The Deliberative Privacy Principle: Abortion, Free Speech, and Religious Freedom
23 Pages Posted: 7 May 2020
Date Written: May 4, 2020
In this article, I propose that there is a deep connection among at least three seemingly disparate types of constitutional rights claims. Those three rights claims are the right to make the abortion decision for any reason one chooses; the right against compelled ideological speech; and the right of religious institutions to freely hire and fire their ministers (also known as the “ministerial exception”). In particular, there is a thread that unites all of these types of claims. That unifying thread is the concept of deliberative privacy. The connection among these rights claims has not been previously made explicit by courts or commentators. One goal of this article, then, is simply to reveal this underlying connection among constitutional rights. The other goal is to analyze the implications of considering all of these rights claims in relation to one another and as sharing a particular normative underpinning.
This article first describes each of the three constitutional rights claims in more detail and demonstrates that a shared concept of privacy underlies each of them. Then, this article analyzes the nature of the privacy concept in greater depth and considers its implications for constitutional doctrine.
Keywords: Right To Privacy, Fourteenth Amendment, First Amendment, Compelled Speech, Abortion, Ministerial Exception
JEL Classification: K36
Suggested Citation: Suggested Citation