CNN reports that Donald Trump “appeared to stumble into a contradiction” during an interview with MSNBC on the issue of privacy and abortion. Not at all; in fact, his words echo the late Chief Justice Rehnquist’s own views on the matter (albeit before he was chief justice).
Trump was asked if he believed there was a right to privacy in the Constitution, and he said, “I guess there is.” When the reporter suggested this view didn’t “square” with his pro-life stance, Trump retorted: “What does that have to do with privacy? How are you equating pro-life with privacy?”
CNN, ever glib, ends its report this way: “To answer Trump’s question, the United States Supreme Court equated the right to privacy as grounds to legalize abortion in its controversial 1973 Roe v. Wade decision.” Grammatically incoherent, but we see what they’re getting at.
Rehnquist might have answered Trump’s question differently. In his dissenting opinion in Roe v. Wade, he Rehnquist wrote:
I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.
To Trump’s “What does that have to do with privacy?” Rehnquist might have answered: “What, indeed?”
Acknowledging that the Constitution contains written provisions that embody a certain aspect of “privacy” (such as the right to be free from unreasonable searches and seizures, quartering soldiers, self-incrimination) in no way requires one to embrace the fiction that the Constitution also contains some unwritten right to abortion.
I’m not sure that Trump had all this in mind when chatting with MSNBC, but I dare say his instincts were right.
— Cathy Ruse is a senior fellow for legal studies at the Family Research Council.