court questioned the legitimacy of government involvement in crucial areas of American life.4
However, if Roe reflects how American law, culture, and politics fundamentally changed in and after the 1970s, that story is far more complex than we often believe. Scholars have studied how social movements resisted the nation’s rightward turn in the 1970s. Others have documented how groups from religious conservatives to environmentalists called for more, rather than less, government involvement. But by studying those who incorporated Roe into their rhetorical agendas, we can also see that many activists used the very language of privacy and individualism to describe different paths that the country could take. To the extent that the decision embodied a new cultural turn, social movements throughout the 1970s and beyond used Roe to contest what the new individualism would mean.5
But even in the 1970s, the abortion issue was intensely divisive, and scholars had already questioned the reasoning of Roe. If Roe was a flashpoint for controversy, why did any movement make the decision a symbol for its cause? Because of the uproar surrounding legal abortion, Roe was an unusually visible symbol. Moreover, Roe’s right to privacy hinted at more than liberty from the government. The decision emphasized the importance of individuals’ ability to make the most crucial decisions in life for themselves. In this way, the Court’s decision pointed to a possible relationship between time-honored ideas of personal privacy and new demands for individual self-control. Using Roe as a symbol allowed a wide variety of social movements to take advantage of a possible relationship between privacy and individual choice.
Roe also served as a valuable weapon for social movement members redefining the relationship between the right to privacy and the role of government. The Court suggested that the judiciary would step in to protect personal rights against other powerful actors. Activists claimed that just as the courts could not protect abortion rights by standing idle, other branches of government had to do more to create meaningful privacy.
To be sure, many activists who invoked Roe were not discussing what the Supreme Court said in 1973. Following the Court’s decision, supporters of abortion rightsworked to redefine it. Feminists framed Roe as a decision recognizing rights for women, rather than liberty for physicians and patients. Other activists cast Roe as a decision about autonomy. Outside the context of abortion, those who used Roe as a weapon referred not only to what the Supreme Court held but also to the reinterpretations of the decision that had gained currency in public debate. Activists at times gestured to concepts some already associated with Roe, like a right to choose or to control one’s own body, without mentioning the decision directly. These reinventions of Roe were part of the decision’s legacy.6
By studying these uses of Roe and arguments connected to it, we gain perspective on the rise and fall of strikingly different ideas about privacy. Activists used the right to privacy to demand protection and financial support from the government. Conservative as well as liberal groups invoked a right to choose in defending their causes. While advocates sometimes used Roe in advancing these contentions, the decision mostly played a part in a broader set of claims involving self-determination and personal liberty. With an understanding of these redefinitions of Roe and the privacy agenda to which they belonged, we can see how up for grabs the new political culture remained for most of the decade. Americans invoked the right to privacy in demanding respect for open same-sex relationships, protection from private acts of violence, and the financial support necessary to meaningfully exercise rights. Making Roe part of a larger set of privacy claims served the purposes of individuals promoting new ideas about who should have decision-making authority in the family and the doctor-patient relationship. Treating these uses of Roe as a starting point, we can see how unpredictable the conflict about the value and meaning of individualism remained for more than a decade.
This history also shines a light on contemporary dialogue about privacy arguments. As early as the 1970s, critics of the Roe decision believed that the Court made a grave mistake in relying on a right to privacy. Academics across the ideological spectrum argued that Roe had not explained where the right to privacy came from or what its limits were. Others believed that privileging a right to privacy made it harder to seek certain forms of social change. Feminists, among others, suggested that privacy arguments could never effectively disrupt existing hierarchies of race, sex, or class. Skeptics further claimed that a privacy right offered no foundation for much-needed demands for state assistance or protection.7
Other commentators believed it was too soon to discard Roe’s conception of liberty. Rehabilitating Roe as a decision involving autonomy, these scholars and judges concluded that some understandings of privacy could be valuable weapons.8
But current fights about whether—and how—privacy arguments can be effective have a longer history. Today’s debate represents just one point in a longer exchange about when and whether such rights deserve support. For some time, privacy claims brought to mind demands that have little to do with the narrow idea of freedom from government that is often dominant today. This history helps to explain why commentators take such different positions on whether privacy claims are worth the trouble. If privacy has meant so many things to different social movements, it should be no surprise that scholars and politicians disagree about what related arguments can accomplish.
Finally, this book contributes to appraisals of the Roe decision’s legacy in American law and politics. Commentators have predicted that abortion rights would have gained far more adherents if the Court had stayed away from a privacy framework altogether. But social movements used Roe in battles almost entirely disconnected from the war over reproductive rights. We can make better sense of this history when we recognize that movements mentioning Roe often went far beyond anything that the Supreme Court had said, treating the decision as an inspiration and source of raw material. Understanding what Roe has meant requires an awareness of the ways that activists used the decision to reshape other areas of American life.9

The Origins of a Legal Right to Privacy

Starting in the late nineteenth century, commentators suggested that American law protected a right to privacy. Writing in 1879, Thomas Cooley, a judge and expert on tort law, defended what he called a “right to be let alone.” Cooley imagined that privacy rights would serve as a new foundation for civil lawsuits. He defined privacy primarily as freedom from physical assaults or threats of violence. Cooley’s idea of privacy never entirely faded from view, but the right to privacy soon took on many more meanings.10
Not long after the publication of Cooley’s treatise on tort law, the right to be left alone caught on with a larger audience. In 1890, two young lawyers, Samuel Warren and Louis Brandeis, published an article in the Harvard Law Review arguing for new protections. Brandeis and Warren emphasized evolving cultural and technological threats to privacy. Their article decried a new fascination with gossip and an insatiable media demand for intimate details about celebrities’ lives. New devices, like the Kodak camera, made it easier for the media to snoop. Like Cooley, Brandeis and Warren proposed a tort that could defuse some of these threats, allowing for lawsuits when the press publicly disclosed private facts.11
At the time Brandeis and Warren published their pathbreaking article, others framed privacy as the right to control one’s public image. In the early twentieth century, the improvement of photographic technologies and the emergence of advertising as a major source of revenue led to an explosion in the use of individuals’ pictures. Courts initially resisted recognizing a common-law right to control one’s image, but the public seemed to support what the New York Times described as “the right of a decent woman to privacy, her right not to have her features used and hawked about as a trademark without her consent.”12
In 1905, Georgia became the first state to recognize a right to control one’s image. Paolo Pavesich sued when the New England Life Insurance Company used his image without his consent to sell life insurance. In vindicating Pavesich’s claim, the Supreme Court of Georgia framed privacy as an individual’s right to decide how and when he was seen by everyone else. “One who desires to live a life of partial seclusion has a right to choose the times, places, and manner in which and at which he will submit himself to the public gaze,” the court explained.13
By the mid-1950s, most states recognized tort law claims for both the appropriation of an individual’s image and the public disclosure of private facts. However, in the decades after Pavesich, new legal, political, and cultural trends made the threat of government snooping much more urgent. The years of alcohol prohibition from 1919 to 1933 revolutionized the surveillance arm of the federal, state, and local governments. With the expansion of the Federal Bureau of Investigation, the Border Patrol, and the state and federal prison system, government left a much bigger imprint on the daily lives of many Americans, particularly the poor, immigrants, and minorities who were disproportionately targeted by the war on alcohol.14
As more federal agents worked to enforce Prohibition, different surveillance techniques, including wiretapping, raised concern. In Olmstead v. United States (1928), the Supreme Court reviewed the conviction of several petitioners, including Roy Olmstead, a bootlegger who ran a lucrative operation extending from Seattle to British Columbia. Olmstead argued that the wiretaps used against him violated the Fourth Amendment: “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The Supreme Court held that the wiretapping operation that brought down Olmstead did not violate the Fourth Amendment of the Constitution even though investigators had failed to get prior judicial approval for it. Writing for the majority, Chief Justice William Taft concluded that the Fourth Amendment had not been violated because there had been no search at all. “The evidence was secured by the use of the sense of hearing and that only,” Taft reasoned. “There was no entry of the houses or offices of the defendants.”15
Joined by Oliver Wendell Holmes and two other members of the Court, Louis Brandeis invoked the right to privacy in a scathing dissent. The idea he articulated differed from the one that animated the tort lawsuits of earlier in the twentieth century. Those cases often turned on an individual’s desire to stay out of public lif...