The Deliberative Privacy Principle: Abortion, Free Speech, and Religious Freedom

23 Pages Posted: 7 May 2020

See all articles by B. Jessie Hill

B. Jessie Hill

Case Western Reserve University School of Law

Date Written: May 4, 2020

Abstract

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

Hill, Beatrice Jessie, The Deliberative Privacy Principle: Abortion, Free Speech, and Religious Freedom (May 4, 2020). William & Mary Bill of Rights Journal, Vol. 28, 2019, Case Legal Studies Research Paper No. 2020-6, Available at SSRN: https://ssrn.com/abstract=3592922

Beatrice Jessie Hill (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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