Note

112 Yale L.J. 1545 (2003)

When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, going to Smith's house and leaving anti-abortion literature and a plastic model of a fetus on her doorstep. The next morning, the day of Smith's scheduled abortion, Driver left a message on her answering machine, asking her parents to call about a medical emergency involving their daughter. When Smith arrived at the clinic for her appointment, a protestor called out to her by name and accused her of murdering her baby. An unknown caller left a message for Smith at the clinic that Smith's parents knew about her plan and were distraught. Meanwhile, a clinic representative called Driver's number pretending to be Smith's father returning her message, and the person at the other end informed him that Smith had gone in for an abortion.
 
This example has become all too ordinary. (Incidentally, a divided court denied relief to Smith.) Having lost the legal battle to criminalize abortion, anti-abortion protestors have shifted to a strategy of extralegal deterrence through various techniques of shaming, harassment, and obstruction. Protestors publicize the names of patients and, in at least one case, their medical records. They film patients entering and leaving clinics, and post the images on the Internet. They record license plates in clinic parking lots; track down drivers' names and addresses; visit patients' homes; and send letters to them and their families, friends, boyfriends, and husbands. Protestors even pose as abortion providers, taking down personal information from callers and using that information to contact family members and urge them to intervene.
 
Abortion doctors are also targets of intentional exposure. Protestors picket outside doctors' homes, photograph them, videotape them, and observe them through binoculars. They leaflet cars with the names and addresses of clinic staff. They post doctors' names, addresses, phone numbers, and license plate numbers, as well as video footage of clinic entrances, on the Internet. Intent on going further, they have been planning, and may already have begun, to broadcast clinic footage on public access television.
 
What all these activities--to which this Note refers as "abortion outing"--have in common is that they destroy the privacy and anonymity on which the practice of abortion fundamentally depends. Patients need anonymity to be safe from community retaliation and free from the unwanted influence of friends, family members, and acquaintances. Doctors need privacy to be safe from harassment or violence by community members who oppose what they do. Abortion opponents have rightly guessed that reducing anonymity deters abortion, and their guess is paying off. Fewer and fewer doctors are practicing abortion, to the point where abortion is no longer accessible in much of the country, and prospective patients have been driven away from clinics by the threat of publicity.
 
Because Roe's constitutional right to privacy only protects women against state actors, abortion-rights advocates have fought at the federal and state levels for statutory and judicial protections against protestors. At the federal level, for example, they have helped pass the Freedom of Access to Clinic Entrances Act of 1995 (FACE), which criminalizes the use of, among other things, force or threats to prevent women from entering clinics, and the Drivers' Privacy Protection Act of 1994, which makes it more difficult for anti-abortion activists, among others, to obtain personal information based on names and license plates. At the state and local levels, they have secured laws, ordinances, and injunctions restricting protests outside clinic entrances and doctors' homes.
 
So far, however, advocates have largely overlooked common-law privacy rights as a possible source of protection. This may be a serious mistake. Two common-law torts, in particular, are well suited to the specific harm of abortion outing: the intrusion tort, which covers wrongful intrusions into a person's physical seclusion or personal affairs, and the publication tort, which covers wrongful publication of private facts. These torts are expressively valuable in that they focus on the individuals being harmed rather than on their general class, and empower these individuals to seek change directly through the courts rather than waiting to be protected by their legislators. The torts are also practical in that they actually compensate victims of past violations. They are easier to pursue than legislation, which requires tremendous momentum to overcome the burden of inertia, opposition from interest groups, and competition from other legislative priorities. They carry a lower burden of proof than criminal statutes such as FACE and may apply to a wider range of conduct. Moreover, given the Supreme Court's division over questions related to abortion privacy and its growing resistance to federal law that does not fall neatly within Congress's Commerce Clause powers, the states may now be the more promising arena for protecting abortion-related privacy.
 
This Note examines the possibility of using common-law privacy rights to cover gaps left by other forms of legal protection. Part II sorts out the various privacy interests at stake in the debate over abortion outing and takes stock of the conflicting interests of anti-abortion protestors, which courts must also weigh. Part III develops an account of which privacy interests might be protected through the common law. It will be clear from this account that, in its current form, the common law fails to match many of our intuitions about privacy, or, at best, is inconsistent. Part IV addresses constitutional limits and considerations. Part V concludes.