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OpEdNews Op Eds    H3'ed 8/8/18

Why we all must reject Kavanaugh - and it's not just about Roe v Wade

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With the right-wing push to overturn Roe v Wade and repeal the Affordable Care Act, progressives are eager for the rejection of Brett Kavanaugh, but there are reasons for conservatives to reject Kavanaugh, all related to a universal concern, privacy.

Kavanaugh is on record as saying that he does not believe that the US Constitution guarantees any right to privacy, despite the clear wording of the Fourth Amendment. He also believes in the 'special need' exception that allows national security to override any perceived right or protection that the amendment provides. Other conservative justices, Neil Gorsuch among them, have also stated this view. Privacy is at the basis of HIPAA, the patients' Bill of Rights, and laws like the Financial Privacy Act of 1978. What if any of these laws were to be challenged and overturned?

The Cambridge Analytica/Facebook debacle over the past 3 years would not only not be a scandal, it would be legal. Businesses would be free to use financial and personal data as they saw fit; for their own marketing, to sell to other organizations, to manipulate the political landscape.

Far more troubling is the impact a judicial overturn of HIPAA could have. Imagine health-insurance companies allowed to demand your medical records from any facility to determine your eligibility for coverage. Imagine being required to undergo gene-mapping testing to determine your risk of developing breast cancer or Alzheimer's disease. Imagine, if the ACA were repealed, your genetic makeup being considered a pre-existing condition even though you have no symptoms of a condition let alone sought treatment for it. If you believe in market solutions for healthcare, you may say that insurance companies, being in the private sector, should be allowed to impose their own criteria for eligibility and risk-based pricing. But what if your eligibility for Medicare, Medicaid and SSI were dependent on such testing or scrutiny of medical records?

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Let us also consider the opposite of a Roe v Wade scenario, coercive birth control as opposed to voluntary. Our country has a sad and sordid history of genetic selection based on race or social status. In the 19th century, health clinics pushed for sterilization of black women so that the country would not be overrun by persons predetermined to be of inferior intelligence. In the early 20th century, the theory of eugenics, especially the scientific theories of Havelock Ellis regarding identifying the criminal mind, were given credence even by the American Medical Association, and infamously used in the defense of Nazi war criminals. Margaret Sanger, though she started her crusade for birth control as a feminist issue, used genetic inferiority as an argument for wide availability of birth control. As recently as the 1970s, women giving birth in Indian Health Services facilities were sterilized without either their knowledge or consent. Part of the justification for these practices was reducing dependency on government 'entitlement.' As recently as 2010, there are documented cases of coerced sterilizations performed on inmates of California prisons.

In a post-Kavanaugh world, where the privacy of medical records was not protected, gene-mapping science, amniocentesis, even ultrasounds could be used to justify requiring termination of genetically suspect fetuses, or mandating sterilization to prevent conception by genetically inferior or compromised parents whose offspring would be seen as future burdens on society. While this may seem far-fetched, we must remember that early in the 20th century Irish and Italian immigrants and their progeny (one of whom became President) were seen to be of inferior genetic stock, and a societal burden. What race, nationality or genetic predisposition might it be tomorrow? What ethnic, political or religious groups could be seen as national-security threats and extreme action justified based on 'special need'? History has shown us far too often how easily this can happen.

As shocking as it seems, the social implications of these practices have been debated for decades and are still being debated by bioethicists with no definitive limits or guidelines to prevent abuse. Even Supreme Court Justice Oliver Wendell Holmes upheld the state's role in the coerced sterilization of Carrie Buck in 1924 in Buck vs Bell, saying '3 generations of imbeciles are enough.' Neither Carrie, her mother Emma or her daughter Vivian were found to have any kind of mental illness. It seems Carrie was institutionalized simply for being pregnant at 17.

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This ruling in support of state-mandated sterilization has never been overturned.

We must all be vigilant in protecting the Fourth Amendment and our fundamental right to privacy. Kavanaugh and those who share his views on privacy and 'special-need' exceptions must never be confirmed to the US Supreme Court. In this new world where neither our thoughts, beliefs, financial status nor medical history are private, any of us could be found wanting, depending on the political climate of the time.

 

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Eileen is a mother, progressive activist, artist and poet in the Greater Seattle area.

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