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Hastings Constitutional Law Quarterly

Authors

Rebecca Rabkin

Abstract

In the landmark 1992 abortion right case, Planned Parenthood v. Casey, the United States Supreme Court created a new dimension to the right to privacy, not previously articulated in the Court's fourteenth amendment jurisprudence: the right to philosophical privacy. The ideas promulgated by the plurality in that case echo themes found in the work of Existentialist philosophers, such as Kierkegaard, Nietzsche, Sarte and Camus. These themes, central to the work of many Existentialist scholars, include a rejection of the idea of an objective Truth and the Platonic theory of forms, the refusal to view traditional religious beliefs as a moral compass, the embrace of personal experience and individual autonomy, and the acceptance of life as full of pain and suffering. Like the work of the Existentialists, these themes are fundamental to the decision of the Casey plurality, and have also informed the Court's subsequent inquiries into the realm of privacy rights. In recent cases, such as Washington v. Glucksburg and Lawrence v. Texas, the Court has turned to Existentialist themes in its attempt to address the question of whether legislatures and courts should regulate the personal moral decisions of American citizens. While the Court has not been entirely united in its adoption of Existentialist themes in its Fourteenth Amendment jurisprudence, the state of the right to privacy after Casey suggests that the Supreme Court has grown increasingly reluctant to allow states to impose their moral values on individual decision-makers regarding questions of a philosophical and personal nature.

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