One of the reasons the recent Supreme Court decision in Dobbs is so upsetting and infuriating is that it denies people have a right to privacy. The right to privacy is such a bedrock American principle that questioning it shakes the earth.
This right goes back before the founding of the Republic. The Declaration of Independence enshrined the belief that everyone has a right to “life, liberty, and the pursuit of happiness”. The point of this is to set a clear boundary between what you can do and what a government can legitimately force you to do.
If people of the day didn’t believe in the right to privacy, I suspect there wouldn’t be an independent country. We could have just suffered along as part of the English Empire, allowing the king to impose his will on citizens without restraint. We got a limited form of government, with individual rights, because the people of the time found that intolerable.
Since America was formed, the U.S. government and all the states recognized the right of “persons” to live their lives without interference. The definition of “person” changed to include such actual natural persons as people of color and women, but the granting of legal recognition to these groups implied that the fundamental right to privacy—to run their own lives without undue restraint and to pursue happiness—was supposed to be granted to these groups.
I’m sure you could cite numerous violations of this principle in practice, but in theory the rights of all individuals are granted equally by the law. The Constitution guarantees equal application of the law to all, and anything else is a defect.
The Dobbs decision is, therefore, deeply un-American.
It’s time to redirect the Court to get back on board with American values. I therefore propose Congress adopt and the President sign The American Values Act, as specified here (and modified through the best processes of the American political system, naturally).
The American Values Act
This Act shall be known by the title, “The American Values Act”.
The people of the United States have always expected government officials to respect the privacy of people residing in this country. While this right to privacy is not written in the Constitution, it is fundamental to freedom. It is a basic human right, guaranteed by the Ninth Amendment. It is a pillar of due process. It is the foundation of legitimate law and application of law.
The right to privacy most distinguishes this country from others, making U.S. citizenship an object of envy throughout the world. The right to privacy is a fundamental American value, cherished since the beginning of America and is to be respected by all institutions in this country.
This Act specifies certain tenants of that right to privacy, and requires the United States government and the governments of each and every State (“governments") to respect the right to privacy of all natural persons resident of this country, regardless of where that person is located. The listing or defining of a right in this Act does not disparage or negate any other human right. The Act merely sets a minimum standard of conduct for all governments.
Section 1—Fundamental Rights of Natural Persons
By this Act, governments are required to allow all natural persons over the age of eighteen years to determine to the full extent how to live, with the following adults excepted:
- Those found guilty of a crime of violence, for the duration of any prison sentence.
- Those found to be incompetent by due process in a legal proceeding.
Such persons shall be afforded rights to privacy to the maximum extent commensurate with state supervision. Governments must respect and protect the full rights of privacy of all other adult natural persons.
The right to privacy protected by governments shall extend to:
- Determination where to travel and where to reside.
- Determination who to meet and who to associate with, as well as in what fashion while in private.
- Determination what sensory input is allowed in their immediate environment.
- Determination of what to ingest, inhale, and inject.
- Determination of all medical procedures.
- Determination of what products to buy and use, and the freedom to use them, except where there is a reasonable expectation that the use of such products may cause death or irreparable harm to others.
In general, each adult natural person shall have full power to control their body and the immediate space around it.
These rights to privacy shall not be infringed except to protect the welfare of natural persons, and only to the extent necessary for such protection.
Governments are required to allow the parents or legal guardians of natural persons before eighteen years of age to make the determination of these same rights for their minor children, except in such cases as by law governments determine there is a need to further protect such under-age residents. In such cases, governments may set further restrictions on how such under-age residents are treated.
Governments are required to provide public education for all children sufficient for their competence in adulthood, and may require their attendance for such education, as well as reasonable standards of conduct of minor children during such education.
The right to privacy shall be respected from the time of birth of a natural person until the time of their death. Other than as specified here, no right to privacy shall be afforded to any entity that cannot be shown to be a sentient being, with the common traits of a sentient being, such as consciousness of self, empathy for others, a consciousness of death, and other factors normally associated with functioning adult humans.
Section 2—Equal Protection of the Law
Functional democracy and the ability of citizens to fully participate in that democracy is necessary for the right to privacy and other human rights. Excluding anyone from participation in democracy on the basis of factors beyond their control inherently limits their right to privacy. Therefore, governments shall provide for unrestricted participation of all natural persons in elections and other aspects of democracy.
Governments shall treat, to the extent practical, all natural persons consistently, setting rules that do not discriminate on the basis of any characteristic outside the reasonable control of an individual.
Governments shall not create or enforce any legal impediments to voting, whether intended or not, that discriminate among voters on the bases of characteristics outside their reasonable control. Specifically:
- Governments must ensure that the accessibility of the means to vote in all elections are substantially the same for all persons qualified to vote.
- Governments must provide voting mechanisms that allow each person a substantially equal chance to cast their vote.
- Governments may not make any provision in law with the effect of preventing persons from casting their votes in such a manner as will best work for them.
The right to vote shall be available to everyone who has attained the age of eighteen years on a substantially equal basis, except for felons actually in government-managed prisons and those previously judged incompetent.
Governments shall provide reasonable means for people to protest and petition, both the government and all other powerful entities and persons. Such means shall include safe places for persons to assemble and peaceably state their opinions, and such places shall be close enough to the target of a protest that the target can see and hear such protestors.
For the purposes of this statute, “peaceably” means without physically attacking any person and without any threat of violence, including carrying weapons that would cause death or grave bodily harm.
Subsection (c)—Law Enforcement
Governments shall not enact any law that prevents any natural person or groups of natural persons from equal treatment under the law on the basis of any factor outside the control of that person.
Section 3—Personal Protection
The right to privacy depends on personal safety and security. Each person has a right to be secure in their persons, homes, papers, and other belongings against intrusions by governments and other private persons or entities. Any such intrusion shall be pursuant to pre-defined legal procedures and only on the showing of probable cause that a crime has been committed or is in the process of being committed. Such crimes shall be based solely on actual harm that might be done to another individual.
To protect such privacy, governments may not restrict measures on private property reasonably intended for the safety and security of natural persons at that property. This includes the possession and use of firearms on that property.
Governments shall provide a process for individuals to possess and carry firearms in public for their personal safety, where such individual shows that a firearm is necessary for their safety and no other means is practical for their protection.
The Second Amendment calls for a well-regulated militia. Governments shall regulate the militia for the purposes of the safety and security of society. Under this Act, the militia shall consist of all persons owning firearms within the jurisdiction of that government. The government will provide by law for such gun owners to appear on a regular basis for training and drills intended to inform these individuals of their role in protecting the community in the event of an emergency, including all training necessary for them to safely handle firearms.
Section 4—Regulation of Business
The Constitution gives the federal government power to regulate interstate and international commerce. The federal government shall use this power to protect the rights of privacy of natural persons against the intrusions of state governments and private entities.
All businesses which transact business in U.S. dollars, offer to or actually buy or sell across state lines, or employ persons who may come from states other than the one(s) where the business is located shall be treated as engaging in interstate commerce.
The rights of natural persons so protected shall include all the rights enumerated in Section 1 of this Act.
Section 5—Existential Threats and Crime Prevention
Some dangers, such as the danger of climate change, pose an existential threat to human life. No provision of this Act may be construed to prevent governments from requiring individuals to take actions necessary to protect the nation from any existential threat.
By ancient law the sovereign is responsible for protecting the nation from existential threats. The people of the United States are sovereign. By this Act, the people delegate responsibility for protecting the nation from existential threats, along with the power to regulate to the extent necessary for that protection.
In addition, governments are responsible for the safety and security of their communities. For this purpose, governments may and do enact laws that prohibit some behaviors. A government may violate the privacy of natural persons who are credibly accused of breaking the law under terms specified in the Constitution. In doing so, governments shall protect the individual’s right to privacy to the extent consistent with protecting others in society from harm.
Governments may take away property or freedom from any individual who violates well-formed and valid laws for the statutory terms of such violation.
No right enumerated in this Act shall be construed to prevent the federal government of the United States or the government of any state from fulfilling these responsibilities.
Section 6—Factors Outside the Reasonable Control of Individuals
For purposes of this Act, certain factors are considered, by definition, to be outside the normal control of natural persons. Under this Act, it is illegal for any government to discriminate on the basis of these factors.
By definition, the following factors are considered to be outside the reasonable control of natural persons: sex or gender based on natural inclinations, race, ancestral factors (including geographical family origin), age, and natural appearance.
This Act is also intended to prohibit governments from discrimination due to any other factor beyond the natural control of the individual, even if not specifically enumerated in this Act.
This Act will take force on the day and at the time signed into law by the President.
The provisions of this act set out the general outlines for respect for privacy. They are not intended to be comprehensive, just like the Ninth Amendment allows for unenumerated rights to be constitutional rights. The intent of the act is to set minimum standards by which to judge actions of the federal and state governments in the United States. (That includes local governments, as creatures of the state governments.)
Passing this act would immediately void the Court decision in Dobbs. Section 1 says, “In general, each adult natural person shall have full power to control their body and the immediate space around it.” This means that no state can tell a pregnant person not to have any fetus aborted. To make this abundantly clear, the right to privacy is granted to natural persons from the moment of birth until their natural death. To underline the point, a right to privacy includes control of the person’s own healthcare.
This is a more expansive protection of abortion rights than we had in Roe v. Wade. Roe only provided protection up to “viability”. This act provides protection until the fetus can be proven to be a “sentient being”, which is something that typically does not happen before the third trimester, roughly 29 weeks into the pregnancy.
This is because we are balancing the rights of an actual human (a pregnant person) with a theoretical one (the fetus). We should not take away legal rights from an actual human unless we have to balance those rights with another actual human.
Further, this act would make the issues of contraceptives, gay marriage, transgender identity, and interracial marriage moot. A government can only regulate those to the extent that any action with them could reasonably harm another person. They don’t.
The entire basis of the Dobbs decision was that the Constitution doesn’t guarantee a right to privacy, or even substantive due process. This act provides that guarantee. Under the terms of this act, there’s no legal basis for the Dobbs decision. It goes away.
And as an agent of one of the governments regulated by this act, all judges and justices are required to abide by the rights provided. The Supreme Court can’t abrogate these rights without violating the law.
If passed, this act would put an end to the abortion issue, along with a plethora of other human rights issues, in the United States. In practice, states (or the federal government) could regulate late term abortions, but only to a reasonable extent. For a functioning fetus in the last trimester that does not threaten the health of the mother, it is feasible to have a regulation that this fetus should be given the chance to survive outside the womb. That’s no doubt what happens anyway, because anyone who has reached the 30th week of pregnancy probably wants a live birth of a healthy baby.
Of course, Republicans could attempt to take over the federal government and repeal The American Values Act. But who is going to vote for anything that un-American?
I want to make it extremely clear to Republicans that they need to get on board with this act and vote for its passage. This act supports American values. Opposing it is un-American. You don’t want to be un-American, do you?
If you don’t believe in the right to privacy, may I gently suggest that the U.S. is not the country for you. You need to find a dictatorship. Perhaps Russia or even China would suit you better.
But if you hold this American value, the right to privacy, then I think you will be a strong supporter of The American Values Act, and will urge your representatives in Congress to vote for it.
See also The Seeds of Its Destruction, about how the Dobbs ruling is based on the lie that a fetus is a little human.
Do you believe that all people have an inherent right to privacy?
Do you believe that all people have an inherent right to privacy?