Decisional Privacy in American Abortion Law: An Undisturbed Legacy of Disappointment

Traditionally the guiding light of abortion law, decisional privacy has proven itself an inadequate basis upon which secure women’s rights. Focusing on the enduring influence of Roe v Wade[1], this essay will demonstrate that whilst, prima facie, federal abortion caselaw, post 1973, has advanced liberty and equality rationales, in lieu of privacy, its reasoning has remained largely within a consistent conceptual paradigm. Further it will argue to this effect, decisional privacy, has served as a doubled edged sword[2] for women’s rights advancing a truanted concept of autonomy[3] and providing a justification for social irresponsibility[4] from the State.

Literature Review

Although discourse on abortion caselaw predominately explains Roe as an application of privacy rights[5], accounts of the Supreme Court’s decision rarely acknowledge its substantive tensions[6]. Consequently, though discussion of subsequent decisions accurately recognises a shift in emphasis towards the notions of liberty and equality[7], they tend to overemphasise this as more than merely tonal.

Moreover, whilst privacy justifications of abortion have been aptly criticised for their unenumerated nature[8], the critique of feminist scholars[9] provides a stronger explanation of privacy’s inadequacy as a vehicle for women’s rights.

Decisional Privacy and Roe

The strongest indication that abortion has moved on from privacy, is the stark contrast of language between the Supreme Court’s two epochs: Roe[10] and Casey[11]. Proponents of decisional privacy’s demise would likely highlight that whereas previously[12] the court stressed abortion rights were secured by a “right of privacy … [residing in the Fourteenth Amendment] … broad enough to encompass a women’s decision”[13], they later came to chart a new course through liberty. Hence from Webster[14] onwards, where Roe’s[15] justification was narrowed to one of liberty[16], the court came to stress that the “constitutional liberty of … women”[17] secured their abortion rights, “the controlling word …[being]…liberty”[18]. Further it might be highlighted that but for Blackmun J[19], whose impartiality is dubious given his centrality to Roe[20], Casey’s[21] emphasis upon a liberty based abortion occurred without recourse to any privacy dimension[22]. A trend continued by the court never mentioning “privacy” in Hellerstedt[23]. Hence, a proponent may argue that post 1973 federal caselaw indicates decisional privacy was replaced by liberty.

However, this argument is unpersuasive because it overlooks the subtext of the court’s terminology. As Schneider has persuasively argued[24], it would have been unusual for Douglas J to have situated abortion within a “Blessing of Liberty”[25], namely the “freedom to care for one’s health and person”[26], if it was a traditional privacy right. Indeed, throughout all[27] of Roe’s supplementary opinions the consistent thematic assumption, is that “by the term privacy… [the court means abortion is guaranteed by] … a form of liberty”[28]. Considering the extensive warnings[29], later called costs[30], Blackmun J identifies had the court not recognised legal abortion[31], it is probable he adopted the term privacy due to its broad appeal[32] and not a conceptual suitability. Further, the notion that liberty replaced decisional privacy is unappealing and misunderstands the nuance of decisional privacy. Functionally equivalent to liberty[33], decisional privacy serves conceptually to create a space in which decisions central to a person’s dignity and autonomy can be made[34]. It enables a person to exclude[35] the interference, ridicule, pressure, and punishment of others[36]. Yet notably, imbued within this notion of is a guarantee of negative liberty[37]; a protection against the interference of others. Hence Douglas J when situating abortion, did so as a guarantee against “restraint or compulsion” [38].

A Shift in Emphasis and Tone

The paradox of decisional privacy’s continuity and subsequent caselaw’s reliance upon liberty, is the result of a mere change in emphasis. Despite Casey’s emphasis upon liberty and its abolition of the trimester scheme[39], commonly understood as a watershed moment for abortion rights, it maintains a clear concern for decisional privacy[40]. Hence it recognises that the Fourteenth Amendment protects choices “central to personal dignity and autonomy”[41].Indeed this concern is again recognised by Stenberg[42] and Justice Ginsburg’s influential Gonzales dissent[43] . Further, within Casey’s affirmation of Roe’s “central holding”[44], its legacy of the “undue burden test”[45] as proposed in Webster[46] , remains firmly rooted in a respect for women’s negative liberty: “a shorthand for the conclusion that … state regulation … placing … substantial obstacle[s] in the path of a woman … is invalid”[47]. Casey therefore entrenched the specific liberty espoused by decisional privacy. Hence, Stevens J’s recognition that “decisional autonomy must limit the state’s power”[48] and Ginsburg J stating that abortion providers which “strew impediments … cannot survive” a court which “adheres to Roe and Casey”[49].

Moreover, even though a stronger regard for the state’s interest in protecting pregnant women and foetal life is evident within subsequent caselaw[50], this does not serve to undermine decisional privacy’s lasting influence. Indeed, privacy has always been qualified, not an “absolute right”[51] and therefore must be balanced against alternative competing interests[52]. Thus the court’s reasoning remains within a traditional privacy paradigm, even if its balances differently.

Whilst recognition of equality, which cannot be explained by a tonal shift, has also somewhat become a parallel justification for abortion, it is doubtful equality has undermined decisional privacy’s supremacy. At best, the clearest recognition of this principle came in Ginsburg J’s Gonzales dissent[53] where she claimed that “undue restrictions on abortions … do not seek to vindicate some generalised notion of privacy; rather they, centre on a woman’s autonomy … and thus to enjoy equal citizenship”[54]. Moreover, a similar recognition of equality might exist in Casey’s discussion of a woman’s “unique liberty” [55] and Stevens J more explicit “equal dignity”[56]. However, these discussions are insufficient to conclude that equality has become an abortion rationale. Instead they indicate that equality serves as another lens by which to recognise the importance of a woman’s liberty. Further, even if this were not true, equality would remain a secondary justification to decisional privacy, as it has only ever been afterthought within judgements and gained little traction.

Stagnating Women’s Rights

As the dominant principle behind abortion, decisional privacy is an imperfect vessel for female empowerment[57]; abandoning it in favour of a holistic liberty[58] or fleshed-out equality based abortion[59] would have been step forward. Decisional privacy does not inquire into the voluntariness of sex[60], nor a potential disconnected between the control of reproduction and the control of sexuality[61]. A species of liberal privacy, it necessitates a division between what is private and what is public or a separation of the state’s sphere of interest from interest of the individual[62] family’s[63]. However, this damages the advance of women’s rights because it prohibits the state from intervening into the family home, entrenching pre-existing gender power imbalances[64]. Indeed, such is the severity of the imbalances identified by MacKinnon[65], the very possibility of privacy further weakening a woman’s resolve to reject male sexual desires, by removing the risk of childbirth, cannot be overstated.

Alternatively, privacy has also served as a disingenuous framework for women’s rights, in a manner liberty could not[66], by enabling the progress it has made to be undermined through practical restraint[67]. Following from the public-private divide and privacy’s negative liberty, there is no obligation upon State to ensure the conditions necessary to make a free choice exist, merely an obligation not impose additional barriers[68]. Hence McRae[69] was able to recognise abortion’s theoretical basis as a woman’s liberty but also deny the necessary federal monetary assistance to realise that liberty. A restriction disproportionately[70] harming women already made most vulnerable in society: the indigent[71]. Hence privacy’s inadequacy is demonstrated by it granting some women an abortion privilege but not all a right[72].

Those less sceptical of privacy, may challenge this characterisation as being unduly narrow and suggest that it discounts privacy’s emancipatory role.[73]. It might be argued that without decisional privacy’s protection, pregnant but unready woman would be forced to continue enduring oppressive degrees of societal shame and criticism[74]. Hence owing to the fear of unwanted pregnancy, the perception of a woman’s sexual desire would, unlike a man’s, continue to be perceived as illegitimate. Privacy may therefore secure a woman’s right to sexual self-determination[75] and equal gratification. Privacy’s emancipatory role may further be highlighted by enabling women to control whom the information of their termination is disclosed to. Hence women fearing chastisement and ostracism[76] are empowered by privacy, to conceal their choice from those they wish to maintain a relationship with[77]. These supporters of privacy would likely therefore argue adopting an alternative basis to justify abortion would undermined rather than advance women’s rights.

However, the argument that privacy serves to emancipate women is severely undermined by its poor grasp of empowerment. Even disregarding that women’s sexual desire bears social stigma for more than merely the risk of pregnancy and thus is unlikely to be realised in a patriarchal society, viewing privacy as liberating misses that privacy serves only to demand tolerance within society. Hence it creates a perverse form of empowerment[78]. Indeed, a tolerance to respect people’s different private lives, is what a jural system calls for when it demands respect for a women’s decisional privacy. However, this does not serve to advance women’s rights, it serves to imbed the notion that women who seek an abortion are minorities in society and excuses a court from denouncing societal prejudices against them[79]. Unlike with a holistic liberty, privacy serves only to empower women with an excuse to disobey social norms, not challenge them. Hence privacy is an ill-suited principle on which premise such a fundamental right for women.

An Undisturbed Legacy of Disappointment

Overall, it would be farcical not to acknowledge that the legal guarantee of abortion, regardless of its principled justification, has been an unrivalled achievement for women’s rights. However, it has since become clear that the enduring basis upon which the Supreme Court recognised this guarantee, decisional privacy, struggles to reconcile itself with the contemporary challenges of female empowerment. The above analysis demonstrates that privacy was an inadequate basis on which to secure abortion, providing no theoretical resistance against a series of practical limitations designed to undermine a woman’s access to her rights. Moreover, it’s inability, borne from a deference to the public-private divide, to challenge discriminatory gender norms and power imbalances within a private family home further disqualifies it as an appropriate basis for abortion. In addition, the above analysis also demonstrates that whilst tonally the Supreme Court has shifted from expressly recognising decisional privacy as the basis of abortion to placing a greater emphasis upon liberty as a justification, the notion of liberty the court continues to espouse remains firmly rooted within a privacy based understanding. Indeed, an analysis of the internal conceptual tensions within Roe evidences that the courts landmark revision to abortion rights, namely the adoption of the undue burden test, is little more than a reformulation of Roe’s negative liberty perspective. Further, subsequent caselaw has simply confirmed decisional privacy’s primacy, by situating the guarantee of abortion within the Fourteenth Amendment, thereby recognising abortion is a protected right due to its lasting impact upon a woman’s autonomy and dignity. Although, some might argue that privacy has emancipated women, encouraging them to realise their right of sexual self-determination, this argument alone insufficiently justifies privacy’s other conceptual failings and can be fatally undermined by its circumspect view of female empowerment. Further whilst some may cite the emergence of an equality based focus in the courts reasoning as evidence of a challenge to decisional privacy’s pre-eminence, the afterthought nature of equality within this reasoning serves to undermine the argument’s persuasiveness. Hence though it is disappointing, decisional privacy has remained the guiding light of US abortion right cases; had the Supreme Court adopted a holistic liberty based justification instead woman’s rights would have been advanced further.

Bibliography

Case Law

Roe v. Wade, 410 U.S. 113 (1973)

Harris v. McRae, 448 U.S. 297 (1980)

Webster v. Reproductive Health Services, 492 U.S. 490 (1989),

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Stenberg v Carhart 530 U.S. 914 (2000)

Gonzales v Carhart 550 U.S. (2007) Nos. 05.380 & 05.1382

Whole Woman’s Healthcare v Hellerstedt 579 U.S. (2016) No. 15-274

Amicus Briefs

Janice Macavoy and over 110 Other Women in the Legal Profession, no.15-274, Whole Woman’s Healthcare v Hellerstedt 579 U.S. (2016) No. 15-274

Available at: https://www.reproductiverights.org/document/whole-womans-health-v-cole-amicus-brief-from-janice-macavoy-janie-schulman-and-over-110-oth

National Women’s Law Centre and 47 Additional Organisations Committed to Equality and Economic Opportunity for Women, No.15-274, Whole Woman’s Health v Kirk Cole, Commissioner of Texas Dept. of State Health Services

Available at https://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs_2015_2016/15-274_amicus_pet_NationalWomensLawCenter.authcheckdam.pdf

Journal Articles

Dawn E. J, ‘Abortion: A Mixed and Unsettled Legacy’, The Rehnquist Legacy, Craig Bradley, Cambridge University Press, 2006; IU Law-Bloomington Research Paper no.26.

Available at SSRN: https://ssrn.com/abstract=739230

Erwin C & Michele G, ‘Abortion: A Woman’s Private Choice’, (2017) Texas Law Review, Vol 95, 2017, Forthcoming; UC Irvine School of Law Research Paper No. 2017-19

Available at SSRN: https://ssrn.com/abstract=2957719

Erika B, ‘A Putative Right in Search of a Constitutional Justification: Understanding Planned Parent v Casey’s Equality Rationale and How it Undermines Women’s Equality, (2017) Tortora Symposium on the Fourteenth Amendment and Abortion, Quinnipiac Law Review, Forthcoming.

Available at SSRN: https://ssrn.com/abstract=3034348

Mary Z, ‘The Price of Privacy, 1973 to the Present’, (2013) FSU College of Law, Public Law Research Paper No.635

Available at SSRN: https://ssrn.com/abstract=2258595

Sarah W, ‘Reflections on the Twenty-Fifth Anniversary of Roe v Wade’, (1999) 62 Alb. L. Rev. 811

Available at: http://cstl-hcb.semo.edu/pgershuny/Roe%20v.%20Wade%2025%20years%20later.htm

George J. A, ‘The Supreme Court, Privacy, and Abortion’, N Engl J Med 1989; 231: 1200-1203

Available at: http://www.nejm.org/doi/full/10.1056/NEJM198910263211720

Tracey A.W & Kate C, ‘Abortion clinic patients’ opinions about obtaining abortions from general women’s health care providers’, Patient Education and Counselling 81 (2010) 409-414

Alice C, ‘Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff’, (2003) 112 Yale L.J. 1545, 1576

Tara I. K, ‘Abortion on the Supreme Court Agenda: Planned Parenthood v Casey and its Possible Consequences’, (1992) L. Med. & Health Care 243, 248

John H. E, ‘The Wages of Crying Wolf: A Comment on Roe v Wade’, (1973) Faculty Scholarship Series. 4112

Elizabeth M. S, ‘The Violence of Privacy’, (1991) 23 Conn. L. Rev. 973, 1000

Kenneth K, ‘The Supreme Court, Term-Foreword: Equal Citizenship Under the Fourteenth Amendment’, (1977) Harvard Law Review, Vol. 91, No. 1

Richard S. M, ‘Re-reading Roe v Wade’, (2014) 71 Wash. & Lee L. Rev. 1025, 1046

Philip A. S, ‘The Right to Privacy: Roe v Wade Revisited’, (1983) 43 Jurist 289, 317

Ruth B. G, ‘Some Thoughts on Autonomy and Equality in Relation to Roe v Wade’, (1985) 63 N.C.L Rev. 375

Jamal G, ‘The So-Called Right to Privacy’, (2010) University of California Davis Law Review, 43(3): 715-748.

Ken G, ‘One Hundred Years of Privacy’ (1992). Wisconsin Law Review 1992(5): 1335-1441.

Books

Catharine M, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987)

Beate R, The Value of Privacy (Policy Press 2005)

R Copelon, “Unpacking Patriarchy: Reproduction, Sexuality, Originalism and Constitutional Change”, found in: Jules L, A Less Than Perfect Union – Alternative Perspectives on the U.S Constitution (Monthly Review Press New York 1988)

[1] Roe v. Wade, 410 U.S. 113 (1973)

[2] Rhonda Copelon, “Unpacking Patriarchy: Reproduction, Sexuality, Originalism and Constitutional Change”, found in: Jules L, A Less Than Perfect Union – Alternative Perspectives on the U.S Constitution (Monthly Review Press New York 1988), 314

[3] Ibid 306

[4] Ibid 322

[5] Ken Gormley, ‘One Hundred Years of Privacy’ (1992). Wisconsin Law Review 1992(5): 1335-1441, 1392 -George J. Annas, ‘The Supreme Court, Privacy, and Abortion’, N Engl J Med 1989; 231: 1200-1203 -

Alice Clapman, ‘Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff’, (2003) 112 Yale L.J. 1545, 1576, 1568 – John H. Ely, ‘The Wages of Crying Wolf: A Comment on Roe v Wade’, (1973) Faculty Scholarship Series. 4112, 928 - Mary Ziegler, ‘The Price of Privacy, 1973 to the Present’, (2013) FSU College of Law, Public Law Research Paper No.635, 1

[6] John H. Ely, ‘The Wages of Crying Wolf: A Comment on Roe v Wade’, (1973) Faculty Scholarship Series. 4112, 931, Richard S. Meyers, ‘Re-reading Roe v Wade’, (2014) 71 Wash. & Lee L. Rev. 1025 -1046, 1029 - Elizabeth M. Schneider, ‘The Violence of Privacy’, (1991) 23 Conn. L. Rev. 973, 1000, 996

[7] George J. Annas, ‘The Supreme Court, Privacy, and Abortion’, N Engl J Med 1989; 231: 1200-1203, Tara I. Koslov, ‘Abortion on the Supreme Court Agenda: Planned Parenthood v Casey and its Possible Consequences’, (1992) L. Med. & Health Care 243 – 248, 244 - Jamal Greene, ‘The So-Called Right to Privacy’, (2010) University of California Davis Law Review, 43(3): 715-748, 717

[8] Supra n.2 306-308 - Dawn E. Johnsen, ‘Abortion: A Mixed and Unsettled Legacy’, The Rehnquist Legacy, Craig Bradley, Cambridge University Press, 2006; IU Law-Bloomington Research Paper no.26, 8 - Richard S. Meyers, ‘Re-reading Roe v Wade’, (2014) 71 Wash. & Lee L. Rev. 1025 -1046, 1029 - Jamal Greene, ‘The So-Called Right to Privacy’, (2010) University of California Davis Law Review, 43(3): 715-748, 732

[9] Beate Rössler, The Value of Privacy (Policy Press 2005) - Supra n.2 - Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987) - Elizabeth M. Schneider, ‘The Violence of Privacy’, (1991) 23 Conn. L. Rev. 973, 1000

[10] Surpa n.1

[11] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

[12] Ken Gormley, ‘One Hundred Years of Privacy’ (1992). Wisconsin Law Review 1992(5): 1335-1441, 1392 - George J. Annas, ‘The Supreme Court, Privacy, and Abortion’, N Engl J Med 1989; 231: 1200-1203 - C Alice Clapman, ‘Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff’, (2003) 112 Yale L.J. 1545-1576, 1568

[13] Surpa n.1 [Blackmun] [153]

[14] Webster v. Reproductive Health Services, 492 U.S. 490 (1989) [Rehnquist J] [520]

[15] Surpa n.1

[16] Dawn E. Johnsen, ‘Abortion: A Mixed and Unsettled Legacy’, The Rehnquist Legacy, Craig Bradley, Cambridge University Press, 2006; IU Law-Bloomington Research Paper no.26, 14

[17] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) [869]

[18] Ibid [846]

[19] Ibid [926]

[20] Surpa n.1

[21] Surpa n.17 [Blackmun J] [926]

[22] Jamal Greene, ‘The So-Called Right to Privacy’, (2010) University of California Davis Law Review, 43(3): 715-748, 729

[23] Whole Woman’s Healthcare v Hellerstedt 579 U.S. (2016) No. 15-274 19

[24] Elizabeth M. Schneider, ‘The Violence of Privacy’, (1991) 23 Conn. L. Rev. 973, 1000, 997

[25] Surpa n.1 [Douglas J] [210]

[26] Ibid [212]

[27] Surpa n.1 [Stewart J] [168-170]

[28] Surpa n.1 [Rehnquist J] [172]

[29] Surpa n.13

[30] Surpa n.17 [856]

[31] John H. Ely, ‘The Wages of Crying Wolf: A Comment on Roe v Wade’, (1973) Faculty Scholarship Series. 4112, 923 - Erwin C Chemerinsky & Michele G Goodwin, ‘Abortion: A Woman’s Private Choice’, (2017) Texas Law Review, Vol 95, 2017, Forthcoming; UC Irvine School of Law Research Paper No. 2017-19, 1210

[32] Surpa n.2, 316

[33] Alice Clapman, ‘Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff’, (2003) 112 Yale L.J. 1545 -1576, 1568 - Beate Rössler, The Value of Privacy (Policy Press 2005), 87

[34] Tara I. Koslov, ‘Abortion on the Supreme Court Agenda: Planned Parenthood v Casey and its Possible Consequences’, (1992) L. Med. & Health Care 243 – 248, 245

[35] Beate Rössler, The Value of Privacy (Policy Press 2005), 84

[36] Ibid 81

[37] Ibid 80 - Surpa n.2 306

[38] Surpa n.25 [212]

[39] Surpa n.17 [873]

[40] Surpa n.34

[41] Surpa n.17 [851], [853]

[42] Stenberg v Carhart 530 U.S. 914 (2000) [Breyers J] [920]

[43] Gonzales v Carhart 550 U.S. (2007) Nos. 05.380 & 05.1382 [Ginsburg J] [2]

[44] Surpa n.34, 243

[45] Surpa n.17 [877] - Whole Woman’s Healthcare v Hellerstedt 579 U.S. (2016) No. 15-274 19 [Breyner J] [19] - Whole Woman’s Healthcare v Hellerstedt 579 U.S. (2016) No. 15-274 19 [Thomas J] [5] - Erwin C Chemerinsky & Michele G Goodwin, ‘Abortion: A Woman’s Private Choice’, (2017) Texas Law Review, Vol 95, 2017, Forthcoming; UC Irvine School of Law Research Paper No. 2017-19, 1197

[46] Surpa n.14 [O’Connor] [530]

[47] Surpa n.17 [877]

[48] Ibid [916

[49] Whole Woman’s Healthcare v Hellerstedt 579 U.S. (2016) No. 15-274 19 [Ginsburg J] [2]

[50] Surpa n.17 [846]

[51] Surpa n.1 [Blackmun] [154]

[52] Philip A. Smith, ‘The Right to Privacy: Roe v Wade Revisited’, (1983) 43 Jurist 289 – 317, 309

[53] Erika Bachiochi, ‘A Putative Right in Search of a Constitutional Justification: Understanding Planned Parent v Casey’s Equality Rationale and How it Undermines Women’s Equality, (2017) Tortora Symposium on the Fourteenth Amendment and Abortion, Quinnipiac Law Review, Forthcoming, 127

[54] Surpa n.43 [4]

[55] Supra n.17 [852] - Erika Bachiochi, ‘A Putative Right in Search of a Constitutional Justification: Understanding Planned Parent v Casey’s Equality Rationale and How it Undermines Women’s Equality, (2017) Tortora Symposium on the Fourteenth Amendment and Abortion, Quinnipiac Law Review, Forthcoming, 136

[56] Surpa n.17 [920]

[57] Surpa n.2, 320

[58] Elizabeth M. Schneider, ‘The Violence of Privacy’, (1991) 23 Conn. L. Rev. 973, 997

[59] Surpa n.2, 306

[60] Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987), 94

[61] Ibid

[62] Ibid 97

[63] Surpa n.2, 314 – Supa n.60, 93

[64] Surpa n.58, 983

[65] Surpa n.60, 98-100

[66] Surpa n.58, 997-998

[67] Surpa n.34, 244

[68] Ibid – Surpa n.60, 96

[69] Harris v. McRae, 448 U.S. 297 (1980) [312-318]

[70] Surpa n.2, 315

[71] Erwin C Chemerinsky & Michele G Goodwin, ‘Abortion: A Woman’s Private Choice’, (2017) Texas Law Review, Vol 95, 2017, Forthcoming; UC Irvine School of Law Research Paper No. 2017-19, 1241, Ruth B. Ginsburg, ‘Some Thoughts on Autonomy and Equality in Relation to Roe v Wade’, (1985) 63 N.C.L Rev. 375, 377

[72] Surpa n.60, 100

[73] Surpa n.35, 96

[74] Alice Clapman, ‘Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff’, (2003) 112 Yale L.J. 1545 -1576, 1546 – Surpa n.2, 317

[75] Surpa n.2, 317

[76] Alice Clapman, ‘Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff’, (2003) 112 Yale L.J. 1545 -1576, 1549

[77] Tracey A.Weitz & Kate Cockrill, ‘Abortion clinic patients’ opinions about obtaining abortions from general women’s health care providers’, Patient Education and Counselling 81 (2010) 409-414, 412

[78] Surpa n.2, 315

[79] Ibid, 321