Introduction

Autonomy, while lacking a consistent definition in the legal literature, and seldom scribed into positive law, appears to be central to the debate of abortion and other medical practices. The term is commonly understood as “the quality or state of being self-governing.” But a philosophical reading warrants the concept of autonomy greater merit. Immanuel Kant conceives autonomy as the way in which “the maxims of [one’s] choice are incorporated as universal law in the same volition.” This conceptualization supplements the dictionary’s by declaring that one’s actions form a standard, and thereby those actions must obey the established standard. Kant’s definition undoubtedly echoes the jurisprudential arguments with respect to ethically controversial medical procedures, since the rules that govern the right to these practices are scrutinized for the sake of the autonomy of the subjects involved. Although readers should be wary of a pragmatic interpretation of Kant’s autonomy, his ontological work should serve as the framework for the following legal analysis.

Despite vesting the ability to make one’s own decisions regarding one’s self, the explicit right to autonomy has not been conferred by the Constitution nor inferred by the Court’s interpretation of the Fourteenth Amendment. Citizens of the United States have had to rely on an implicit understanding of “liberty,” as engraved in the Due Process Clause, for the unenumerated right to interracial marriage, same-sex intercourse, same-sex marriage, privacy, and contraception. And until the end of the Supreme Court’s prior term, the unenumerated right to abortion. That is, these protections have been afforded to individuals through a direct analysis of “liberty” or through an indirect reading of Substantive Due Process and other facets of “liberty.”
In light of Dobbs, this note postulates that the legal protection of “liberty” has become diluted and opaque, for it no longer carries its former legal potency while also posing new questions to the Court. In turn, the distance is now further between an individual’s autonomy and integrity, and those unalienable rights deemed “fundamental” through the Fourteenth Amendment. Notwithstanding the civil significance of personal rights, this paper then qualifies the extent of bodily autonomy to that of which the State minimally requires in governing society. Lastly, through a synthesis of the jurisprudence surrounding different medical practices, I draw the fine line between these two competing interests and extrapolate the potential consequences of this threshold.

Personal Autonomy in the Era of Roe

Nearly two centuries after the founding of the nation, and more than a century after the ratification of the Fourteenth Amendment, Roe set the constitutional framework for a woman’s right to bodily autonomy. In the 1973 watershed case, Jane Roe challenged a Texas state law that outlawed abortion barring the need to save the woman’s life. Scholars classify Roe as “watershed” since it settled the debate on abortion amongst the district courts through a maneuver towards the juridical past: it prohibited State laws that were all but absent under British common law yet appeared in the United States only after the mid-nineteenth century. However, in Justice Blackmun’s majority opinion, the Court not once delineates the right to abortion with the descriptor of “autonomy”; rather, the Court believes that the right is wholly included in “the right of privacy… founded in the Fourteenth Amendment’s concept of personal liberty.” Privacy, not unlike this note’s treatment of autonomy and integrity, is not expressly ordained in the Constitution, yet it is derived from the penumbra of the Bill of Rights.

Thereafter the Court’s assertion of privacy, Justice Harry Blackmun draws two parallel lines between access to abortion and “compelling” state interests. One is drawn at the first trimester, with “respect to the State's important andlegitimate interest in the health of the mother,” in which “from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” The second is drawn at viability, the point at which the fetus is able to survive outside of the womb, with “respect to the State's important and legitimate interest in potential life.” After this point, a State “may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”

A deduction prima facie reveals that the Court in Roe struck a balance between the State’s interests in the different individuals at stake. Most consequentially, however, it can be concluded that the line between the protection of one individual’s bodily autonomy and another’s preservation of potential life hinges on the former’s right to privacy.That is, this equation of competing yet intertwined interests between individuals, as well as the State, is balanced by the autonomous choice of the childbearing individual.

Advance to 1992 and the Supreme Court revisits the aforementioned parallel lines; it reaffirms the sill of viability yet rejects its counterpart trimester system. The Court justifies the reconstruction of this secondary threshold by enumerating flaws in the trimester framework: “it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe.” The secondary threshold, confronting the boundary of government regulation, is henceforth replaced by the undue burden test. The intended guiding principles that emerge from this formulation permit “regulations which do no more than create a structural mechanism by which the State[…] may express profound respect for the life of the unborn.”  The Justices’ language inferentially foregrounds personal autonomy and bodily integrity before the State’s burden to comply with regulatory principles.

With respect to Roe’s viability line, Casey makes it unwaveringly clear that “viability is the most central principle of Roe v. Wade.” The plurality reinforces this threshold as “a rule of law” while simultaneously reintroducing it as “a component of liberty” in which the Court “cannot renounce.” In the longue durée of constitutional theory behind autonomy, this marks a shift in the lens from privacy to liberty itself. As cited in the majority opinion:

“This 'liberty' is not a series of isolated points[…] It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.”

This definition of substantive liberty is not confined to the textual bounds of the Bill of Rights nor is it limited by the original meaning of the Constitution. It is intentionally predicated as an unspecified, unenumerated “continuum” as to avoid “restraints” from the historical specificity of the language’s drafting. Finally, as noted, liberty places the burden of strict scrutiny on the State to prove compliance to its implied freedoms.

In wake of Casey, the Justices’ own verbiage reflects that “Roe may be seen not only as an exemplar of Griswold liberty but as a rule… of personal autonomy and bodily integrity.”

The Post-Roe Understanding and Implications of Liberty

Enter Dobbs, the marked beginning of an era in which abortion rights “implicit in the concept of ordered liberty” must be “deeply rooted in this Nation’s history and tradition.” The lines are redrawn once more in a manner that seems to skew our sense of liberty. Justice Samuel Alito tightens the rein surrounding the scope of the Fourteenth Amendment, as the burden that once fell on the State is now bore by the individual to prove that one’s autonomy aligns with the Court’s conception of “ordered liberty.” The Court relieves itself to the extent of judicial activism by replacing the strict scrutiny standard of reviewing abortion law with rational-basis.

In conjunction with one another, this concoction of legal moves substantially opens a void of power in between government interests and autonomy. Pre-viability abortion, a principle of bodily autonomy, is no longer protected as a fundamental liberty. On the state level, the threshold between competing interests is returned to the representative power of the vote, as it existed prior to Roe. On the federal level, the boundary of constitutional regulation of abortion is open to the subjectivity of the judiciary, as it, too, existed before Roe. In both fields, the line governing one’s self-control becomes a product of politics - via state representatives and the federal appointment process - rather than a hard-and-fast rule.

One additional line emerges in the Court’s Post-Roe understanding of liberty. Justice Alito claims that the “decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests,” yet the Court concurrently believes that “abortion is fundamentally different[...] because it destroys what those decisions called ‘fetal life.’” Here lies a logical contradiction: the Court initially claims that its reasoning is devoid of the supposition of “prenatal life,” but then proceeds to criticize prior decisions regarding “fetal life.” This track of reasoning implores a clear declaration of the line of life, but returning to Justice Blackmun’s opinion, the judiciary should be reluctant “to resolve the difficult question of when life begins” since “those trained in the respective disciplines of medicine, philosophy, and theology [have been] unable to arrive at any consensus.” Hence, the divide between preserved, unenumerated privileges and the right to abortion quite questionably and paradoxically settles on the Court’s evasion of defining life.

Despite concessions that the legal privilege of abortion is not “deeply rooted” in Anglo-American precedent, advocates argue that bodily autonomy is an innate dimension of not only liberty, but also life. Furthermore, due to the ebb and flow of prejudice, these facets of liberty and life are not always recognized and inscribed into law at the time of drafting. It is both tempting and dangerous to lock the meaning of substantive due process into its original context because “history makes [it] clear that constitutional principles of equality, like constitutional principles of liberty, property, and due process, evolve over time.” If we apply this jurisprudence to the constitutional development of women in America, we will see that as the socio-economic role of women changed, with the passage of substantive laws, it has become more and more difficult to juxtapose the current stature of autonomy rights with constitutional interpretations from a time when women were constrained to bear a lesser place in society. That is,philosophers may propose that the right to bodily integrity has been ever present and fundamental since the beginning of time; it merely has not been unveiled by an ignorant society.

The Scope of Bodily Integrity in Further Medical Fields

This note has observed the counterarguments that give weight to the State in constitutionally exercising limits on the practice of abortion. Now, it will turn its focus to alternative medical practices, analyzing the reasoning behind holdings in favor of the polar interests between individual and State.

This section will commence with a scrutinization of the Court’s opinion in Glucksberg (as well as its citing decision in Obergefell) on the right to physician assisted-suicide. The majority in Obergefell, in which same-sex marriage became a constitutionally recognized and fundamental right, concedes: “Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices.”However, Justice Anthony Kennedy ultimately declines to apply this treatment of liberty. His discussion of fundamental rights in Obergefell is guided in an alternative direction by a hypothetical: “if rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” Obergefell’s logic, that identifies the cumbersomeness in the paradox of circumscribing liberty to historical periods, directly aligns with this note’s warnings in the preceding section.

If we juxtapose the Glucksberg citation in Obergefell to that in Dobbs, Justice Alito muddies the definition of liberty with a phrase derived from Glucksberg’s adaptation of verbiage from previous cases. The parent case examines whether a fundamental right is “deeply rooted in this Nation’s history and tradition” to test if that form of liberty is protected by the Due Process Clause. Significance lies in the factual context of Glucksberg that warrants attention to the due process test. The Court found that Washington state’s ban on physician-assisted suicide was not in violation of the Due Process Clause. This case grapples with an “unqualified interest in the preservation of human life,” as opposed to the qualified State interests within each individual in the abortion theatre, as well as the social realization of a historically marginalized group. Moreover, Justice William Rehnquist expresses concern for the State’s interest in upholding the integrity of the medical sector as well as for the protection of disadvantaged groups. In this unique instance, the State has demonstrated a compelling interest in restricting personal autonomy when the individual’s own bodily integrity is at risk.

Another medically justified State interest resides in the presently relevant arena of vaccine mandates. In the landmark case Jacobson v. Massachusetts, the Court reiterated the “fundamental principle that ‘persons and property aresubjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State.’” Through this ideology, Justice John Harlan limits substantive liberty only to “freedom from restraint underconditions essential to the equal enjoyment of the same right by others.” The State’s compelling interest in upholding a vaccine mandate begins where the unviolated health and prosperity of its constituents ends. To the same end, anindividual’s unviolated right to bodily autonomy ends when that same right in society - to a collective integrity - is threatened, especially by the nature of a contagious disease.

One final battle of the interest in liberty can be found in the mature minor doctrine in Smith v. Seibly. In determining whether a minor could be legally emancipated and consent to irreversible medical procedures, the Supreme Court of Washington considered the factors of “age, intelligence, maturity, training, experience, economic independence or lack thereof, general conduct as an adult and freedom from the control of parents.” The State of Washington weighs these factors against its interest in preserving the integrity of the minor through a curtailment of autonomy. The entirely separate field of emancipation law is not of value to this note; rather, the specific judicial procedure of analyzing and balancing interest factors on a case-by-case basis, chiefly when irreversible medical change is at stake, should be duly noted and considered as a potential standard in other arenas.

The Prevailing Threshold and a Hypothetical Standard of Application

In synthetical summation, the current verge in the social contract, between individuals’ personal autonomy and bodily integrity, and their respective States, is a product of the subsequent factors: precedent and tradition, the discretion of the judiciary, the vote of the people, the definition of life, the preservation of active life, the protection of the individual beyond its own comprehension, the equal protection of liberty throughout society, and as stated at the conclusion of the previous section, an indefinite amount of factors specific to the circumstances. These constitutional functions have shaped a plethora of lines, and yet the judiciary continues to redraw them with fluctuations in interpretation, science, and social progress. This is undeniably a non-exhaustive list of the forces at play in the American judicial spheres pertaining to the privilege of bodily autonomy.
  

Nonetheless, it is clear that the judiciary has addressed these powers independently over the span of a century. This note concludes by proposing an amalgamation of these separate yet equally significant factors. If jurists view legal history and tradition through the scope of equal protection of common liberties, and if they frame their jurisprudence in the ideology of an indefinitely changing society, then the outcome would be a selective test of precedent (when considering the Due Process Clause) that is only applied under the scrutiny of the remaining forces. And as the standard suggests, it would warrant a further reading of the Equal Protection Clause. Moreover, under this hypothetical standard, juridical reasoning would be devoid of any supposition regarding the beginning of life in exchange for emphasis on current individuals in necessity of State regulation. Although this proposal does not solve the question of discretionary powers, in theory, it provides a system of checks and balances across multiple interest thresholds, and ultimately gives preeminence to the facts of the case and an evaluation of the state of society when the test of precedent cannot be applied.

1          Andrew J. Boyd, Medical Marijuana and Personal Autonomy, 37 J. Marshall L. Rev. 1253, 1278 (2004).

2          Autonomy, Merriam Webster Dictionary.

3          Immanuel Kant, Groundwork for the Metaphysic of Morals 37 (2017).

4          Loving v. Virginia, 388 U.S. 1 (1967).

5          Lawrence v. Texas, 539 U.S. 558 (2003).

6          Obergefell v. Hodges, 576 U.S. 644 (2015).

7          Griswold v. Connecticut, 381 U.S. 479 (1965).

8          Id.

9          Cf. Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).

10        Slaughter-House Five: Views of the Case, 55 Hastings L.J. 333, 1st paragraph; Randy E. Barnett, Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021); CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866).

11        The timing noted here is an important dimension of debate when considering the original meaning of the Fourteenth Amendment. I analyze the significance in the subsequent section.

12        Deborah Machalow, Religious Diversity and a Woman's Right to Choose: The Religious Right's Mistakenly Assumed Monopoly on Belief and Religious Support for Abortion, 22 Rutgers J. Law & Relig. 476 (2022).

13        Roe v. Wade, 410 U.S. 113, 178 (1973).

14        Id. at 168.

15        Id. at 153.

16        Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969); Sherbert v. Verner, 374 U.S. 398, 406 (1963).

17        Roe, 410 U.S. 113, 163.

18        Id.

19        Id.

20        Id. at 164.

21        Planned Parenthood v. Casey, 505 U.S. 833, 873 (1992).

22        Id. at 877.

23        Id. at 871.

24        Id.

25        Poe v. Ullman, 367 U.S. 497, 543 (1961).

26        Again, this note will look at the dangers of locking interpretations of liberty into historical specificity. See supra footnote 11.

27        Casey, 505 U.S. 833, 857.

28        Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

29        Dobbs, 142 S. Ct. 2228, Section VI.

 36        See generally Sex, Suffrage, and State Constitutional Law: Women's Legal Right to Hold Public Office, 33 Yale J.L. & Feminism 110.

37        See generally Agents of (Incremental) Change: From Myra Bradwell to Hillary Clinton, 9 Nev. L.J. 580.

38        Obergefell, 576 U.S. 644, 671.

39        Id.

40        In exercising caution against falling into a bottomless pit of seeking juristic origins and etymology, this section narrows in on the utilization of the phrase within the medical sector through the case at hand. See Moore v. East Cleveland, 431 U.S. 494(1977) at 503; Snyder v. Massachusetts, 291 U.S. 97 (1934) at 105; and Palko v. Connecticut, 302 U.S. 319 (1937) at  325.

 41        Washington, 521 U.S. 702, 721.

42        Cruzan, 497 U.S. at 282.

43        Washington, 521 U.S. 702, 731.

44        Jacobson v. Massachusetts, 197 U.S. 11 (1905) at 26; Railroad Co. v. Husen, 95 U.S. 465, 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U.S. 613, 628, 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont, 140, 148.

45        Id. at 27.

46        Smith v. Seibly, 72 Wn.2d 16 (1967).