Privacy Rights and the Poor

A recent discussion of how the poor has special privacy concerns reminded me of an essay in a collection from the 1960s. Harriet Pilpel, whose biography sounds like an interesting subject to tackle, wrote about privacy rights and a major angle was how the state invaded them particularly when the poor was involved, including ironically pressure for them to use contraceptives (one of RBG's favorite cases involved pressure on a woman in the military to abort).  Pilpel also suggested that to truly protect privacy rights, the government might be obligated affirmative to do things.

A similar discussion, which provides an in depth defense of privacy rights, from the 1960s can be found here.  Pilpel did write in promotion of abortion rights at that time and given her dull oral argument contribution (largely an uninterrupted discussion of contraceptives policy issues) in Poe v. Ullman, perhaps her only behind the scenes efforts in later cases that reached the Supreme Court was a good idea.  Since we are on the subject, there are a few essays in honor of the 50th Anniversary of Griswold available online (Vol. 47, Issue 4).  Roe v. Wade is up the week after next in the Landmark Cases series on C-SPAN. 

Overall, I support the idea that "affirmative action" by the government is needed to protect rights and when applying benefits, particularly those essential for life, strings can violate constitutional rights.  The Declaration of Independence argues that governments are created to "secure" rights and one way this is done is by the government providing things. There is an assumption that "rights" are merely negative (or even more restrictive [comments] -- or maybe that is only "Rights"), but the courts are but one place where the government also supplies things.  A "right to education" by means of public schools is not a contradiction in terms though I guess some gymnastics can be done in most cases (the state has compulsory education laws, so provides public schools to avoid a "negative" result) though all types of social safety net -- at times secured as a right in state constitutions -- will not be covered there.

The increased intrusions of the state has led to a greater concern for providing exceptions in the area of religious belief. In fact, it has been argued that "in order to be permitted under the Establishment Clause, must lift "an identifiable burden on the exercise of religion."  If that is really the rule is debatable -- RFRAs surely seem to be more expansive -- here the overall principle is important.  Intrusions should also lead us to be more concerned with privacy and a case can be made that there is actually an obligation to do so especially when the state is helping to provide the burden.  School children in public schools do not lose their privacy rights merely because they can go to private schools.  Medicaid should not mean that certain types of health care are denied because of the moral beliefs of some few.  And, overall, assumptions about the poor should not lead to stereotypical requirements that put all the poor in one basket.  

The affirmative action case is back up this week and has led to a feeling of victimization by the usual suspects (darn Abigail Fisher looks pale -- can she get more white, both by appearance and feeling of entitlement? ).  Affirmative action is an imperfect way (as are them all) way to promote diversity and equality, the very name suggesting positive action being deemed necessary for equality.  The term involves a range of things and the overall principle is correct.  The same here: positive action is needed to protect privacy, including other times when the government is involved to advance some other end.  This is part of "liberty."