Informational Privacy After Dobbs

49 Pages Posted: 6 Oct 2023

See all articles by Carmel Shachar

Carmel Shachar

Harvard Law School

Carleen Zubrzycki

University of Connecticut School of Law

Date Written: July 7, 2023

Abstract

Dobbs v. Jackson Women’s Health Organization radically revised the constitutional “right to privacy,” declaring that such a right does not protect the decision to have an abortion. Less appreciated is that it expressly left intact the constitutional right to “informational privacy.” In so doing, Dobbs¬ became the next in a line of cases establishing constitutional protections for privacy alongside, and distinct from, both the substantive due process caselaw on intimate decision-making and the Fourth Amendment. This right to informational privacy has deep roots in our legal order, notwithstanding its vaguer history at the Supreme Court. It appears in the jurisprudence of all but one federal circuit as well as most state courts, and in an array of doctrinal settings, reflecting its intuitive cultural and normative force.

This article explores the surprisingly robust constitutional right to informational privacy post-Dobbs, and in particular its implications for abortion-related medical records—a particularly potent source of potential evidence, and deep privacy concerns, in a post-Dobbs world. Whatever else Dobbs is, it is also an invitation to take this value seriously – and for scholars and advocates to press the development of an “informational privacy” jurisprudence that survives, and to some extent counteracts, the erosion of decisional privacy.

Keywords: Dobbs, abortion, medical records, emrs, informational privacy, whalen, privacy, discovery

Suggested Citation

Shachar, Carmel and Zubrzycki, Carleen, Informational Privacy After Dobbs (July 7, 2023). Alabama Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4570500 or http://dx.doi.org/10.2139/ssrn.4570500

Carmel Shachar

Harvard Law School ( email )

501, Pound,Massachusetts Avenue
Cambridge, MA 02138
United States

Carleen Zubrzycki (Contact Author)

University of Connecticut School of Law ( email )

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