Select Page

Question 2 Would Not Lock Roe v. Wade into the NH Constitution

Professor Albert Scherr – UNH School of Law

The informational privacy right in NH Question 2 is very different from the decisional privacy right relied on in Roe v. Wade and the many subsequent cases in the U.S. Supreme Court addressing the same issue.

A variety of privacy rights have been read into multiple parts of the NH & U.S. Constitutions. They are all indirect as neither the U.S. nor N.H. constitution explicitly mentions the word “privacy.” Below is a brief rundown of these different privacy rights.
The Fourth Amendment of the U.S. Constitution and Part I, Article 19 of the NH Constitution protect a person against unreasonable searches and seizures. Most commonly, courts view that as a physical privacy right that has been expanded through case law to protect one’s reasonable expectation of privacy in those areas described in the Fourth Amendment and in Article 19.
The Fifth Amendment and its NH equivalent also describe the right against self-incrimination – one cannot be forced to be a witness against oneself. Put more directly in privacy terms, one cannot be forced by the government to say things about one’s internal thoughts in order to help them prove their case. One’s thoughts are private.

The Roe v. Wade privacy right is different. It protects a woman’s right to make a decision about whether to terminate pregnancy from governmental interference. To quote the Roe decision:

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153-154 (1973)

The Roe privacy right is a decisional privacy right.

The privacy right captured inNH Question 2 relates exclusively to informational privacy. It protects an individual’s personal and private information from government interference. This is entirely separate from protecting an individual’s right to make decisions without interference from the government. Though both rights protect against governmental interference, they are distinct and do not overlap.

For that reason, the informational right protected inNH Question 2 will not be construed as the same as the decisional one protected by Roe v. Wade.NH Question 2 will not impact the issue of abortion.