A linguistic subject of privacy
The fictions of constitutional privacy—figuring sacred enclosures and autonomous selves—have obscured how privacy doctrine implicates a subject embedded in language. Although the Supreme Court’s privacy' jurisprudence acknowledges self-definition as a liberty interest, it fails to recognize the constitutive role of language in identity formation or how a subject is defined not only by its acts but by the meaning that attaches to those acts. Privacy doctrine lacks what Susan Williams has called a “narrative model of autonomy,” which construes autonomy “not as an act of volition, but as an act of interpretation and narration.”43
Although commentators have noted privacy doctrine’s conceptual relation to the rights of free expression and association, such observations focus on the significance of association to self-definition and the expressive power of lifedefining acts—not the linguistic constitution of privacy’s subject.44 Jed Rubenfeld, who interprets privacy doctrine as embodying an anti-totalitarian principle, has intimated such an understanding. He argues that privacy confers a right to “author” one’s own life, not to be instrumentalized by the state.45 “By the right to be let alone ... we should understand just this: a right not to have the law script or conscript our lives.”46
I would take more literally than does Rubenfeld the self-authoring that constitutional privacy enables. Subjectivity, as consciousness of self, takes shape in the discourse in which the “I” is enunciated, addressing a “you” that is other.47 The subject continually constructs and reconstructs itself through language, at the intersection of multiple discursive practices. Any account of oneself, even to oneself, is already overdetermined by publicly circulated conceptual frameworks, narratives, and images—the available structures of meaning. At the same time, authorship is agency. While an act of self-authorship is inevitably constrained, inherited paradigms are revisable, open to contestation, and vulnerable to subversion. Autonomy as discursive self-authorship thus coexists with social construction. Attention to self-authoring, rather than the prerogatives of an inviolate subject, shifts attention to autonomy as dialogic process, to the ways law first produces, then regulates the subject.48
The Grinvoid opinion broached privacy’s linguistic dimension, but failed to confront it directly.49 Justice Douglas initially addressed the constitutional foundation of a privacy right by citing Meyer v. Nebraska,*0 which held unconstitutional a statute forbidding foreign language instruction before the ninth grade, and Pierce v. Society of Sisters, which struck down an Oregon law requiring children to attend public (rather than private) schools through the eighth grade. Commentators often cite these cases as establishing a private realm of family life and child-rearing, off limits to state regulation,52 but Justice Douglas offered them as exemplars of First Amendment rights “to educate one’s children as one chooses,” “to study the German language in a private school,” to inquire, to think, and to teach.53 In fact, Meyer and Pierce were not decided under the First Amendment, but on substantive due process grounds;54 the First Amendment had not been applied to the states at the time they were decided55 and nowhere in the opinions is it mentioned. If Douglas sought to confirm a privacy right legitimately embraced by the Constitution, why resurrect these two Lochner-ctA cases at all?
What apparently interested Douglas about Meyer and Pierce was that the cases protect a subject’s right to choice and agency in critical linguistic encounters that shape identity. In Meyer, the state had required children to study English ‘“until it had become a part of them’”56 and the Court thus interrogated the extent to which the state might “foster a homogeneous people” by limiting children’s linguistic capacities.57 Similarly, in Pierce the Court rejected “any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”58 Griswold thus recognized, as established doctrine, a right to participate in crucial processes of idea and identity formation free from coercive socialization—especially linguistic colonization. The Court nevertheless failed to address the informational aspect of the Connecticut statutes—that is, the bar on counseling erected by the accessory statute. But in characterizing the privacy right as emanating from the First Amendment, the Court sketched a framework for conceiving of the subject of privacy as linguistic.
In subsequent cases, however, such a conception has not emerged. In the abortion cases, in particular, judicial analysis of the linguistic dimension of the privacy right is strikingly inadequate. Although Eisenstadt v. Baird dislodged the marital home and couple from the center of privacy doctrine by extending contraceptive rights to unmarried individuals,59 a conception of privacy as sheltering a privileged site and relation still exerted a powerful, if repressed, force in Roe v. Wade, decided a year later.60 The opinion stoutly declared that “this right of privacy ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,”61 characterizing the right at issue as a woman’s decisional autonomy. Later in the opinion, however, the Court seemingly conferred decisional authority on a woman’s doctor, not the woman herself. Prior to the points when the state’s interests in maternal health and fetal life become “compelling,” the Court held, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”62 Until then, “basic responsibility for [the abortion decision] must rest with the physician.”63 This incongruity at the very core of the decision marks a return of Griswold's spatialized privacy paradigm. The doctor’s office replaces the marital bedroom as the inviolable space; masculinized medical authority stands in for patriarchal domestic rule. As in Griswold, a culturally sanctioned narrative of spatialized and entity privacy rhetorically mutes the transformative potential of the decision for women’s self-determination.
Even as it fashioned the abortion decision as a doctor-patient consultation, however, the Court failed to analyze the dynamics of that dialogue. A deep irony of the Roe decision. Nelson points out, is that the privacy right it announced could only be effected by the pregnant woman’s rhetorical disclosure to a powerful other—a “forced confession.”64 To achieve a favorable medical judgment, a woman must author herself in a manner cognizable by and acceptable to the physician. So understood, the Roe doctrine disabled the very autonomy it purported to protect. As Foucault has elaborated, in confession one “authenticates” oneself by the “discourse of truth” one is able or obliged to produce about oneself.6'1 The subject revealed through such revelatory' discourse is simultaneously produced by the other—the interlocutor or institutional structure—within a dynamic of power and subjection.
The Court’s failure to interrogate the doctor-patient exchange that it mandated has contributed in no small measure to contemporary' abortion controversies as states have sought to regulate the field by' “informed consent” provisions—statutes mandating specific information physicians or clinics must provide to a woman before terminating a pregnancy. In the first decades after Roe, the Supreme Court struck down provisions it regarded as attempting to persuade women to abandon the procedure. In City of Akron v. Akron Center for Reproductive Health, Inc., for instance, the Court held that requiring physicians to inform their patients that ‘“the unborn child is a human life from the moment of conception’” was “inconsistent with the Court’s holding in Roe v. Wade that a State may' not adopt one theory’ of when life begins to justify' its regulation of abortions.”66 In effect, Akron held, the state could not regulate the meaning of a woman’s decision.
In Planned Parenthood of Southeastern Pennsylvania v. Casey,67 the Court famously' reversed course. At the outset, the plurality' opinion offered a full-throated endorsement of self-authoring as a constitutionally' protected liberty':
At the heart of liberty' is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery' of human life. Beliefs about these matters could not define the attributes of personhood were they' formed under compulsion of the State.68
The decision acknowledged that a woman could not legally' be bound to a “dominant” vision of her proper role; her “destiny” must be shaped by' “her own conception of her spiritual imperatives and her place in society.”69 In such passages, Casey appears to echo and magnify Griswold’s hints that privacy embraces the self-authoring of identity and meaning.
But the decision failed to fulfill this promise. The plurality' did reject a fictive bounded autonomy: “What is at stake is the women’s right to make the ultimate decision, not a right to be insulated from all others in doing so.”70 Yet it neglected the woman’s own status as a linguistic subject and instead asserted the state’s expressive interests: “Regulations which do no more than create a structural mechanism by which the State ... may’ express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.”71 To assess whether regulations infringe a right to abortion, the plurality developed an “undue burden” test that, in the context of informed consent provisions, requires primarily that the information given be “truthful and not misleading.”72 On its face, this holding supports the autonomy' interests served by common law requirements for medical informed consent, which seek to ensure that patients make fully informed decisions.73 Yet under Casey, even measures expressly designed to “persuade” a woman to elect childbirth over abortion may pass constitutional muster.74 Restricting the woman’s right to “the ultimate decision,” while authorizing the full might of the state’s normalizing power, the Court adopted a narrow model of autonomy as a singular volitional act, failing to consider whether, in the context of a physician’s office, the distinction between linguistic persuasion and coercion might be blurred.
The Casey Court’s cramped focus on “the ultimate decision” contrasts with “a narrative model of autonomy,” which locates autonomy not in the volitional act—the decision itself—but in the public and private narrativization of that act.75 In a narrative model, “the meaning of autonomy is that one’s identity and life are not ‘the object or medium of someone else’s speech, [but rather J the subject of one’s own.’”76 Autonomy arises from using a symbolic system—usually language—to create meaning. Such a model acknowledges not only the constitutive role of discourse in shaping meaning and identity, but also the need for self-authorship. From this perspective, self-governance requires protection of deliberative processes, which in turn requires keen attention to the linguistic— just as deliberative democracy depends on the protections of the First Amendment.77 A narrative model recognizes that autonomy takes shape in the reasoning and narration that produce a decision, not merely in the decision reached. To protect autonomy, constitutional liberty must protect the preconditions that enable its exercise—self-authoring, narration, and deliberation.
A narrative model of autonomy reveals that certain contemporary’ “informed consent” abortion regulations violate the concept of liberty putatively' endorsed by' Casey because they foist on women the state’s narration of the meaning of the procedure, wresting from them the power of self-authoring. For example, four states require that women seeking abortions be informed that the procedure “will terminate the life of a whole, separate, unique, living human being.”78 In South Dakota, a woman must also be advised that she “has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota,” and “[tjhat by' having an abortion, her existing relationship and her existing constitutional rights with regard to that relationship will be terminated.”79
The impact of such provisions on women’s autonomy' has largely been eclipsed by claims that the requirements compel ideological speech by physicians, violating the physicians’ First Amendment rights. For example, the Eighth Circuit upheld the South Dakota advisory that abortion terminates the life of a “human being,” rejecting claims that it would unduly burden women’s abortion rights.80 But in doing so, the court relied upon an earlier en banc decision (vacating a preliminary' injunction against the statute) that addressed only' physicians’ First Amendment rights, not the rights of the pregnant woman.81 The en banc decision concluded that, in light of the statutory' definition of “human being” as a “member of the species of Homo sapiens” from fertilization onward,82 a physician could readily grasp the biological sense of the advisor}'.83 But even if a physician were to include the species-based definition of “human being” when advising patients, as the court suggested, that would not erase the connotations provoked by describing the human being as “whole, separate, unique,” suggesting that it is “a member of the community of human persons whose life possesses dignity and warrants respect.”84 This second meaning of “human being” gains force through the advisory that the woman “has an existing relationship with that unborn human being.”85 Although Casey permits regulator}' mechanisms that express the state’s “respect for the life of the unborn,”86 South Dakota presents its position as objective fact, alongside such verifiable information as “statistically significant medical risks” of abortion and childbirth.87 The advisories perform what Jerome Bruner calls “the narrative construction of reality,”88 an imposition of design, intention, and, most importantly, meaning on raw data. Directing the pregnant woman’s decision-making, the advisories deny the deliberative independence necessary for autonomy.
Moreover, women must acknowledge, even tacitly accept, the state’s proffered meaning as a precondition to the procedure. As Judge Murphy pointed out, in dissenting from the Eighth Circuit’s en banc opinion, requirements that the physician certify in writing that she or he believes that the woman “understands the information imparted” and that a woman’s questions and comments be entered into a permanent medical record “are mechanisms likely to compel a woman to conform her speech to the state’s chosen message.”89 A statutory mandate that the woman herself confirm in writing that she “understands” the advisories90 likewise requires her to inscribe herself into the state’s stigmatizing narrative.
Efforts to deny women’s own scripting of their abortion choices can also be seen in ultrasound regulations. Seven states currently mandate ultrasound imaging for women seeking abortions,91 and four more require that women both view the image and receive a verbal description of it.92 Although the Fifth Circuit described fetal sonograms as “the purest conceivable expression of ‘factual information,’”93 the potency of the images results less from the visual information they convey than from the multiple narratives in which they are embedded. To the untrained eye, fetal sonograms (particularly in pregnancy’s earliest stages) typically present as a greyish blur.94 More than the image itself, the sonographer’s interpretation may transform the woman’s understanding of the potential life within her. Rather than supply a woman with “truthful” information, mandator}’ ultrasound procedures compel a woman’s body to confess a purported “truth,” read to her from an authoritative site both within and outside her. Contrast this with the common law regime that governed abortion in the nineteenth century, which permitted the procedure prior to quickening, when a pregnant woman first feels fetal movement.9'’ The common law’s implicit definition of fetal life worthy of protection relied on a woman’s subjective relation to the fetus developing within her. A sonogram operates as a “technological quickening,” as Carol Sanger has put it,96 supplanting a woman’s experience of pregnancy with a scientific, purportedly objective narrative of fetal development. The image magnifies and frames the fetus as a “free-floating independent entity,”97 providing visual (but biologically Active) confirmation that, as the South Dakota and other advisories proclaim, the fetus is a “separate” and “whole” human being.
At the same time, a mandatory ultrasound attempts to capture women within what has become a cultural rite of desired pregnancy: the first picture of the life within, to be shared with family and friends.98 Whether she confronts or refuses to look at the image, the woman choosing abortion must pointedly reject a celebrated life script. But the sonogram offers only a partial narrative— a single frame divorced from the events leading up to the pregnancy (which may include rape, incest, an abusive marriage) and those that may ensue if the pregnancy is carried to full term, including the social and material conditions of motherhood. Again, privileging the sonogram abstracts the reality of a pregnancy away from a woman-authored narrative.
While any decision to terminate a pregnancy will necessarily occur in the context of multiple, competing discourses—religious, medical, personal, and ethical—regulations compelling a woman to submit to an ultrasound show-and -tell or to attest that she understands a fetus to be a “separate” human capture the woman within master narratives as a precondition for the exercise of her constitutional right. Such coercive narrativization of intimate acts betrays Casey's promise of liberty as “the right to define one’s own concept of existence, of meaning.”99 The self-defining power of intimate acts flows no less from their cultural and personal narration than from the consequences of the acts themselves.
However, the Casey Court’s own “undue burden” analysis of Pennsylvania abortion regulations was primarily consequentialist. A spousal notification requirement might literally prevent a woman from terminating her pregnancy, the Court reasoned, while the state’s persuasive efforts purportedly leave her free to make the “ultimate decision.”100 Such reasoning assumes a subject whose autonomy results only from volitional acts—a model as fictional as Griswold’s bedroom invasion. And, like the Griswold fiction, it ignores how reproductive rights require and produce women’s re-writing of gendered cultural narratives extending far beyond motherhood itself. As Margaret Sanger recognized, the struggle for reproductive rights is inextricably intertwined with a struggle for expressive freedom. The Court’s successive fictions of privacy have obscured that dual struggle, undermining women’s narrative autonomy at critical junctures of self-definition.
Meaningful substantive due process liberty requires not only acknowledgement of a linguistically-constituted subject that exercises self-governance through discursive self-authoring, but recognition of law’s own imposition of meaning and identity through regulatory discourses. A full examination of the doctrinal tools that might frame such acknowledgements is beyond the scope of this chapter, but certain doctrines do hold promise. The
Supreme Court has recognized an individual interest in being free from coerced listening, although as yet it has addressed the interest only as a legitimate check on other individuals’ exercise of free speech.101 However, as Robert Goldstein has pointed out, the Court has regulated the interrogation of persons in custody, limiting communication that “overwhelms” autonomous choice and dissolves distinctions between the individual and the state.102 Because reproductive rights have been deemed “fundamental,” discursive tactics in this context should likewise be recognized as infringing protected rights. Liberty requires not only the right to make self-defining choices, but the opportunity to script the meaning of such choices through dialogic interaction with, not subordination to, the state’s narratives. Liberty interests compel the recognition of a linguistic subject.
