Alice Wanamaker, '25 Winter 2024

PDF available with citations and footnotes here

If a criticism of Supreme Court jurisprudence exists, it has probably been applied to Roe v. Wade. “Breathtaking” and unforeseen, both an “expansive exercise in judicial philosophizing” and “too legal” at times, the judicial approach taken in Roe to declare abortion somewhat immune from state sanctions has received critiques diverse enough to become contradictory. Yet beyond the particular assertiveness of the issue it addresses, Roe fits squarely within the Warren and Burger Courts’ assertive precedent. Roe is said to legislate from the judiciary, prescribing state policy in its field; Miranda v. Arizona did so even more egregiously, explicitly rewriting state penal codes heavily enough that every police officer in the United States can now quote specific wording from the Miranda decision. Roe jumps before debate in state legislatures over shifting abortion policy, as noted by eventual Justice Ginsburg. In the same year, Frontiero v. Richardson, establishing a suspect class for gender discrimination, was decided in the midst of state debate over ratification of the Equal Rights Amendment, as Justice Powell’s concurrence in Frontiero notes—and Ginsburg argued before the Court in Frontiero for a heightened scrutiny standard to be applied to women. Roe may be composed of “moral philosophy… scarcely camouflaged by scraps of legal reasoning cluttering up the opinion;” the recognition of women as a suspect class in Frontiero and Craig v. Boren reads in large part as academic text on sexism. All of these critiques are reasonable; they define a powerful and confident Court willing to make far-reaching, frequently controversial decisions. The key is that all of them define the Warren and Burger Courts overall, rather than the Court’s approach to abortion alone. Roe’s greatest procedural distinction instead comes from the opposite direction: an unprecedented degree of timidity and an unwillingness to declare the actual implications of its actions in the Court’s approach to defining life.

This article explores the consequences of the Court’s determination that identifying abortion as a fundamental liberty interest required defining the point at which a state interest in protecting fetal life becomes “compelling.” As detailed in Part I, both Roe and the following Planned Parenthood v. Casey made it legally wrong to find certain balances between bodily autonomy and the preservation of potential life persuasive, leading to a seismic level of ideological tension. Part II explores how much of this tension remains within existing abortion jurisprudence in the wake of Dobbs v. Jackson Women’s Health Center, and what new tensions are created by the Dobbs decision. Part III, returning to a broader analysis of the Warren Court, argues that jurisprudence from that era legitimizes the project of finding a constitutional justification for societally necessary rights, rather than identifying a right solely because it is constitutionally justified. Finally, Part IV proposes an alternate doctrine to protect the right to abortion — justified through a well-established right to bodily autonomy — which avoids Roe’s issues while preserving its beneficial impacts. 

The Problems with Roe and Casey

Over the last few years, it has felt progressively less relevant to talk about varying degrees of polarization in today’s United States. It is hard to even imagine having a political debate that is not transformed into a black-and-white question of morals. At the same time, not all emotional disagreements are created equal. Sometimes, people disagree about the relative weight of competing values that all would agree are involved in an issue, and sometimes people disagree over what competing issues are at play in the first place. As conceptualized in Roe (a qualification that will be explored later), debate over the right to abortion falls into the latter category. There are moral opinions to be taken up or rejected at the core of the issue. Abortion had been generally understood to put two fundamental interests into tension with each other; as such, per Roe, the state “has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life.” But whether this ‘potentiality’ actually constitutes a human dying is at issue, and means that the moral calculus is different for those on different sides. 

As described by David Barnhizer in his study of the relationships between abortion debates and different types of truth, “The advocates basing their positions on religious truths ‘know’ when life begins… Those who favor a woman’s power to terminate a pregnancy ‘know’ that a fetus is little more than a piece of meat with blood flowing through it, at least until the pregnancy is well along.” If you believe abortion destroys a human life to the same degree that killing a person would, then a right to abortion means balancing one individual’s life with another’s liberty. If you believe a fetal or ‘potential’ life is something less than an existing life, the right to abortion only requires determining whether the bodily autonomy of those who can bear children is a fundamental liberty interest. These are two very different conversations, and answering the question of which conversation we are having, a process that comes before weighing the rights involved, means asking one party to set aside a highly charged fact that they know to be true and right. 

Roe takes a stance on this question, although its language deemphasizes its doing so. “With respect to the State's important and legitimate interest in potential life,” it declares, “the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.” This reasoning functions on the conceit, sourced from the text of the Fourteenth Amendment’s Due Process Clause, that both an interest in life and an interest in liberty are ‘compelling,’ deserving of legal protection, if they are found to exist. But according to the Roe trimester framework, two rights are being weighed against each other at the point of viability, and not before. In the eyes of the law, an observer is wrong—factually wrong—to believe a life is being destroyed by an abortion that occurs before the point of viability, or to believe no life is imperiled by a post-viability abortion. Pro-life activists are not wrong in feeling that the decision in Roe answers that “difficult question” in the opposite way than they would prefer to. It does, and it does so in a reasonable and tempered way, and it does so by claiming “We need not resolve the difficult question of when life begins” and thus denying taking any perspective at all. Pro-choice activists are also forced to accept a liberty interest they care deeply about being put into tension with a pressure they may believe does not exist. This is a fundamentally different disagreement than simply feeling one or the other issue is relatively more important. Dissatisfaction with Roe’s framework takes on a particularly immovable tint as it extends down to the question of what issues are extant within the debate.

Casey also answers this question. In replacing Roe’s trimester framework with the simpler, more ambiguous “undue burden” standard, it also replaced Roe’s ruling that the number of rights in question moved from one to two during a pregnancy. Instead, according to the Casey plurality, “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Abortion is no longer at any point a simple question of liberty, and there is no room to see it as such, even if “a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.” But the justification for this change is sourced from Roe’s viability finding: 

Although subsequent maternal health care advances allow for later abortions safe to the pregnant woman, and post-Roe neonatal care developments have advanced viability to a point somewhat earlier, these facts go only to the scheme of time limits on the realization of competing interests…The soundness or unsoundness of that constitutional judgment in no sense turns on when viability occurs. Whenever it may occur, its attainment will continue to serve as the critical fact.

Casey makes significant efforts to present itself as a procedural redefinition of Roe, but its changes are substantive. While the interest in liberty is protected more strongly than the interest in life pre-viability, liberty can be burdened for the sake of life so long as it is burdened with sufficient care, because life undoubtedly exists to be protected. 

Notably, Casey also reveals that abortion rules sourced from the reasoning in Roe are vulnerable to scientific advancements and societal changes of opinion over time. As described by Jonathan English, “in a fact- and time-sensitive move, the Court left open the possibility that if a sufficient consensus about the beginning of human life emerged, the parameters of abortion rights would have to shift with this consensus to protect human life in the womb.” It was this reliance on shifting societal understandings that allowed Casey to justify throwing out the Roe framework using Roe’s reasoning: viability had come to mean something different in the almost-two-decades following Roe’s passage. In his 2019 study, English surveyed the current state of societal opinions on and legal definitions of the beginning of life, and came to the conclusion that “we are failing in our fidelity to Roe” per the reasoning it asks us to use. The societal uncertainty over fetal personhood cited to justify abortion as a single-issue right before viability in 1973 has, per English, been replaced with “significant and increasing agreement that (protectable) human life and dignity begins early in human development.” English suggests that, following this line of analysis, Roe’s reasoning could be used today to justify the absence of a protected right to abortion. If the line of abortion protections established in Roe can be used to promote both the presence and the absence of abortion protections, it begins to look extraordinarily unreliable.

This is a particularly chilling shift from a pro-life perspective because of the degree of effort that has been put into changing this societal understanding on a national scale. Summarizing the rhetorical efforts of the American pro-life movement for the Organization of American Historians, Jennifer Holland notes that pro-life activists following Roe actively “moved fetal bodies squarely into American political culture,” where they had not previously been. Conceptualizing fundamental rights as at least partially dependent on societal conceptions is nothing new. In particular, Obergefell v. Hodges, in extending the long-established right to marriage to same-sex couples, attempted to provide a roadmap for how fundamental rights could expand over time: “New insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” But the key word here is expand. It is almost unheard of to imagine that our society simply does not need or want a right it previously asked for. When fundamental rights are overturned, that decision is generally justified by stating that the identification of the right was “egregiously wrong from the start,” not that the right has inherently become less fundamental. A right with a built-in mechanism to shrink should societal opinion turn against it is a vulnerable right indeed. 

Where Does Dobbs Leave Us?

The greatest piece of evidence that the federal right to abortion is vulnerable is, of course, the fact that it no longer exists. Roe and Casey are overturned; as of November 2023, per the online abortion resource site abortionfinder.org, 14 states completely ban abortion, while 28 states restrict it based on stage of pregnancy. But the overturning of Roe and Casey does not end the project of legal decision-making around abortion; it just shifts that work towards a different conclusion. So where does Dobbs v. Jackson leave us? Is the Dobbs Court as much in the business of defining the existence of life as the Roe Court was? On the legal-definitional level discussed above in Roe, this section finds that Dobbs is in fact more ambiguous, allowing for more disagreement than Roe and Casey do. But fundamental rights are not purely textual: they are practical protections for the structures of peoples’ lives. At this pragmatic level, the relationship between Dobbs and varying definitions of life becomes much less welcoming.

In its justification for overturning Roe and Casey, Dobbs’s language is heavily critical on those cases’ failure to recognize a pre-viability interest in life. Sometimes, the issue is framed as a failure to allow states to recognize a pre-viability life interest if they so choose: “according to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation's legal traditions authorizes the Court to adopt that ‘theory of life.’” But in other places, the majority instead suggests that both Roe and Casey failed to recognize a pre-viability life interest that undoubtedly exists. In attempting to reassure readers that Dobbs does not call other pregnancy and sex-related case law, such as Griswold v. Connecticut and Eisenstadt v. Baird, into question, the majority noted that “what sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’” By this line of reasoning, Roe and Casey simply picked the wrong contested definition. And by this line of reasoning, Dobbs in no way removes itself from the business of defining life. 

Cynthia Soohoo notes hypocrisy in this statement: “Justice Alito writes that his opinion “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” Yet, Justice Alito’s decision includes a discussion about when “personhood” begins, illustrating how Personhood claims have become part of legal discussions without making critical distinctions about how the term is being used or the broader implications of claiming wholesale Personhood for the zygote-embryo-fetus.” While Soohoo and I disagree somewhat on our interpretation of the reasoning in Roe and Casey, we agree that it is difficult to read Dobbs as neutral on the issue of fetal personhood. It certainly does not actively differentiate between critiquing Roe and Casey for choosing the wrong theory of life and critiquing Roe and Casey for choosing a theory of life at all: “The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence [v. Texas], and Obergefell does not destroy a "potential life," but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a "potential life" as a matter of any significance.” 

The language of Dobbs lends substantial credence to a particular definition of life. But while it seems an exaggeration for the Court to have claimed that “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,” it is true that the states under Dobbs are free to accept or reject Roe and Casey’s views. No definition of life is ‘wrong’ at the state level any longer. But it would be premature to say that Dobbs simply ushered in a culture of definitional freedom with regards to abortion. There are other significant implications to be considered. 

Some researchers have suggested that in conjunction with the Roberts Court’s interpretation of the First Amendment’s Free Exercise Clause, Dobbs will facilitate religious preferentialism in terms of what exemptions to abortion laws are and are not granted. “In the abortion context,” Micah Schwartzman and Richard Schragger predict, “those who demand exemptions to advance their belief that life begins at conception will receive them, while those who demand exemptions to protect their belief that life begins later, or that the health and life of pregnant people are of paramount importance, will not. In this way, free exercise exemption doctrine serves as an instrument of religious preferentialism.” Schwartzman and Schragger anticipate the Court offering religious exemptions for individuals or businesses who do not wish to support the availability of abortion services, but not requiring that abortion be available to those whose religions mandate that abortion be available. If their predictions prove true, which seems likely given the jurisprudential history they trace, then only certain definitions of life will be seen as a valid basis for a free exercise claim. This is an active way in which the conceptions of life cited in the Dobbs majority opinion could be prioritized. 

The strongest critiques of the Dobbs decision relate to the misinterpretation of the liberty interest in question and its degree of societal importance. The Dobbs majority lambasted the Court in Roe for having “either ignored or misstated [the] history” of criminalizing abortion in the United States, while simultaneously cherry-picking metrics of gender equality to suggest that women are no longer in need of affirmative protections of their liberty. As Michelle Goodwin summarizes, “the Court hypothesized that “[w]omen are not without electoral or political power,” referencing demographic population data in Mississippi (that women represent 51 percent of the state’s population), while ignoring that men constitute 86 percent of that state’s legislature, and within that body, women wield marginal leadership and comparatively little power. Only three of the nearly fifty House committees, which are appointed by the Speaker, “are chaired by women,” which may contribute to Mississippi’s relatively neglectful leadership response to alarming rates of infant mortality, maternal mortal, and maternal morbidity.” Particularly in the state in which Dobbs took place, it is a flat misinterpretation of the historical record to suggest that gendered political equality is a finished project. Goodwin also points out the health risks posed by pregnancy as a potential and ignored impetus for an interest in liberty, or even an interest in life: “Confoundingly, the majority cabins discussion of maternal mortality to one paragraph related to 1973 rather than 2022, even though maternal deaths in the United States exceed that of all industrialized nations, earning it the moniker of the deadliest nation in the “developed world” to give birth.” 

Justice Alito’s opinion offers two counterarguments to these points: the facile quantitative analysis ‘proving’ that life and liberty concerns for those who can become pregnant no longer need to be addressed (if they ever did), and an unprecedented shrinking of the legal concept of reliance interests. The former is refuted by both a more accurate reading of the actual current status of women and the body of research on the probable effects of restricting abortion rights: “Researchers have estimated that a total [abortion] ban could increase pregnancy related deaths by 21% overall and by 33% for black women, as childbirth is markedly more dangerous than legal abortion in the US.” The latter is refuted by Alito himself in other cases. Dobbs rejected the “intangible” reliance interests of womens’ liberty cited in Casey, stating that “Casey’s notion of reliance… finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in “cases involving property and contract rights.” But in Janus v. AFSCME, a 2018 case overturning Abood v. Detroit Board of Education and an Illinois state law allowing public employers to compel the payment of union fees, Alito came to precisely the opposite conclusion. There, his majority opinion “protected a different form of intangible reliance —that of citizens relying upon the protection of their free speech rights— over purely economic arrangements struck in reliance upon Supreme Court precedent.” So by this standard, citizens may cite reliance on the future availability of their fundamental rights — unless those rights concern reproductive liberty. The definition of reliance established in Dobbs is an anomaly, but it is an anomaly with dangerous implications were it to be generally adopted, because intangible reliance is the standard type of reliance in individual rights cases. Thus, “Dobbs's limitation of reliance interests will significantly weaken precedents that protect individual rights, subjecting them to more ready overrule in the future.”

It is also critical to pause our textual analysis and recognize that there are multiple, simultaneous definitional projects inherent in the right to abortion. There is the definition of life imposed by a federal case, and then there are the definitions of life the states are thus empowered to use, and then there are the definitions of life individuals are thus empowered to use. The key here is that if a right to abortion is available, individuals are empowered to decide for themselves that to exercise that right would be to end a life, or that it would not, and act accordingly either way. If abortion is illegal, on the other hand, individuals who believe abortion is not morally problematic are prevented from acting in the way their belief suggests is appropriate. Abortion restrictions take the responsibility of defining life out of the hands of individuals and into the hands of the lawmakers. Thus, “by denying constitutional protection for abortion and leaving it to states to define legally meaningful life or Personhood, Dobbs empowers the state to impose its theory of life and Personhood on individual pregnant people.” Even though the text of Dobbs prescribes a particular definition of life substantially less than the text of Roe did, it is Dobbs that leaves drastically more room for the imposition of definitions on individuals by states. 

Does Dobbs impose a particular definition of life? Textually, the answer is no, but this is not a textual question. The absence of constitutional protections for a right to abortion provides an incredibly strong legal resource to those interests hoping to force individuals to abide by a definition of life they might disagree with, and erroneously rejects the reasons why an abortion ban is a physiologically terrifying thought for many. Regardless of one’s opinion on Dobbs’s legal reasoning, the dissent in Dobbs is correct in their dystopian predictions of the case’s impacts:

“As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State's assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today's majority holds, provide no shield, despite its guarantees of liberty and equality for all.”

As cited by Barnhizer, “Roe is a social force and a clumsy philosophical tract that nonetheless freed women to enter the mainstream of American life.” A discussion of Dobbs ignores this fact at the nation’s peril.

Where Do Fundamental Rights (Actually) Come From?

So Roe is poorly argued and Dobbs is dangerously decided. Now that we’ve gotten somewhere appropriately bleak and confusing, it’s time to go somewhere else entirely — to think about the right to abortion, where it belongs, and how it could potentially be justified without tying those questions to the way the Supreme Court has answered them in the past. This is an important project because of the problems with defining life for others described above. It is also important because, particularly when situated within the jurisprudence of the Warren Court, the establishment of a right to abortion is a procedural outlier only because of the way it interacts with definitions of life. 

Roe is a case about a controversial issue not mentioned in the Constitution. Its conclusion was legally justified, reasonable, and consistent with the judicial project of the time, but concluding in the opposite direction and deferring to states could have found compelling legal precedent as well: in Jacobson v. Massachusetts’ affirmation of state authority to protect public health or San Antonio Independent School District v. Rodriguez’s narrowing of federal authority to edit state statutes barring a truly egregious due process violation, for example. That being said, the “project” of Roe — taking a pro-choice stance on abortion from within a constitutional framework — is logically congruent with precedent of the era. A clear thread building to Roe can be found running through the Warren and Burger Courts’ jurisprudence around reproductive liberty and womens’ rights. Griswold v. Connecticut provides the precise understanding of constitutional provisions used in the Roe decision; Eisenstadt v. Baird bridges Griswold and Roe by separating reproductive rights from the institution of marriage and allowing the former to stand on their own bottom. Simultaneously, Reed v. Reed, Frontiero v. Richardson, Craig v. Boren, and a string of other decisions validated the view that female autonomy and liberty were concepts to be protected and furthered through legislation, either by striking down discriminatory legislation or upholding differentiations which “corrected” historical sexism. “Plainly the right of a couple to decide whether or not to prevent the birth of a child by abortion falls within the class of interests involving marriage, procreation and child rearing which the Court has considered "fundamental" in Meyer [v. Nebraska], Pierce [v. Society of Sisters], Prince [v. Massachusetts], Skinner [v. Oklahoma], Griswold, Loving [v. Virginia], Boddie [v. Connecticut] and Eisenstadt.” 

Within this landscape, an additional decision upholding reproductive liberty through both a privacy and women’s rights lens makes a great deal of logical sense. And the methods used to identify rights to contraception and abortion in Roe and Griswold are much less contentious in and of themselves than those used for less controversial rights like marriage in Loving and interstate travel in Shapiro v. Thompson. Both of the latter cases simply declare their respective rights fundamental, citing the existence of historical tradition and precedent but no specific case or clause. In contrast, the declarations of rights present in Griswold and Roe take an almost defensively academic posture, putting a great deal of effort into finding constitutional sources for their declared rights. Yet it is Roe which is called a “because-we-said-so policy pronouncement,” not the cases in which the Court exclusively “says so”. This calls into question critiques of decisions like Roe phrased as if they are concerned with case methodology rather than case conclusion.

The distinction between the abortion question and the controversies the Court found more palatable was that by taking a stance on a fetus’s interest in life, the Court disagreed with the Christian right’s answer to the question. The Warren Court’s placing itself in conflict with the religious right was not unheard of, but its other decisions on the subject state that religious beliefs cannot be mandated in society at large. Roe states that a religious belief is constitutionally incorrect — that the Court disagrees with a popular, deeply held Christian theory. No other jurisprudence from this era includes substantive judicial analysis of specific religious beliefs, besides the face designation of “deeply held religious convictions.” The justices in Roe did not restrict behavior supporting the conviction in order to protect the separation of church and state. They declared that according to the Constitution, a religious definition of life was “not compelling” and had to be replaced in state law by the Court’s definition of life as beginning fully at viability. This was a new relational structure between the Court and religious dogma, and it made the Court uncomfortable enough to deny that the new structure existed at all. 

At its core, Roe is what conservative critics say it is — a moral imposition of pro-choice ideals requiring a considerable step away from originalism to be justified. However, that step is taken within a family of legal work using the same procedural guideposts and methods but absent the same vehement popular reaction. When one attempts to separate Roe from the precedent surrounding it, all they are left with is the concept of abortion and the religiously-tinged definition of life which allows or forbids it. Overall, though, Roe is a demonstration of the Court’s comfort and fluidity with conscripting the Constitution into service of women’s reproductive and general liberties at this time — except for the uncomfortable project of defining life in a way significant numbers of people, especially religious groups, would disagree with. This begs the question: Did the Court have to define when life begins to establish a right to abortion? Along with Soohoo, I argue that “the Dobbs decision unnecessarily adopts a binary view of prenatal life, suggesting that the only option for courts and legislatures is to recognize Prenatal Personhood or deny protection for prenatal life.” There is an alternate method of justifying the right to abortion that is both a stronger protection of the right and more consistent with past precedent than the approach Roe took. We reach this understanding by viewing abortion as a continuation of the right to bodily autonomy.

A New Home For Abortion

Protections for bodily autonomy exist within many areas of constitutional law. The most familiar in regards to abortion is the expansion of the implied right to privacy to the home and the body via the penumbra theory used in Griswold v. Connecticut. Other bodily autonomy protections exist in regards to searches of suspects by law enforcement officers, as in Rochin v. California, where a conviction was overturned because the methods used to search the suspect were so extreme and invasive as to violate the Fourteenth Amendment’s Due Process Clause; and Cruzan v. Director, Missouri Dept. of Health, which held that individuals have a fundamental right to refuse lifesaving hydration and nutrition — that a person cannot be forced to undergo even minimally invasive medical treatments that would keep them alive. 

Under a bodily autonomy framework, the right to abortion would be justified as follows: an individual may not be forced to undergo the physically invasive experience of pregnancy and childbirth if they do not wish to do so. They may not be forced regardless of the manner in which they became pregnant, and they may not be forced even though their refusal means a fetus will not be born. This framework removes the confusion around definitions of life that Roe introduced, because the calculus does not change based on what definition of life is used. In the ‘strongest’ case, the acknowledgement of full fetal personhood, the right simply depends on the fact that an individual cannot be forced to undergo a highly invasive medical experience to save another person’s life — a claim that is highly congruent with past precedent on when medical treatment may be forced upon someone. 

Like all rights, bodily autonomy is not absolute. In certain circumstances, individuals can be forced to undergo unwanted medical procedures and accept unwanted invasions of their bodies. Vaccination mandates, for example, are constitutional under certain circumstances, as are physical searches of suspected criminals. But the circumstances in which this right may be curtailed are few — “the law traditionally has strongly disfavored compelling bodily intrusions on persons without their consent” — and abortion would not fit within the established pattern of exceptions. In both of the above cases, a minimally invasive forced medical procedure was deemed necessary to protect a large segment of society. Exceptions occur under these conditions, and occasionally when applied to populations whose rights are substantially legally curtailed, particularly prisoners. 

Exceptions do not occur when a highly invasive procedure is required to preserve the life of a single other person; in fact, the Court has been abundantly clear that "that the constitution does not forbid the states minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions."' Certain death for the individual in need of a donation has been found insufficient to overrule the right to bodily autonomy, as seen in the Pennsylvania circuit case McFall v. Shimp. There, it was found that Shimp could not be coerced into giving a blood transfusion, a minimally invasive procedure with virtually no risks involved, despite the fact that it would save the life of his cousin. For those who believe a fetus to be a person, a pregnant person choosing not to keep their fetus alive is a tragedy. But it is a tragedy allowed by law in cases where the lives of all persons involved are completely unambiguous. Thus, “compelled treatment cannot plausibly be justified by the need to save the fetus' life; we do not legally compel others to save the lives of live-born persons, even when the action required is much less physically burdensome or invasive.”

It would be a drastic break from precedent to rule that one individual can be compelled to sacrifice their body for the sake of any other individual, born or not; thus, “to force a woman to gestate forces her into a state of bodily intrusion that we have never required of any nonpregnant person.” The health risks posed by pregnancy and childbirth also increase the very high, sex-segregated burden forced childbearing confers: “Restrictive state abortion laws require women, and only women, to endure government-mandated physical intrusions significantly more substantial than those the Court has held to violate the constitutional principle of bodily integrity. By imposing mandatory childbearing, the government itself creates significant risk of physical harm.” While it has been found that legal differentiation between pregnant and non-pregnant people does not generally constitute sex discrimination, the division becomes more insidious once one recognizes how uncontroversial it is that an individual’s body may not be conscripted into the service of a non-fetal life; “In effect, pro-life advocates are not saying that fetuses have the same rights as born persons, but, rather, that they be given more rights than born persons currently possess.” The arguable difference in the case of pregnancy is that the pregnant person was involved in creating the fetus and thus holds some sort of responsibility towards it. But this argument does not hold up. 

Pregnancy is in many cases not voluntary and not intentional. Sex is a part of most adults’ lives, and for many carries a risk of pregnancy that cannot be entirely mitigated without drastic medical intervention; it would be highly problematic to suggest that half of the world’s population gives up their right to bodily autonomy simply by not practicing abstinence for their entire lives. Additionally, pregnancy is not the only case in which the individual refusing to sacrifice their body could be ‘responsible’ for the other individual’s dependence on that sacrifice. “Although a woman may have assumed the risk of her pregnancy by having sex, as a rule, our society does not compel individuals to sacrifice their bodily integrity even in cases where they are causally responsible for the physical harm of others. If we do not compel a reckless driver to supply organs or even blood to the victims he has injured… surely we cannot compel pregnant women to sacrifice their bodies to a fetus.” By having sex or becoming pregnant, a person did not cause harm to a fetus, which is the scenario under which the fetus could potentially be owed any sort of restitution. But even if the fetus were owed something —a proposition with considerable connotations of victim-blaming— what they are owed stops far short of an active imposition on another individual’s body. “To force a woman to gestate forces her into a state of bodily intrusion that we have never required of any nonpregnant person.”

The protection of abortion found in this line of reasoning is substantially stronger than that once identified in Roe, because it does not depend on a societal definition of life and is not weighing two rights against each other. The debate between medical compulsion and an interest in life has already been concluded in other circles of law; there is no need to reargue it here, so the right to abortion does not need to be seen as in constant tension with a competing interest. Nor does defining the right this way disrespect the profound nature of the moral issues in question, because responsibility and the preservation of life are both addressed within the established standards. As Barnhizer notes, “it is… disingenuous to act as if we do not frequently accept “death tradeoffs” in society without becoming incensed and dogmatic about what occurs and seeking to impose our will on others.” Seen through this lens, a right to abortion is not vulnerable to shifting views on life, and does not make any legal judgements on the relative merits of different definitions of life. If an individual believes they owe something to a potential life, they may act accordingly. But no one’s beliefs, and no one’s behavior, are legally wrong.

Conclusion

Bodily autonomy arguments have been a predominant rhetorical strategy for those advocating for abortion rights since before Roe was decided. They have less commonly centered within legal debate, which is a shame, because bodily autonomy precedent is both a compelling source of tradition and a clear tool to define the scope of the right. Without those resources, legal debates around abortion floundered in the decades after Roe, enmired in definitions of life and struggling to balance two competing interests when an answer to that balance was waiting in the bodily autonomy field. Post-Dobbs, these technicalities continue to define the debate on the state level where it has moved. As Monica Hesse summarized in a column for the Washington Post, the current jurisprudential field is “Quibbling over terminology, hairsplitting the medicine and trying to litigate when life begins, a question that science and spirituality haven’t even begun to sort out. We’re in the weeds. We need to get out of the weeds.” The bodily autonomy framework brings a profound degree of clarity to the abortion standard. In comparison to the convoluted debate of the past fifty years, it is a breath of fresh air.

The Warren Court’s project, including Roe, was finding legal justifications for rights and doctrines that would advance equality and liberty. It ended with constitutional text, but it did not start with it. This project was egalitarian, pragmatic, and principled. The rights it identified remain among our most deeply valued today. The legal controversy surrounding Roe shows how procedural weakness devolves this project, and the aftermath of Dobbs demonstrates the necessity of finding the legal standard that best protects reproductive liberty, rather than allowing abortion rights to be weakened by a moral debate that is not mandated by the question at issue. “The position of women must be protected, even while the interests of the overall political community deserve better consideration than has occurred to this point.” While federal abortion protections are currently nonexistent, advocacy on the issue is far from over, and pro-choice activists will need to be armed and prepared when their arena opens again. The bodily autonomy avenue provides an opportunity to relitigate the right to abortion while avoiding the ambiguities and conflicts with religious definitions of life that plagued previous standards. It is a powerful resource for the future.