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Privacy, the Courts, and the Culture of Death | An Interview with Dr. Janet E. Smith, author of The Right to Privacy | Ignatius Insight | March 5, 2009

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Ignatius Insight: What is the "right to privacy" and what are its legal origins? What are its philosophical and moral roots?

Janet E. Smith: The "right to privacy" when originally formulated referred to the right to have such things as one's journal or conversations kept private.

The basis of this right is that we are "ends in ourselves": we do not exist to be used by anyone. We are free by our very natures and free to "determine" or craft ourselves, rather than being used by others. The legitimate right to privacy is the right not to have things that are rightfully private made public. No one should record our conversations and make them public without our permission, or use pictures of us to sell products, for instance, or sell our diaries.

Philosophers speak of the "turn inward" that happened with such philosophers as Descartes. The world that was most real to them was the subjective world, the thoughts in their heads, rather than exterior reality. Their interior judgment became the standard of truth rather than objective reality. A later philosopher, David Hume, declared that we could not trust our senses as a source of truth. With no exterior standard to adjudicate which judgments are true, people started claiming that all opinions are equal.

Subjectivism, skepticism, and relativism became the reigning philosophical positions. If there is no objective reality that must be the guide for our actions, we should be free to do whatever we think best. We cannot let others dictate to us (this would be heteronomy); we should all live only by the laws we lay down for ourselves – this is autonomy. The right to privacy was built on those "isms" and on a view that we all have a right to radical autonomy.

Ignatius Insight: If Roe v. Wade was the poster child (no pun intended) for the "right to privacy," what was Griswold v. Connecticut? Why was that 1965 decision so significant?

Janet E. Smith: I suppose Griswold v. Connecticut was its grand debut. In that decision the courts attempted to find some basis on which they could overturn laws against the sale, distribution and use of contraception. For nearly a century many states and the federal government had had laws against contraception. Planned Parenthood assiduously challenged those laws but they were repeatedly affirmed by legislatures and courts.

In 1965, in Griswold v. Connecticut, the Supreme Court found constitutional protection for the sale, distribution and use of contraceptives—by married couples. As is well known, there is no "right to privacy" in the constitution nor were the justices clear on which amendment implied a "right to privacy" that would guarantee access to contraception. A short two years later the court expanded that right to the use of contraceptives by the unmarried. In 1973, the court found that the right to privacy extended to the right to have an abortion. There, too, laws of all fifty states were overturned by the votes of a few justices.

The right to privacy has become a very elastic right; it has been used to legalize contraception, abortion, assisted suicide and homosexual acts. Virtually no one can give a coherent explanation of what this right is and what it legitimately protects. It has become a wild card that permits the courts to advance a very liberal not to say libertine agenda, often overriding the decisions of state legislatures and courts.

Ignatius Insight: How is the "right to privacy" being used to advance assisted suicide/euthanasia? How is it connected to contraception and abortion?

Janet E. Smith: In Griswold, the bedroom was deemed a private place in which acts previously considered illegal could be done; in Roe, the womb was deemed a private place in which a baby's life was no longer protected. The cases attempting to legalize assisted suicide use the contraception and abortion cases as precedent.

There are all sorts of convoluted connections but an underlying logic seems to be that if a woman has a right to kill the baby within her when that baby is inconvenient to her, surely we should all have the right to kill ourselves when we become inconvenient to ourselves or others.

Also, if we say that everyone should have the liberty to define the meaning of life—and this seems to stretch from defining when life begins to what life is worth living—how can we have laws that say that people need to stay alive longer than they want to?

Ignatius Insight: What has been the role of misused and manipulated language—for example, using terms such as "pro-choice" and "death with dignity"—in helping de-stigmatize and promote abortion and euthanasia within the culture at large?

Janet E. Smith: Monsignor William Smith used to say that verbal engineering always precedes social engineering; or it might be said that a verbal revolution precedes a social revolution. Or it may be said that evil people attempt to make evil seem good by dressing it up in pretty words. And that some good people become seduced by that pretty language into doing some very bad things or permitting and tolerating very bad things. Those who are "pro-death" have cleverly disguised their position as being "pro-choice" and those who are pro killing human beings who they deem as worthless as vegetables disguise their position as pro "death with dignity." In the same way the "right to privacy" has come to mean that each of us should be allowed to do whatever we want whenever we want. It is autonomy gone wild.

Ignatius Insight: How can Christians and other people of good will fight against the culture of death and work to build a culture of life?

Janet E. Smith: Well, there are lots of ways in many realms—prayer, education, providing services for unwed mothers, abstinence education, electing pro-life officials. I support all these efforts.

Since I am an educator, I work largely in the area of trying to help people understand the ideas that lie behind the issues and to show that the ideas and arguments that govern the prolife movement are true and good whereas the ideas that govern the culture of death are vicious and the arguments are bad.

My book was designed to show that the use of the right to privacy by the United States courts demonstrate the truth of John Paul II's explanations for the roots of the culture of death that he gave in Evangelium Vitae. With him, I believe those who understand the deeper justifications that underline the culture of death, who can see the connections between contraception, abortion, assisted suicide and homosexual unions will be better able to fight the culture of death. They will be able to persuade others of the muddled thinking if not serious evils that lurk behind attractive slogans such as the "right to privacy".

Much evil in this world is the result of immoral people not caring about the truth; prayer, fasting and punishment are usually the best ways to convert them. But there are also a lot of people in this world who are passionate about doing what is right but because they cannot reason well or have not thought deeply and wisely about matters, they end up doing a great deal of harm. I hope my book introduces them to the thought of John Paul II who can help them think straight and become advocates of the culture of life.

The Right to Privacy

by Dr. Janet E. Smith | Foreword by Robert Bork

Janet E. Smith, well-known philosophy professor and writer, presents a critical look at the meaning of the "right to privacy" that has been so often employed by the Supreme Court in recent times to justify the creation of rights not found in the Constitution by any traditional method of interpreting a legal document.

Smith shows how these inventions have led to the legal protection of abortion, assisted suicide, homosexual acts, and more. As Judge Bork says it shows that "morals legislation now seems constitutionally impermissible", and that the counterfeit right to privacy belongs to the genre of the indecipherable and incoherent that no one who wrote the Constitution and the Bill of Rights would have contemplated.

Related IgnatiusInsight.com Articles and Book Excerpts:

The Challenge of Marriage Preparation | Dr. Janet E. Smith
Biblical Aspects of the Theme of Faith and Politics | Joseph Cardinal Ratzinger
What Is "Legal"? On Abortion, Democracy, and Catholic Politicians | Fr. James V. Schall, S.J.
The Case Against Abortion | An Interview with Dr. Francis Beckwith
The Illusion of Freedom Separated from Moral Virtue | Raymond L. Dennehy
What Is Catholic Social Teaching? | Mark Brumley
Introduction to Three Approaches to Abortion | Peter Kreeft
Dei Verbum and Christian Morals | Fr. Benedict Ashley, O.P.
Some Atrocities are Worse than Others | Mary Beth Bonacci
Personally Opposed--To What? | Dr. James Hitchcock
Deadly Architects | An Interview with Donald De Marco and Benjamin Wiker

Dr. Janet E. Smith is the Fr. Michael J. McGivney Chair of Life Issues at Sacred Heart Major Seminary in Detroit. She is the author of Humanae Vitae: A Generation Later and editor of Why Humanae Vitae Was Right: A Reader and many articles on ethical and bioethics issues. Over 700,000 copies of her tape, "Contraception: Why Not?" have been distributed. She taught for nine years at the University of Notre Dame and twelve years at the University of Dallas. She speaks nationally and internationally on several issues, especially the Catholic Church's teaching on sexuality. She is serving a second term as a consultor to the Pontifical Council on the Family.

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