“Can you think of any laws that give the government the power to make decisions about the male body?” Senator Kamala Harris asked Brett Kavanaugh during his U.S. Supreme Court confirmation hearings. Kavanaugh stammered, finally admitting that he could not think of any. That was in 2018; four years later, Kavanaugh joined a conservative majority to revoke the constitutional right to abortion when the Supreme Court overturned Roe v. Wade (1973). The issue in Dobbs was women’s reproductive freedom, but it implicated women’s privacy rights in ways Roe’s architects understood, and we are only now beginning to appreciate.
Roe rested on a right to privacy that grew out of two separate lineages anchored in Supreme Court opinions. The first, Mapp v. Ohio (1961), established a right to possess and consume obscene material. The second, Griswold v. Connecticut (1965), recognized a right to possess and use contraception. Together, these high court rulings erected two solid pillars for a right to sexual expression through a right to privacy.
In the following decades, litigants, judges, and private citizens reshaped, retooled, and redirected those rights. We should not be surprised that privacy rights have cut many ways since their inception.
Paradoxes of Women’s Privacy Post-Roe
Some feminists and consumers in the 1970s and 1980s took aim at sexual expression in public spaces—such as photos of near-naked women on billboards—and sexual expression that invaded the domestic realm unbidden—sexually explicit advertisements that entered homes—literally, through mail slots in the front door—or on television sets. They argued that, because this material was “thrust” into their view, without their consent, it violated their right to privacy.
As an historian, I specialize in researching and understanding the past, not predicting the future. So, ten years ago, when I concluded my book, How Sex Became a Civil Liberty, with a doomsday warning, I was venturing into unfamiliar territory. I did not anticipate that my warning might have any prophetic value.
What I said was this: Sexual privacy is under attack by the Left and the Right. The Right wants to reduce women’s privacy rights by imposing limits on their reproductive freedom. The Left wants to make sexual expression more accessible, which threatens to produce a sex-saturated public sphere that renders sex anything but private. It is women and girls, I argued, whose lives are most affected by both efforts because it is primarily through female bodies that this culture’s sexual expression takes place. And it is primarily female bodies that suffer the consequences through unwanted pregnancy, greater susceptibility to sexually transmitted infections, pressure to look and act like sex workers, and victimization by sexual assault, rape, and sexual harassment.
Were the Left and the Right both to emerge victorious in these battles, I argued, “women would lose the ability to control their reproductive lives at the exact moment that they began to inhabit a free-for-all sexual culture premised on the sexualization” of women’s and girls’ bodies.
Reproductive Privacy After Dobbs
Is that where we are today in 2025?
One thing I did not anticipate was the full and multi-faceted extent to which women and girls would lose their right to reproductive privacy. Under the Dobbs ruling, 41 states have already banned abortion under some or all circumstances—including to save the pregnant woman’s life or to end a pregnancy caused by a rapist and/or relative. They have also pursued invasive strategies for detecting terminated pregnancies—strategies that leave women without the kinds of meaningful privacy rights men take for granted.
Under the Biden administration, the U.S. Department of Health and Human Services (HHS) adopted extraordinary measures to try to safeguard women’s privacy. As of September 2024, the HHS website offered guidance about health information privacy, guidance which reveals how little HHS can do to protect women’s reproductive autonomy. HIPAA—the law we have learned to associate with medical confidentiality—can do little to protect private health information when state law enforcement believes it might provide evidence of a crime. In states that now criminalize abortion, the medical records of a woman suspected of aborting a pregnancy can be seized without her consent. HHS does not directly address fitness trackers and smartwatches but acknowledges that they, too, could be seized and used as evidence.
HHS warned women that even when HIPAA privacy rules are operative, they do not cover cell phone data or internet usage. In other words, “the privacy or security of your health information” is not secure “when it is accessed through or stored on your cell phones or tablets.” Law enforcement agents with “probable cause” can seize and break into cell phones and internet accounts to search for evidence of an illegal abortion.
Law enforcement can also use information gathered by third-party apps to investigate a possible abortion, including “period tracking” apps used to monitor menstrual cycles and manage fertility. All this private health information is now vulnerable to being used by the state to prosecute those seeking or providing abortion care.
HHS’s guidance on how to prevent one’s cell phones and tablets from incriminating them amounted to this: leave your device at home. Of course, following that guidance reduces and even eliminates the device’s utility to the owner. The Biden administration’s HHS advice to women was chilling. It revealed just how little privacy protection the federal government guarantees women of reproductive age in this post-Roe era.
Privacy seems to be disappearing as a woman’s right along with reproductive freedom. Even the Supreme Court Justices who dissented in the Dobbs case downplayed the importance of privacy, per se, focusing instead on women’s autonomy, liberty, and equal protection of the law. Were they accepting former Justice Ruth Bader Ginsburg’s longstanding criticism of privacy as the basis of Roe—or did they fail to anticipate the many high-tech ways that anti-abortion laws in the 21st century would violate women’s privacy?
Now that women have lost rights established by Roe, their privacy matters little to states gearing up to enforce draconian laws against abortion. In the meantime, our commercial cultre pressures women to expose, publicly, parts of their bodies long considered private –think belly buttons and sideboobs—in an unrelenting affront to our very selves. These political and cultural regimes reinforce each other, denying women’s privacy by subjecting female bodies to unique forms of public scrutiny.
It is not clear where we are going with regard to women’s sexual privacy, and, as a historian, I am reluctant to guess.
But a society that denies privacy to women—through cultural pressure to expose and legal surveillance—commodifies and dehumanizes us. It reduces us to parts, our value tied to our bodies’ usefulness to others, not ourselves.
Privacy is one crucial right that women must guard to preserve our autonomy. The legal history of privacy rights, from Griswold to Dobbs, speaks to the ongoing need for a feminist vision of privacy that erects a bulwark against state and market interference in our reproductive and sexual lives. The fact is, women’s bodies are powerful, and that is exactly why men want to control them.
