Two recent news items share a common theme: Privacy rights are under attack.
Though each item offers a "good" reason for the chipping away of privacies — such as the confidentiality of medical records — the cases are so legally tangled that analysis becomes blurred and "bad law" based on judicial activism becomes more possible.
News Item One: Last Tuesday, an Indiana judge ruled that Planned Parenthood must disclose to the state its medical records of patients under 14. The reason for searching en masse through the records of 40 Planned Parenthood affiliates — a process referred to as "a fishing expedition" — would be to verify that the clinics are properly reporting cases of child abuse. (A pregnancy, abortion or sexually transmitted disease in a minor under 14 could be evidence of sexual abuse or rape.)
Since the clinics receive Medicaid reimbursement — that is, tax funding — the state has far more of a presumptive "right" to the information than it would have with a private clinic. Nevertheless, any ruling may well set a precedent for private clinics.
News Item Two: A civilian rape counselor in Colorado may be imprisoned for refusing to provide a military court with records of her sessions with a former Air Force Academy cadet. The ex-cadet is among approximately 150 women whose rape allegations caused Academy leaders to exit in disgrace.
She has asked a district court to block her unprecedented arrest by the military.
The reason for her threatened imprisonment? One of the accused argues that his right to a fair trial overrides the accuser's right to medical privacy. One of the complications is that the case now spans two worlds of "justice" — civilian and military — each of which operates along different rules.
Similarly complex cases are occurring across North America.
Some rulings uphold privacy rights. For example, on March 28, the Colorado Supreme Court ruled against the claim that a victim's records at a domestic violence shelter are confidential only for information she imparts but not for information or service she receives. The court ruled that the entire record is confidential.
But, overall, a principle of personal freedom is being chipped away: privacy.
Privacy rests on the assumption that — in the absence of specific evidence of wrongdoing — an individual has a right to shut his or her front door and tell other people (including the government) to mind their own business. This is a presumption of innocence.
Privacy also assumes an important division between the personal and public spheres, a division that is reflected in constitutional protections against unreasonable search and seizure. Historically, privacy has stood as a bulwark between individual rights and social control.
Privacy comes into question whenever someone enters certain areas of the public sphere: for example, through filing a criminal charge such as rape. Even then, however, the legal system has evolved traditions to insure that privacy is not excessively violated. These traditions include spousal privilege, a prohibition against "fishing expeditions," and the confidentiality of confessionals and medical records.
These evolved protections are under concerted attack. In general, the attacks are occurring in "gray" areas; new law and precedent is being introduced through complicated cases where it is possible to take contradictory positions depending on the aspect of the case and the law you are examining.
It is interesting to ask why these attacks are happening with such frequency now. I believe the timing comes from the convergence of three factors.
First, judicial decisions have become a form of de facto law. The legal status of explosive issues, from abortion to gay marriage, is being decided by hundreds of courts at multiple levels as much as by legislatures. Activist judges, political advocates and lawyers are redefining not only broad principles of law — e.g. constitutionality — but also the minutiae of law's application. The court system has become a popular vehicle for sweeping social change instead of its more traditional role as a forum to evaluate the restitution or other specific justice of individual cases. Privacy is one of the many battlegrounds of judicial activism.
Second, privacy has fallen into disrepute since Sept. 11. None of the cases cited above involve homeland security. Nevertheless, all privacy rights suffer from a general sense of anxiety that makes people eager to "trade rights for security." If someone refuses to provide personal information, such as medical records, the question immediately arises, "What do they have to hide?"
Standing on privacy has gone from being the exercise of a right to being an indication of guilt.
Third, society may have reached a "tipping point" on a broad range of issues. A tipping point occurs when critical mass results from many small changes that may have occurred over a long period. Public opinion on how our society should approach issues like abortion, rape and domestic violence appears to have reached critical mass — the point at which change becomes inevitable. And these issues involve privacy.
On issues like rape, the backlash is heightened by a growing sense among some critics that false accusations have become commonplace and that some women have abused the system and hidden behind privacy to do so. Men's rights advocates argue that this reflects a pro-woman bias in courts. For example, courts routinely name an accused rapist while shielding the accuser. And, in criminal procedures, anonymity encourages abuse.
Such imbalances should be corrected but in manner that equally protects, not equally violates, the privacy rights of men and women.
The social factors converging against privacy rights — and especially medical privacy — are powerful and persistent. They ride on the emotional fuel provided by volatile issues like abortion and rape.
But there is a saying about babies and bathwater. Those who push to strip away the traditional protections of privacy may be trashing a prerequisite of personal freedom. And, without freedom, there is no security for individuals … either in court or in society.
Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.