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The Problem of Privacy

The recognition of personal privacy, as distinguished from privacy in one's possessions, is a relatively new legal concept. It is also a limited right. In the 1988 case of Bowers v. Hardwick, the U.S. Supreme Court refused to extend the right of privacy to include homosexual activity between consenting adults. The Court reiterated that privacy considerations cannot be used to shelter socially unacceptable behavior such as drug use, possession of prohibited munitions, dangerous behavior, and behavior that offends deeply held societal norms. With this language, the Court shifted the balance between individual rights and societal stability toward community values.

In the 1989 Webster v. Reproductive Health Services decision, the Court broadened the authority of states to regulate the availability of abortions. The Court found that there was no overriding privacy right that supersedes the states' traditional right to regulate medical practice to protect the public health and safety. While this decision was heralded by antiabortion physicians, it should give all medical practitioners pause. The extent to which the state may regulate the availability and performance of abortions is precisely the extent to which the state may regulate all other aspects of medical care delivery. A state that may condition practice in state facilities, or with state funds, on the banning of abortions could use these same powers to determine which patients physicians may treat and what treatments will be allowed. The same authority that allows states to ban the routine treatment of addicts with controlled substances would allow the state to ban facelifts or any other medical treatment.

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