All private records to be made public?

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The basis of Roe v Wade is the right of personal privacy.

However, if the legal right to personal privacy is overturned, then ALL private records, documents, etc are suddenly public because no one would have a “right to personal privacy”.

That includes tax records (at all levels), contracts, etc.

HIPAA? Gone–as HIPAA is specific to health records (which would include abortion, etc).

This will get INTERESTING–REALLY FAST !! And in so many different areas where “the right of personal privacy” is presumed to exist.

Regardless of how the decision is worded, the fight to restore Roe v Wade AND/OR to get access to ALL formerly private information just became a LOT MORE INTERESTING.

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The basis of Roe v Wade is the right of personal privacy. However, if the legal right to personal privacy is overturned, then ALL private records, documents, etc are suddenly public because no one would have a “right to personal privacy”.

You might want to consult a constitutional lawyer about that. Another interpretation would be that the right to personal privacy stands but doesn’t extend to cover this issue.

DB2

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The Bill of Rights says you are secure in your person, house, papers, and personal effects, unless a search warrant is issued.

I sure have no control over who uses my phone to call me tho.

Of course, the question comes up, who owns the records? Do you own your medical records, or does the company the Doc works for own them? Do you own your financial records, or does the bank?

iirc, a court decided some years ago that people have no “expectation of privacy” in any public setting, so it’s perfectly fine to monitor your activities outside of your home, without a warrant. (some years ago, I was watching an ep of “Inspector Lewis”, where Lewis somehow got involved in a case in Germany. Of course, his first move was ask to see what CCTV captured. The German policeman working with him said “this is Germany, we don’t have cameras everywhere”)

Steve

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Another interpretation would be that the right to personal privacy stands but doesn’t extend to cover this issue.

What is “this issue”? Without defining exactly what “this issue” is, there is only “personal privacy” as “this issue”.

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Another interpretation would be that the right to personal privacy stands but doesn’t extend to cover this issue.
—
What is “this issue”?

The constitutionality of a state limiting abortion.

DB2

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This thread has it right, this is an extreme dangerous across the board decision potentially upsetting rights across a wide spectrum.

Yeah, I sure want Jerry Falwells and Pat Robertsons invading my privacy. Pregant women are in the front line, but behind them stand all manner of tiny protected freedoms most people do not even realize they have and depend upon.

Glad I live in Mexico, and saying that on this issue shows how insane El Norte has become.

david fb

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bWhat is “this issue”? Without defining exactly what “this issue” is, there is only “personal privacy” as “this issue”.

“This issue” is abortion.

What you’re referring to, obliquely, is a doctrine that the Court adopted in Griswold v. Connecticut (the contraception case) as a way of harmonizing and/or extending many of its prior decisions construing various protections against government interference - the idea that the express provisions of the Bill of Rights create a ‘zone’ of freedom from state regulation, that they cast “penumbras”:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516—522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'

https://www.law.cornell.edu/supremecourt/text/381/479

So these ‘penumbras’ are zones of privacy created by several other fundamental (but expressly enumerated) rights. The right to contraception, the right to abortion, the right to engage in certain sexual acts…these were all based in the idea that the Founders intended to create a realm of private, intimate space protected from the state.

What you’re describing - private records and papers - don’t depend on any ‘penumbras’ or the zones of privacy within them. They fall squarely within one of the enumerated rights - the Fourth Amendment protection of such records - which casts those penumbras. So the ruling in Dobbs (assuming, arguendo, that the final decision looks like the draft) wouldn’t affect that at all. It doesn’t even necessarily have to affect the other ‘penumbral’ rights - the Court is perfectly capable of saying that abortion doesn’t fall within the protected zone of privacy but contraception still does. But affecting personal records and papers is not a consequence of the legal reasoning in this opinion.

Albaby

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But affecting personal records and papers is not a consequence of the legal reasoning in this opinion.

Actually, it is. Women are NOT secure in their “persons” if prohibition of abortion becomes law. It is an enumerated right per the Fourth Amendment–but that has been removed without the required Amendment.

Thus, if one privacy is lost, all are lost. The Fourth Amendment is no more.

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Actually, it is. Women are NOT secure in their “persons” if prohibition of abortion becomes law. It is an enumerated right per the Fourth Amendment–but that has been removed without the required Amendment.

Thus, if one privacy is lost, all are lost. The Fourth Amendment is no more.

That’s just not true. Roe wasn’t based on a legal claim that the Fourth Amendment covered abortion. It was based on the theory that the Fourteenth Amendment’s protection of “liberty” encompassed more rights than those established in the Bill of Rights - and abortion was one of the “more” rights that the Court found. Several other constitutional protections also are grounded in those “more” rights - the “penumbras” that Griswold described - but the rights that are enumerated in the Bill of Rights don’t depend on that theory at all.

Nothing in this opinion has anything to do with the protections of your personal records under the Fourth Amendment.

Albaby

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Alito’s draft opinion states “a right to abortion is not deeply rooted in the Nation’s history and traditions”, and “We have long recognized, however, that stare decisis is ‘not an inexorable command.’” Any Unenumerated Rights not “deeply rooted in the Nation’s history” might be revoked by Alito. Privacy was not mentioned by Justice McReynolds in Meyer v Nebraska (1923) and so could be revoked.

Carpenter v. United States (2018) was decided by a 5 to 4 vote. Government entities now need a search warrant to obtain cellphone location records. A similar ruling today might go against privacy rights.

Unenumerated Rights are not clearly stated in the constitution but instead are inferred. Some possible unenumerated rights: “innocent until proven guilty”, the right to travel, the right to privacy, the right to contract, the right to autonomy, the right to dignity, the right to marriage, the right to vote, the right to keep personal matters private, the right to make decisions about one’s health care or body.

SCOTUS rulings can have economic impact. The 1857 Dred Scott decision made the future of the western railroads uncertain and so may have triggered the Panic of 1857. The Fourteenth Amendment was passed in 1868, nullifying the Supreme Court’s Dred Scott decision.

There are many Supreme Court rulings that interpret what “liberty” means in the Fourteenth Amendment. In Meyer v Nebraska (1923), Justice McReynolds wrote: “While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

PBS NewsHour full episode, May 03, 2022
“So, settled law, to me, really means nothing”
https://youtu.be/oKNSjRoL8JE?t=813

US Constitution
Ninth amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Fourteenth Amendment Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Carpenter v. United States (2018) was decided by a 5 to 4 vote. Government entities now need a search warrant to obtain cellphone location records. A similar ruling today might go against privacy rights.

True. I should be more precise - nothing in the ruling can possibly be construed to altogether remove Fourth Amendment protections, and will not directly set any precedent for the scope of those protections. However, the more general language about the importance of stare decisis (or lack thereof) can have an effect on prior rulings on 4th A issues.

Albaby

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Alito’s draft opinion states “a right to abortion is not deeply rooted in the Nation’s history and traditions”,

He needs to define “deeply rooted”. If 49 years is not enough, how about 68 years? (when “under God” was added to the Pledge, in defiance of the establishment clause) How about 84 years (when the Federal minimum wage was established under the Fair Labor Standards Act)?

I have commented, for several years, that there is no language in the Constitution giving the Federal Government authority to intervene in the labor/management relationship. iirc, the authority to regulate interstate commerce was leveraged to give the government authority over the workings of a company when it’s goods cross state lines. If corporations can be people, then government intervention in the relationship between employees and their employer would violate the First Amendment right to assemble.

When will an aggrieved “JC” go crying to the court about what an “intrusive burden” it is to pay his employees a minimum wage, or pay OT wage, or pay them at all? He’ll plead “it’s an at will relationship. if they don’t like working for free, they can seek employment elsewhere”

Steve…cheated out of hours of pay, OT pay, and paid vacation, everywhere I worked. That’s why I don’t have a “20 years of service” award from a JC

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“deeply rooted” goes back to when the US Constitution or the amendment was written. Justice Alito is a “practical originalist”. Justice Barrett is a self-proclaimed originalist and has said “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Barrett thinks “liberty” in the 14th amendment is limited to what people thought in 1868.

State minimum wage laws might be ruled unconstitutional by the current US Supreme Court. This would be unpopular, but SCOTUS likes to think it is above public opinion. (Supreme lifetime appointments distort accountability. More harshly, absolute power corrupts absolutely.) Eliminating state minimum wage laws would create uncertainty in the US economy. What did the US economy look like in 1868?

Before 1937, the US Supreme Court often ruled against expanding labor rights (minimum wage, child labor laws, overtime rules), saying these laws were unconstitutional because they violated the right to contract. Then faced with the possibility of court packing, SCOTUS ruled 5-4 in West Coast Hotel v. Parrish (1937) that Washington State could impose minimum wage regulations on private employers without violating the Constitution’s Fourteenth Amendment.

In 2016, Justice Thomas wrote that West Coast Hotel Co. v. Parrish was wrong when it “created a new taxonomy of preferred rights”.

— links —
A key Supreme Court ruling protecting workers is now in jeopardy, March 30, 2022
The newly conservative court may target the decision that allows for a minimum wage
“In 2015, and again in 2016, however, in Whole Woman’s Health v. Hellerstedt, a decision striking down limits on access to abortion, Justice Clarence Thomas observed that he thought Roe v. Wade — which first articulated a right to abortion in the Constitution — and Parrish committed errors that are two sides of the same constitutional coin. In both, he argued, the justices substituted their own opinions for the text of the Constitution. Roe struck down a law and, in doing so, manufactured a constitutional right. Parrish upheld a law and, in doing so, violated the clearly constitutionally protected liberty of contract.”
https://www.washingtonpost.com/outlook/2022/03/30/key-suprem…

Whole Woman’s Health v. Hellerstedt (2106 Supreme Court ruling)
JUSTICE THOMAS, dissenting.
“It is tempting to identify the Court’s invention of a constitutional right to abortion in Roe v. Wade, 410 U. S. 113, as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See Lochner v. New York, 198 U. S. 45 (1905). The Court in 1937 repudiated Lochner’s foundations. See West Coast Hotel Co. v. Parrish, 300 U. S. 379, 386–387, 400 (1937). But the Court then created a new taxonomy of preferred rights.”
https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f…

Originalism, Amy Coney Barrett’s approach to the Constitution, explained, October 12, 2020
Originalism sells itself as a way of constraining judges. But it’s more often a way of unleashing them.
“Barrett is a self-proclaimed originalist, embracing a theory of the Constitution that is also shared by at least two other sitting justices: Justices Clarence Thomas and Neil Gorsuch. Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.””
https://www.vox.com/21497317/originalism-amy-coney-barrett-c…

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Alito is saying for moral reasons privacy rights are not applicable.

That opens the door to anyone’s morality taking away anyone else’s rights for anything based on privacy rights. These are enumerated rights.

Obviously these rights to do not include criminal acts. But the moralists get into labeling everything a crime.

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“deeply rooted” can also mean that there are no lawsuits filed. The Supreme Court can’t rule if there’s no dispute.

The Supreme Court chooses which cases it hears, and so can choose to avoid cases for “deeply rooted” issues. For example, SCOTUS is unlikely to invalidate paper money.

“Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education… Once a precedent is deeply rooted, challenges die out and the Court is no longer required to deal with the question of the precedent’s correctness. The rules of adjudication, moreover — including the Court’s practice of answering only the questions presented in the petition for certiorari — relieve the Court of any obligation to identify and correct any error that may lurk in a case.”
Amy C. Barrett, & John C. Nagle, Congressional Originalism, The University of Pennsylvania Journal of Constitutional Law (2016).
Available at: https://scholarship.law.upenn.edu/jcl/vol19/iss1/1
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl…

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State minimum wage laws might be ruled unconstitutional by the current US Supreme Court.

I would think overturning state labor laws would be a harder sell. The easy target is overturning the entire body of Federal labor law: minimum wage, 40 hour workweek, time and a half pay for OT, the right to form a union, while waving the flag of “state’s rights”, because there is no explicit language in the Constitution allowing the government to interfere with the labor/management relationship. One easy, open and shut, case, and many states would immediately fall in line. Currently, 20 states do not have a minimum wage above the Federal wage. 5 states have no minimum wage law, and 2 states have a minimum wage below the Federal minimum. 28 states have anti-union “right to work” laws.

Once the Federal laws are overturned, then state laws can be attacked to bring those states into conformity with the new ideal of a Dickensian workplace, but that argument would not be as clear as overturning Federal labor law, because the 10th amendment allocates power to the states that the Constitution does not assign to the Federal government.

Steve

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Once the Federal laws are overturned, then state laws can be attacked to bring those states into conformity with the new ideal of a Dickensian workplace, but that argument would not be as clear as overturning Federal labor law, because the 10th amendment allocates power to the states that the Constitution does not assign to the Federal government.

I think you’re right that federal regulations are more likely to go than state ones, but not really because of the 10th Amendment.

Back in the Lochner era, the Court would strike down both federal and state efforts to regulate economic transactions - but under different theories. With the feds, they would narrowly construe the Commerce Clause to hold that what the federal government was doing exceeded the enumerated powers granted to Congress. But for state regulation, the Lochner Court held that the 14th Amendment’s protection of “liberty” included a robust freedom of contract, so that state’s could not curtail the rights of individuals to enter into whatever contracts (and under whatever conditions) they chose.

The current Court is probably more hostile to the expansive Commerce Clause jurisprudence than it is receptive to a renewed “freedom of contract” under the 14th.

Albaby

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… the Lochner Court held that the 14th Amendment’s protection of “liberty” included a robust freedom of contract, so that state’s could not curtail the rights of individuals to enter into whatever contracts (and under whatever conditions) they chose.

That is a pretty aggressive reading of “liberty”, “liberty to abuse and exploit your fellow man for personal profit” at least as aggressive as the presumption of privacy covering abortion. Lochner was decided in 1905. The Fair Labor Standards Act was passed in 1938.

The Fair Labor Standards Act of 1938 29 U.S.C. § 203[1] (FLSA) is a United States labor law that creates the right to a minimum wage, and “time-and-a-half” overtime pay when people work over forty hours a week.[2][3] It also prohibits employment of minors in “oppressive child labor”.[4] It applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce,[5] unless the employer can claim an exemption from coverage. The Act was enacted by the 75th Congress and signed into law by President Franklin D. Roosevelt in 1938.

https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_19…

The act has stood for 84 years. Is that enough precedent to make it secure? Of course not, because, in Shinyland, there is no such thing as “settled law”.

Steve

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That is a pretty aggressive reading of “liberty”, “liberty to abuse and exploit your fellow man for personal profit” at least as aggressive as the presumption of privacy covering abortion.

Indeed, which is why I think the Court is unlikely to resuscitate Lochner. But I think it’s less an aggressive reading of liberty and more of a denial that anyone can “abuse and exploit” anyone else through a private, voluntary, bilateral contract between competent adults. From the case:

The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.

https://supreme.justia.com/cases/federal/us/198/45/

In more modern terms, they were almost finding that there’s no rational basis for the law - limiting the hours that can be worked as a baker doesn’t accomplish anything (in that Court’s eyes) that’s a legitimate state interest.

Albaby

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more of a denial that anyone can “abuse and exploit” anyone else through a private, voluntary, bilateral contract between competent adults.

That’s the crux of the issue, isn’t it. If we were dealing with two competent adults, I’d agree with the court. But much of labor law is addressed at large powerful corporations. Perhaps more broadly, powerful businesses. That business can make unreasonable demands of their employees, and individual employees have only the choice to take the job or quit.

There can easily be a huge power disparity between employer and employee. And the power almost never falls in the side of the employee.

Hence, labor laws and labor unions, both of which attempt to equalize the power between the two parties to an employment contract.

—Peter

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