Bodily Autonomy: Our Inalienable Right Of Choice?
What Do The Courts Say?
Previously, I explored the topic of “personhood” with respect to the renewed public debate over abortion after blanket reversal by the Supreme Court of Roe v Wade (410 U.S. 113 (1973)), setting forth my arguments to the effect that the courts have already resolved this question through their multiple rulings on the use of DNA to identify a person.
However, we should not overlook the importance of the other great question frequently at issue in abortion debates: do women have the bodily autonomy to choose not to carry a child to term?
We should note that even Roe acknowledged that personhood was a superseding issue to the liberty interests and privacy rights asserted by the plaintiffs in that decision.
The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.
Personhood for the unborn, even under Roe, moots all competing legal and moral claims for abortion.
In many regards, Roe was never even a validation of bodily autonomy arguments. Roe specifically rejected the idea of an absolute right to abortion, and asserted at multiple paragraphs the state’s inherent interest in controlling and regulating abortion.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive.
Read in full, Roe has much more to say about State regulation than it does about a woman’s bodily autonomy as regards abortion.
Bodily Autonomy Is Real—And Under Real Challenge
Even though Roe itself was less centered on bodily autonomy issues than its prevailing mythos would suggest, its cancellation does present a particular challenge to arguments in favor of bodily autonomy, if only because they are once again thrust into the arena of public debate.
Moreover, bodily autonomy concerns extend far beyond the issue of abortion. Opposition to the many iterations of coercive inoculation mandates either proposed or enacted at various levels of government during the COVID-19 Pandemic in large measure leverage the same arguments used by the pro-choice advocates in the abortion debate; “my body, my choice” has often been repurposed by inoculation mandate opponents (including myself) to capture the moral imperative behind their opposition.
Yet this repurposing of rhetoric also highlights a particular moral challenge: absent superseding arguments such as personhood, we must be prepared to accept, however distasteful, the option of abortion if we are to have an ethically consistent framework of bodily autonomy. Stephanie Brail, in her excellent “Wholistic” Substack, concedes this exact point.
I think abortion is wrong, but I'm not in favor of banning it in part because I favor bodily autonomy and medical freedom (I'm against vaccine mandates).
For these reasons, it behooves us to consider what the law has already said on the subject of bodily autonomy. If abortion is no longer the preeminent defense in favor of bodily autonomy, what other legal arguments and principles might already apply in favor of the position?
Bodily Autonomy: A Definition
Before delving into cases and case law, we should first clarify what is meant by “bodily autonomy.”
Such a definition is important to establish, because the term itself is nowhere to be found within the body of the Roe ruling, nor are there any terms that might be synonymous with “bodily autonomy.” Thus we must be clear on what is meant by “bodily autonomy”, in order to explore the underlying legal principles that might have already been addressed by the courts under different language.
In a keynote address given earlier this spring during the 66th session of the Commission on the Status of Women, Dr. Natalia Kanem, Executive Director of the United Nations Population Fund (UNFPA), offered this definition of "bodily autonomy.”
Bodily autonomy means my body is for me; my body is my own. It’s about power, and it’s about agency. It’s about choice, and it’s about dignity.
John Letzing, Digital Editor for Strategic Intelligence for the World Economic Forum, uses a similar definition.
That may be particularly true in terms of bodily autonomy, or the power of women to make choices about their own bodies without facing coercion or violence.
Bodily autonomy, thus apprehended, truly is the realization of the mantra “my body, my choice” (or, as I have often expressed it in online debate, “My body, my choice; your body, your choice.”).
If we broaden the exploration for relevant case law to include defenses of a person’s right to choose—or refuse—medical treatments, we find a fairly rich legal history unfolds before us.
Bodily Autonomy Was Already Defended As A Right Before Roe
What may surprise many is that there is a substantial body of case law in favor of bodily autonomy that predates even Roe v Wade. As far back as 1891, in Union Pacific Railway Co. v Botsford, (141 U.S. 250 (1891)), the Supreme Court issued its ruling based on an assertion of a common law principle that reads very much like the above definitions for bodily autonomy.
No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law. As well said by Judge Cooley: "The right to one's person may be said to be a right of complete immunity; to be let alone.”
The issue in Union Pacific Railway Co. was the power of the courts to compel a party to a litigation to submit to a surgical examination in the presence of witnesses in order to substantiate certain claims of injury. The original trial court rejected the notion that it held such power and the Supreme Court affirmed this judgement, with language that leaves little room for doubt or prevarication upon the principle.
The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel anyone, and especially a woman, to lay bare the body or to submit it to the touch of a stranger without lawful authority is an indignity, an assault, and a trespass, and no order of process commanding such an exposure or submission was ever known to the common law in the administration of justice between individuals, except in a very small number of cases based upon special reasons, and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country.
In Griswold v Connecticut, (381 U.S. 479 (1965)), Justice William Douglas argued that the specific guarantees of rights within the Bill of Rights have “penumbras” which lead to articulations of other rights as fundamental to human liberty as the enumerated rights.
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Justice Douglas used this logic of a “zone of privacy” to establish the rights of married couples to access contraceptives.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a
"governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."
NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
A subsequent case, Eisenstadt v Baird, (405 U.S. 438 (1972)), would use similar privacy arguments and the Fourteenth Amendment’s equal protection clause to extend the right to acquire and use contraceptives to unmarried couples.
If, under Griswold, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that, in Griswold, the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
While Griswold and Eisenstadt ground their reasoning in Constitutional protections for privacy, the end result in favor of bodily autonomy is the same as in Union Pacific Railway Co.: People have the right to make their own choices regarding their bodies and their persons.
Additionally, there are several extant rulings which establish Constitutional protection for a patient’s right to refuse or discontinue medical treatments, even when the result of such refusal is patient death.
In 1976, in the ruling In Re Quinlan, (70 N.J. 10 (1976)), the New Jersey Supreme Court acknowledged that the right of privacy included the right to forego treatments necessary for the maintenance of biological and physiological life.
We have no hesitancy in deciding, in the instant diametrically opposite case, that no external compelling interest of the State could compel Karen to endure the unendurable, only to vegetate a few measurable months with no realistic possibility of returning to any semblance of cognitive or sapient life. We perceive no thread of logic distinguishing between such a choice on Karen's part and a similar choice which, under the evidence in this case, could be made by a competent patient terminally ill, riddled by cancer and suffering great pain; such a patient would not be resuscitated or put on a respirator in the example described by Dr. Korein, and a fortiori would not be kept against his will on a respirator.
In Re Quinlan also drew on the logic of another much earlier case from the New York Court of Appeals, Schloendorff v New York Hospital (211 N.Y. 125, (NY 1914)), in which noted jurist Benjamin Cardozo stated the case for bodily autonomy quite explicitly:
In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.
The logic in Quinlan and Schloendorff would be restated in the Supreme Court case Cruzan v. Director, Missouri Dep't of Health, (497 U.S. 261 (1990)), in which Chief Justice William Rehnquist acknowledged Constitutional protection for the right of a patient to refuse or discontinue lifesaving treatment:
But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.
Rehnquist would reiterate this same reasoning in Washington v Glucksberg, (521 U.S. 702 (1997)).
The logic of bodily autonomy has also been used to preclude State authority from inflicting injury upon the individual. In Skinner v. Oklahoma ex rel. Williamson, (316 U.S. 535 (1942)), Justice William Douglas held than an Oklahoma statute calling for the involuntary sterilization of “habitual” felons violated the Fourteenth Amendment’s equal protections clause:
But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.
As this lengthy enumeration of cases illustrates, the presumption of bodily autonomy was not a novel invention of Roe v Wade, but has been deeply embedded within America’s judicial consciousness for well over a century at least. While not stated explicitly within the Bill of Rights, bodily autonomy is surely among our most fundamental rights, and has been duly and repeatedly acknowledged as such by the courts.
Limits On Bodily Autonomy: Jacobson and Bell
While the courts have long upheld the broad principles of bodily autonomy, they have also observed discrete limits upon that right. In Glucksberg, for example, while the right of the individual to refuse treatment was upheld, that right was not extended to include a right to proactively end one’s life by suicide, or a right to seek physician assistance in committing suicide. Cruzan, while noting the presumed Constitutional permissibility of a patient in a persistent vegetative state choosing to discontinue life support measures, also concluded that Missouri’s rigorous requirements for clear and convincing evidence of the incompetent patient’s wishes in this regard was not a violation of that right, and acknowledged the state had a discernible interest in ensuring the incompetent patient’s guardian was in fact adhering to the patient’s own wishes.
Perhaps the most notable example of the legal limits on bodily autonomy is the case many have heard at least in passing with regards to COVID-19 inoculation mandates, Jacobson v Massachusetts, (197 U.S. 11 (1905)). While not invalidating the relevance of assertions of bodily autonomy, Jacobson nevertheless held that it lay within the general police power of a state to order mandatory smallpox vaccination as a means of controlling the spread of that disease.
The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best, and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
While the language here is unfortunately vague and circumspect, Justice Harlan’s opinion is not dismissive of bodily autonomy arguments per se, but rather asserts the primacy of state and local government’s compelling interests in preserving the health and safety of the community. Much as with assertions of personhood with regards to abortion, Jacobson asserts that the health and safety of a community comprises a superseding principle.
It should be noted that Jacobson relies heavily on the premise that vaccination against smallpox was and would still be today an effective mitigation against what must be acknowledged to be an highly contagious and highly dangerous disease, resulting in significant death and suffering. It is this consideration that Jacobson concluded permitted a state, through its general police power, to overrule the bodily autonomy and liberty interests of the individual wishing to decline vaccination while remaining within a community.
Since, then, vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because, in its or their opinion, that particular method was -- perhaps or possibly -- not the best either for children or adults.
Yet Jacobson does not wholly dismiss bodily autonomy either as a right or as a general concern of the individual. In his opinion’s closing, Justice Harlan noted that the health regulation was not an absolute requirement, irrespective of the health and bodily condition of the individual, and left the door open for challenge based on demonstrable harm or threat of harm to the individual arising from the regulation.
Until otherwise informed by the highest court of Massachusetts, we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death. No such case is here presented. It is the case of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease
The essential conclusion of Jacobson is thus that the community’s interest in mitigating the spread of a dangerous and contagious disease superseded the individual’s bodily autonomy at least to some degree. Whether the court got this right or wrong is an assessment I leave to you, the reader, to decide for yourself.
For the courts can, and in at least one instance, have, reached conclusions regarding bodily autonomy that, fully apprehended, are abhorrent and simply wrong. In the lamentable 1927 ruling Buck v Bell, (274 U.S. 200 (1927)), Justice Oliver Wendell Holmes asserted the interests of society and the State were best served by compulsory sexual sterilization of what it termed “feeble minded” individuals, and that the case of Carrie Buck was one such instance.
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.
Not only is Holmes’ execrable declaration that “three generations of imbeciles are enough” morally offensive in its own right, it is a vehicle by which he then summarily dismisses the notion that equal protection of the laws is even applicable to those who “sap the strength of the State.”.
But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course, so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.
It is a curious (and, I submit, wholly incorrect and inadequate) defense of Constitutional principles to suggest that the law need only say “I tried” to satisfy Constitutional mandates, yet that is all Holmes offered as justification for his conclusions in Buck. Moreover, as already discussed above, Skinner v Oklahoma unambiguously reasserts the primacy of the Fourteenth Amendment’s equal protections clause, thus providing a complete rejection of Holmes’ reasoning.
Indeed, the conclusion of Buck that the State may, on its own, decide who is and is not fit to procreate, arguably voids all notion of bodily autonomy. Anyone doubting the importance of bodily autonomy both as a moral principle and a Constitutional right should consider carefully the implications and the odious arrogance of Holmes’ casual assertion that “three generations of imbeciles are enough.”
“My Body, My Choice; Your Body, Your Choice”
How an individual apprehends his or her own rights of bodily autonomy, including the desired stance of the larger society regarding those rights, is inherently a moral proposition. It is that moral relevance that mandates pressing the case for bodily autonomy wherever it comes under challenge, and also scrutinizing any assertion of competing or superseding principles.
Fortunately, in large measure the courts have already considered the principles of choice underpinning common understandings of bodily autonomy, and, by and large, agreed with those principles. For over a century, the courts have repeatedly affirmed, through the general rights of privacy elucidated in the Bill of Rights as well as the liberty and equal protections clauses of the Fourteenth Amendment, that the general right of bodily autonomy not only exists, but is foundational and fundamental. Within the Constitutional order, we are not free unless we are free to choose what is to be done with regards to our bodies.
Even before Roe v Wade, and thus continuing even now that Roe has been overturned, the general assessment of the courts has been that people retain the full right to choose what happens to their bodies, with only a limited set of competing principles able to supersede that right.
As I have stated elsewhere, the defensible moral position is always “my body, my choice; your body, your choice. That defensible moral position is also the standard of the law, and has been for ages.
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