Priority of Persons and the Right to Privacy


Under the highly contentious case of Roe v. Wade, the United States Supreme Court used the Due Process Clause of the Fourteenth Amendment to rule abortion as a form of ‘right to privacy.However, the Court also determined two “compelling state interests” that could override the women’s ‘right to privacy,’ that being “preservation and protection of maternal health” and “protecting the potentiality of human life.” After the first trimester, the state may restrict abortion in the interest of the mother’s wellbeing. At the point of fetal viability (when the fetus can survive outside the womb), the state’s interest in protecting the mother and the preborn reaches the “compelling” level, in which the state may choose to place restrictions or completely prohibit abortion. 

Photo by Tingey Injury Law Firm on Unsplash

The Court made a serious error in judgment when it ruled in favor of the mother’s right to privacy over the preborn’s right to life. Roe v. Wade made a decision contrary to human dignity as it disregards the central purpose of the law: to prioritize the human person. A law that is contrary to human dignity is a law that must be amended. 

Although the US constitution contains no explicit language about a ‘right to privacy,’ Roe v. Wade did manage to introduce such a concept in the case of abortion. It’s also worth mentioning that the US constitution does sustain the “right to life,” though the Courts have yet made enough efforts to acknowledge and protect the preborn person’s right to life.  But if we can derive an understanding of the right to privacy when it has no explicit right in the US constitution, how can we disregard the right to life when it is in fact already acknowledged in our laws?


To be clear, I do believe the right to privacy should be a right in US law, as there are certain instances in which privacy is required in order to uphold human rights. For example, forced sterilization of the disabled is a clear violation of human rights, where the State is intruding into a decision that should be personal and private. The State has no right to force people to be sterilized against their will.

So a basic right to privacy is validly deduced from our human dignity because without this understanding we would be susceptible to some form of human rights violation. Therefore, both the right to life and the right to privacy are critical. It’s important that we understand that the right to life does not overturn the right to privacy – it merely sets a limit on this right. At the same time, the ‘right to privacy’ for abortion does overthrow an essential human right, the right to life. 

There is a difference between possession of a right and the exercise of that right. As Jacques Maritain stated, “even where rights are ‘inalienable,’ a distinction must be made between possession and exercise, the latter being subject to the modifications and limitations dictated in each instance by justice.” For instance, freedom of religion is the right to profess religious teachings and to practice and worship according to one’s own faith. But if one’s religion consists of sacrificial rituals in which violence is perpetrated against other persons, this religious act is not permitted under the principles of freedom of religion. 

So it is possible to respect both rights, without contradicting either; but that can only be achieved if we set a limitation on the ‘right to privacy.’ 

If the state’s interest in the mother’s wellbeing and the protection of the “potential life” could override the ‘right to privacy’ for abortion, then the right to life, a fundamental human right already re-affirmed by the UDHR, should in fact take priority over this privacy right for abortion. However, the Court’s regard for the preborn person as a “potential human life” may be the source of this error. 

The preborn human is not a “potential life,” but rather a life with potential. A human fetus is a fetal human, and a human being is a human person. If we are to affirm this truth, then the logical implication from this is that a fetal human is a human person. The worth of any person is rooted not in her abilities or stage of development, but in her human dignity. For this same reason, the abilities of a fetal human do not determine her dignity any more than a toddler’s ability to crawl determines his humanity. 

When looking at the moral reasoning behind abortion, we have to accept that regardless of the reasons for obtaining an abortion, in any situation where abortion is deliberately performed, an innocent preborn person is intentionally harmed. Why should a ‘right to privacy’ trump an innocent person’s right to life? 

As John Finnis says, the law “is for the sake of persons,” and thus a right to life must have priority over this so-called ‘right to privacy’ for abortion.

The priority of persons is not just prioritizing the will of people merely because the people will it. Priority of persons refers to prioritizing that which is truly good for the human persons and what is in accord with human dignity. In a just society, in determining what is ‘good’ we must look at all persons involved and treat no human life as less valuable than another. 

In short, a law is not serving its purpose (i.e. priority of persons) if it is assuming the desire of one person at the expense of the life of another innocent person. The right to privacy must be enforced in accord with human dignity, not apart from, or over, human dignity.

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Published: March 4, 2022
Written by Anilda Rodrigues, WYA North America intern

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