Body Autonomy Is Protected By The Constitution

The government cannot force you to save someone else’s life against your will, not even the life of a baby

Most discussions about abortion and choice center around whether or not a fetus is a full human being with the same or greater level of rights as an actual woman. When exactly a fertilized egg becomes a true “person” is a philosophical question that has a lot of nuances and no truly definitive answer. It very much depends on who you ask. Is it the moment of conception? When a heartbeat is first detectable? When the fetus can live on its own outside the womb? Reasonable people might well disagree.

But these are not the questions that should or likely ultimately will end up informing our laws. Existing precedents around body autonomy are infinitely more important. There are no other instances in American law where the rights of one person supersede the body autonomy of someone else. The government cannot force you to give blood or bone marrow to someone else, even to save the life of a baby. You cannot take organs from a dead person without their express prior consent, no matter how many lives it might save to do so.

The fact that a corpse has more rights than a live woman in some places is an ironic twist on the term “pro-life!”

Body autonomy is a critical component of the right to privacy protected by the Constitution, as decided in Griswold v. Connecticut (1965), McFall v. Shimp (1978), and of course Roe v. Wade (1973). Griswold struck down “Comstock laws” which prohibited the use of any form of contraception, citing its interference in “marital privacy.”

Although the Bill of Rights does not explicitly mention “privacy”, Justice William O. Douglas wrote for the majority that the right was to be found in the “penumbras” and “emanations” of other constitutional protections, such as the self-incrimination clause of the Fifth Amendment. Douglas wrote, “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.” Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment in support of the Supreme Court’s ruling. Justice Byron White and Justice John Marshall Harlan II wrote concurring opinions in which they argued that privacy is protected by the due process clause of the Fourteenth Amendment.

McFall v. Shimp is a case in which someone was being coerced to give bone marrow against their will in order to save someone else’s life. “When the case ended up in court, Judge John P. Flaherty Jr. stated that Shimp’s position was “morally indefensible,” but simultaneously refused to force Shimp to donate his bone marrow.[3] Judge Flaherty also stated that forcing a person to submit to an intrusion of his body in order to donate bone marrow “would defeat the sanctity of the individual and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.” (emphasis mine)

The Supreme Court has decided that competent adults have the right to refuse medical treatment if they so wish; that consenting adults have the right to engage in whatever sexual practices they wish; and that under the due process clause of the 14th amendment women may terminate their pregnancies before such time as the fetus is viable outside the womb.

Because American law is based in precedent, and there have been no actual changes in circumstances related to the spate of new abortion restriction laws, it is quite possible that these laws will be struck down in the Federal courts and never even granted a hearing by the Supreme Court. People who are prone to scream about activist judges would do well to consider that it would take significant judicial activism and disregard for precedent in order to reverse the sheer volume of decisions that affirm the body autonomy of American citizens.

Edit: Unfortunately, since this piece was first written in 2019, it has become apparent that there are courts, including the Supreme Court, that are more than happy to disregard legal precedent and engage in partisan judicial activism.

© Copyright Elle Beau 2019 Elle Beau writes on Medium about sex, life, relationships, society, anthropology, spirituality, and love.