ABORTION FROM THE FOURTH AMENDMENT
The human right to privacy is natural. It is a basic and inalienable constitutional right that belongs to a person from his/her birth. The right to privacy is one of the international standards in the field of human rights. Psychological aspect and individuality are its distinctive features. Each person subjectively determines what relates to his or her private life. The objects that the law protects are the dignity of a person, his/her thoughts, feelings, and inner world. Thus, the private life is a physical and spiritual sphere, which a person controls on his/her own, and it is free from external influence. A person is involved into the following life spheres: the family, household, communication, attitude to religion, off-duty employment, hobbies. There are also other sectors of relations, which people do not want to publicize if the law does not require it. The Fourth Amendment to the US Constitution legally codifies non-interference in privacy. This amendment extends to all spheres of a person’s private life including health and, in particular, the right of a pregnant woman to make a decision on the continuation or termination of pregnancy.
The traditional approach to the interpretation of the Fourth Amendment was improved during the consideration of the case of Katz v. the United States. Earlier, to determine the concept of “search,” the US Supreme Court resorted to such expression as physical invasion of a certain “constitutionally protected area” of human life. In 1928, the Supreme Court ruled that the wiretapping, which resulted in the recording of incriminating conversations used as evidence of the charge, was not a search because the telephone conversation was not a physical object, and there was no physical penetration into any constitutionally protected sphere of human life.
In the decision adopted in 1967, the Supreme Court abandoned its former external-oriented approach. It ruled that the act of installing an electronic eavesdropper outside the public telephone booth for recording the telephone conversations of the accused formed a search that the Fourth Amendment warranted. The court had decided that the purpose of this amendment was to protect people, not premises. The Constitution must protect everything that people want to hide from others as a part of their purely private life regardless of whether it concerns a public place or the physical penetration of person’s property. Vice versa, everything that people knowingly do not hide lies outside the area that the Fourth Amendment defends. Katz reasonably assumed that his telephone conversations were a purely private matter, and their interception was a search; thus, the police had to obtain a warrant for a search first. According to the established rules, in this case, when law enforcement officers violate the “reasonable expectation of the privacy of a person,” a search, which subjects to the guarantees of the Fourth Amendment, is performed.
The Fourth Amendment concerns not only confidential conversations or correspondence but also the information about human health. In the case of Whalen v. Roe, the question of the constitutionality of keeping prescriptions that the doctors gave to their patients was settled. The plaintiff claimed that the storage of these pieces of information was a violation of the right to inviolability in private life in the part of patient’s state of health. The defendant connected this action with the need to control narcotic substances. The demands of the plaintiff were rejected. This case showed that the legal force of the Fourth Amendment was not boundless; thus, there may be exceptions from the general rule.
The next case concerned the collection of genetic material from people suspected of committing serious offenses. The case of Maryland v. King established that the collection of genetic material (DNA), photographing, and fingerprinting did not violate the Fourth Amendment. However, the police should have serious grounds to suspect an individual of committing a crime. This case further strengthened the position, according to which the inviolability of a person might be disrupted in case there were serious grounds for doing it.
The Fourth Amendment can also be used for protecting a person from the unreasonable study of his/her health status. In the case of Ferguson v. City of Charleston, pregnant women were examined for drug use. The court ruled that without patient’s consent, this medical examination equated to a search without a relevant document and could not be considered legal. Thus, the sphere of the Fourth Amendment influence has expanded on the protection of human health and information about its condition.
Modern times propose new tests for the interpretation and application of the Fourth Amendment. With the advent of the computer era, the importance of protecting the right to privacy in the information sphere has immeasurably increased. The development of new technologies significantly complicates the process of the correct interpretation of the Fourth Amendment. As Lipman notes, “It states that the people have a right to be secure in ‘their persons, houses, papers, and effects.’ This list covered virtually everything a person had in colonial times: himself, his house, his papers, and all of his possessions” (42). On the one hand, in the conditions of the modern development of civilization and the widespread introduction of information technologies, people’s access to information becomes easier. It contributes to the exercise of the individual’s right to freedom of information. On the other hand, the access of people to the databases of personal information increases the risk of intrusion into the sphere of private life and the violation of the right to its inviolability. Thus, under the circumstance of ubiquitous implementation of new technologies, the legislation should strive to adjust and clarify the legal effect of the Fourth Amendment
Today, the innovations in the medical sphere constantly appear. They cause the new precedents related to the protection of the patients’ right to saving personal information. However, even in these changing conditions, the right to privacy should be realized and protected especially in the medical field. The reason for it is that everyone has the right to respect for his or her private life. It concerns the information about person’s health as well. One should also apply this provision to the right of a pregnant woman to conceal the information about her pregnancy and realize the opportunity to have an abortion. Greene states that “Framed in privacy terms, the abortion right seems not to outweigh the state’s interest but to reject it altogether: asserting a constitutional right to privacy is precisely a declaration that the state may not legitimately be interested” (724). Thus, the right of a woman to abortion arises directly from her right to privacy. In other words, from the point of the right to inviolability, a woman has the right to keep her pregnancy in secret, freely choose the interruption or retention of pregnancy, and conceal private information about her choice from others. Thus, the Fourth Amendment remains a universal guarantor of private immunity and protection of personal information in time of rapid changes.
The problem of abortion is too complex to be considered from only one point of view. In addition to analyzing the right to privacy, it is important to pay attention to medical evidence, social norms, and the right to life in terms of religion, morality, and philosophy. The problem of artificial termination of pregnancy lies in resolving moral, ethical, legal, social, and religious issues related to the medical practice of abortion. These aspects are closely interrelated with each other but, at the same time, in a number of cases, they provoke conflict. The thing, which is admissible from the legal, scientific, and/or medical point of view, is unacceptable from the moral perspective and vice versa. Certainly, as a guarantee of non-invasion of privacy, the Fourth Amendment can be understood as the woman’s right to have an abortion. However, when investigating this problem, one needs to analyze the whole complex of factors.
Greene, Jamal. “The So-Called Right to Privacy”. University of California, Davis,
vol. 43, no.715, 2010, pp. 717-746
Lipman, Rebecca E. “Protecting Privacy with Fourth Amendment Use Restrictions.” George
Mason Law Review, Forthcoming, 2017, pp. 1-54, https://ssrn.com/abstract=2949293