Privacy and the Paradox of Sexual Freedom

In Hadley Arkes' book Natural Rights and the Right to Choose, he makes some penetrating observations about American society which apply with equal force to some of the issues Britain is now facing. He writes,

In the name of 'privacy' and 'autonomy', [Americans] have unfolded, since 1965, vast new claims of liberty, all of them bound up in some way with the notion of sexual freedom. In the first steps, there was a liberty, for married couples, but then soon for unmarried persons, to have unregulated access to contraceptives. Next, the claim of privacy was extended into a private right to end a pregnancy, or destroy a child in the womb, at any time in a pregnancy, for virtually any reason. That same claim of privacy was soon extended to the freedom to end the lives of newborns afflicted with Down's syndrome or spina bifda. After the briefest interval, that same doctrine of personal autonomy was applied to the other end of the scale of age and converted into a claim to assisted suicide.

Ironically, this unfolding scheme of liberation has advanced even while privacy, in other domains, has been progressively crimped and disrespected by the law. Private corporations, private clubs, private households, have found themselves under thicker regulation, and the overhanging threat of lawsuits. The combined effect has been to remove the attribute most prized about privacy: the freedom to arrange one's own association, or private enclave, according to one's own, private criteria. But this recession of privacy and freedom seems to count for very little when set against the expansion of rights associated with sexual freedom. The dismantling of restraints on sexuality has evidently been taken as far more liberating, even exhilarating, perhaps because it has been taken as a matter of the most irreducible 'personal' freedom. And yet these freedoms, celebrated as per-eminently 'personal,' have required the assistance or intervention of surgeons and counselors, and they have quickly annexed to their cause the demand to have the support of public monies, drawn from tax-payers with the coercions of the law. It must surely count, too, as one of the paradoxes of this new phase in our law that people seem to identify their well-being, not with an obligation to preserve life or go to its rescue, but with the creation of vast new franchises to destroy human life, for wholly private reasons, without the need to offer a justification.

Each step in liberation has been marked, then, by a further detachment of people from the traditional restraints of the law. The corollary, of course, is that, as restraints have been removed, persons once protected by those restraints have been removed from that protection. Vast new liberties come along with vast new injuries - unless, of course, the victims no longer count. In any event, there is little doubt that these alterations in our law over the past thirty years have been taken as the hallmarks of a new regime of personal freedom; a freedom so vital to those who savor it, that any threat of having it qualified or diminished in any degree is taken as nothing less than an assault on the constitutional order itself.