December 24, 2003

Rush Limbaugh said something terribly interesting in his statement responding to the order that his medical records be released to prosecutors:

"But the larger issue is that the seizure of Mr. Limbaugh's private medical records without going through the process outlined by the state legislature is clearly an invasion of Mr. Limbaugh's constitutional right to privacy."

-- http://www.rushlimbaugh.com/home/daily/site_122303/content/statement.guest.html

The constitutional right to privacy comes from the holding of Griswold v. Connecticut, a 1965 Supreme Court case which struck down as unconstitutional a state law that prohibited birth control, even among married couples. The Griswold case provided the judicial foundation for Roe v. Wade.

This is the very issue that sparked controversy surrounding then President Reagan's nomination of Judge Robert Bork to the Supreme Court. Judge Bork's position was one of strict construction -- because the constitution itself makes no express reference to a right of privacy (which it doesn't), no such right exists. Abortion rights unquestionably dominated the public debate surrounding Judge Bork's nomination, but his view of proper constitutional interpretation also implicated the more generalized attack on the "liberal judicial activism" of the Warren Court.

I can only guess, but it seems a safe bet that Rush Limbaugh supported Judge Bork's nomination and he probably embraces Bork's interpretative philosophy. If so, not only can he not assert a constitutional right to privacy with respect to his medical records, he must eschew the existence of such a right altogether.

Funny how conservatives depart from the wisdom of their ideological heroes (or martyrs, as the case may be) when their own interests are at stake.

It is entirely possible, of course, that Limbaugh is actually referring to a right guaranteed by the Florida constitution. If so, he certainly should make that clear. After all, who would read or hear his statement and actually assume Limbaugh was referring to a state constitution? More important, allowing the assumption that he is referring to a federal right, whether he is or not, masks the very tenuous future of the constitutional guarantee of privacy in an ideologically conservative judiciary.