No, it has many other purposes; various public services, dealing with disasters, supporting things in the public interest, and key to this discussion protecting people.
This thread hinges on the claim that government has no obligation to protect its citizens, and if a state wants to systematically persecute and kill women, the women should be allowed no recourse, no help and no escape. I do have to wonder if the same “pro-democracy” position would hold if it was a matter of commanding that all males be castrated, instead.
No. The Ninth Amendment tells us how to construe the Constitution. It applies to the whole Constitution, not just the first ten amendments. It does not prevent states from disparaging rights unenumerated in the federal Constitution. It does not even prevent the federal government from disparaging rights unenumerated in the federal Constitution. It only tells us not to construe the enumeration of some rights to deny or disparage others retained by the people.
Imagine it’s 1789 and I am a federal tax collector. The federal government authorized me to collect a 0.5% tax on your property, “by any means necessary,” in the state of, say, Massachusetts. I walk up to your house, you greet me, and I demand you pay your taxes. You refuse. I decide to beat you up and forcibly take the money from your wallet. You sue me for battery (the legal cause of action for a violation of bodily autonomy). I say, “your honor, when the people of Massachusetts ratified the Constitution, they consented to federal taxes. As an agent of the sovereign federal government I was entitled to collect that money by ‘any means necessary’, per the Act of Congress. Insofar as the plaintiff relies on an ancient right to bodily autonomy, that right ceased to exist when it was omitted from the limitations on federal power in Article I, section 9. Expressio unius est exclusio alterius. (a standard principle of interpretation: that which is not listed is presumed excluded.)”
The Ninth Amendment prohibits this kind of sophistry. It does not–on its own–enlarge the federal judiciary power; in fact, it was originally going to be added verbatim to Article I, section 9 (along with other restrictions on the legislative power). Today, everyone agrees that Congress has only limited legislative powers, but this was not apparent when the Constitution was actually ratified.
I think your interpretation would definitely allow that kind of disparagement – democracy decided that taxes will be collected by any means necessary, as voted on by the representatives of the People, and beating someone and taking their wallet is one such means. Since the disparagement is essentially a dead letter as long as there was a proper vote, then I don’t see how your interpretation would avoid exactly that consequence.
So, could a state require circumcision? Force healthy people to give up a kidney to those in need? Force abortion of fetuses with disabilities?
In 1789, my interpretation would allow that kind of disparagement. In 1791, we amended the Constitution with, for example, the Fourth, Fifth, Ninth, and Tenth Amendments. And the Fourteenth Amendment in 1868.
I hope you will forgive me if I don’t give broad answers to your questions. Whether a state can require circumcisions, kidney procurement, or abortions depends on why and how. “Can” is a legal question. We have strong legal protections which may or may not come into play depending on the details. These are all violations of bodily autonomy, in my opinion, and so morally suspect. I would presume it’s not okay. But some violations of bodily autonomy are not only legal, but moral: for example, military drafts or childhood vaccination.
It sounds like you’d say those aren’t allowed, since you presume it’s not OK. That is, democracy be damned, you’re not taking my kidney. I don’t see the distinction between that and forcing a pregnant person to carry a fetus to term.
And, does any state mandate childhood vaccination? Or, is that only required if you’re going to send the kid to a public school?
The draft is specifically allowed in the constitution (raise and support armies), so it’s not relevant to this conversation.
That’s not what I said. I would presume it’s not okay for the state to take my kidney because that is so far out there that it demands a more detailed explanation. It’s not clear to me whether or not the state’s action is legal. It probably isn’t but I wouldn’t know without details. It probably isn’t moral, either.
I distinguish between “forcing” doctors to stop providing abortions and “forcing” women to carry a fetus to term. Only the latter violates bodily autonomy with physical compulsion, and though not a practical distinction, it is an important one in my mind.
All 50 states mandate childhood vaccination for children attending public or private schools. States vary as to the exceptions. A minority of states require childhood vaccination for homeschooled children, but only three or four actually verify in that instance. It is well accepted that states can legally require all children, or even all residents, be vaccinated.
So, do you think the laws banning abortion that target the pregnant person are unconstitutional?
The kidney example seems to be exactly the same as abortion laws that target the pregnant person to me. I don’t see what’s so far out there – it’s the government essentially controlling your body, taking away your bodily autonomy.
Well, literally forcing them to carry a fetus to term would be something like shackling a women to a bed in the Prenatal Protective Custody Ward. If you only care about the outcome than it’s a distinction without a difference, but I take it that @Max_S begs to differ.
Cite a law, and I’ll tell you. I don’t think bodily autonomy is a (federal) constitutional right, I think it is a human right. Human rights aren’t necessarily protected by the Constitution, but we already knew that. I also take the realist position that law is independent of morality; even when the Constitution is evil (e.g. slavery), it is still the law.
Thinking about this further, is it fair to say you think abortion bans are unconstitutional, but bans on abortion care are allowed?
I would argue that a state ban that effectively makes a right moot should also be unconstitutional. For example, a law banning printing presses 150 years ago should run afoul of the 1st.
I concur that the law as applied is unconstitutional. I would rely on the Privileges or Immunity clause, and specifically the privilege granted by the comity clause. The question for me has nothing to do with bodily autonomy. It is whether state A can charge the defendant for conspiring in state A to perform X in state B, where X is legal in B but illegal if performed in A. My primary rationale would be that every citizen has a right to do X in state B by virtue of the comity clause, and state A cannot deprive that right by prohibiting travel to state B for purposes to do X. Otherwise, a state could (in theory) extinguish the federal privilege granted by the comity clause entirely. Judge Kavanaugh’s concurrence in Dobbs partially supports my argument.
Secondarily, the State has very limited extraterritorial jurisdiction. “A conspiracy in this country to do acts in another jurisdiction does not draw to itself those acts and make them unlawful, if they are permitted by the local law.” American Banana Co. v. United Fruit Co., 213 U.S. 347, 359 (1909). “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect.” Strassheim v. Daily, 221 U.S. 280, 285 (1911). The general rule is that a conspiracy to perform a lawful act in another jurisdiction is itself lawful, unless the act leads to detrimental effects within the original jurisdiction. And I doubt Alabama can point to detrimental effects comparable to the fraud perpetrated in Strassheim, where Michigan stood to lose $10,000. Alabama has an interest in the life of the unborn child, but that interest stops at its borders, and the other state’s sovereign interest takes over.
Unborn child is a religious statement, which I would say is not allowed by the 1st. That is, claiming that Alabama has an interest in the unborn child implicates the 1st amendment, and Jewish groups have sued on that basis.
You are free to disagree with me, but the law of Alabama claims an interest in the “unborn child”, Ala. Const. art. I§ 36.06 (2022), and the Supreme Court has repeatedly recognized such interests. There are tests to determine whether First Amendment considerations (actually Fourteenth Amendment considerations–a history and traditions test) outweigh the State’s interest, but courts do recognize the interest in the first instance.
ETA: On the related topic of how I think the establishment clause bears on the intersection of religion and public policy, see this thread from 2019:
The people can’t pass an unconstitutional law that violates the 1st. That’s off topic, but jeez.
By using the term unborn child, you’re assuming the consequent. I agree that this SCOTUS agrees with you, but we’re talking about whether that’s right. For a long time, SCOTUS didn’t agree with you and they said that abortion laws, at least for the first trimester, were unconstitutional.
I might misunderstand you. Are you saying there is no unborn child for the state to claim a right to? That’s just a matter of terminology. The state is claiming an interest, and the state’s interest carries some legal weight, whatever you call it. It just happens that state law refers to the object of their interest as a child. I’m not admitting that is correct or not. I wouldn’t call it a child unless the mother does, personally.
Separate question, whether the state by calling it a child violates the establishment clause. I firmly believe it does not.
Separate question, whether the state by claiming that interest violates the establishment clause. I firmly believe it does not. The Hyde amendment lawsuit controls.
Separate question, whether the state by intervening to protect its claimed interest violates the woman’s free exercise of religion (distinguished from the establishment clause). This one is probably a no from me, but I would need more details. I think this is what the Jewish group’s lawsuit is about… something about the need to destroy IVF embryos, if I recall correctly. The test is from the peyote case, if the law is neutral and generally applicable, it doesn’t violate the individual right to free exercise of religion.
Ahh yes, states like Alabama claim an interest in the “unborn child” but when a pregnant mother needs any kind of state funded public assistance that interest vanishes like a fart in the wind.