Under the new abortion regime in the US where it’s up to the States to decide on the legality of abortion, does that also grant the State the right to force an abortion?
My understanding is that the States have an interest in the life of the fetus or something, and so can regulate or ban abortion. If the State decided that the fetus is too deformed or the parents are terrible (or incarcerated, or undocumented immigrants, or whatever), could a state pass a law giving it that power, say after some due process hearing?
Perhaps they will one day soon allow the abortion of children concieved by libtards for the good of the white race. Don’t tell me they haven’t thought of this in the back of their minds while they are speaking of dening abortions for incest, rape and the health of the mother.
I’ve said it before: Most Republicans, or at least most of the elected officials in the party, aren’t pro-life, they’re anti-choice. They don’t care whether a woman has an abortion or not, just so long as she’s not the one who chooses. And they would be just as happy to mandate abortions as to prohibit them, if that were politically feasible.
Perhaps relevant, the United States has a history of forced sterilizations, with as many of 70,000 Americans being forcibly sterilized by states during the early 20th century. In an 8-1 ruling in 1927, the Supreme Court found forced sterilizations to be Constitutionally permissible in Buck v Bell. That precedent has never been explicitly overturned or refuted by the Court.
@flurb, thanks. That would seem to argue that it might be within a state’s power to force an abortion (leaving aside that the current SCOTUS would never find that to be the case).
Any other legal history or precedent that could shed light on the subject?
If I understand the relatively recent SCOTUS ruling correctly, it’s that the Constitution does not guarantee the right to an abortion. It does follow from that premise that the States can make abortion illegal; but it does not follow from that premise that the States can force abortion.
I’m not saying for sure that they wouldn’t or couldn’t ever try to do so, just that it is IMHO a separate legal question.
Right, but abortion rights were considered part of a right to privacy that overrode the state’s interest in the fetus. Dobbs removed that implied right to privacy and bodily autonomy.
Without that implied right, what protection is there against forced abortion?
Right. IMHO, ianal if states can force women to bear a child, they can force women to have an abortion.
It would have to be a narrowly tailored exception.
What would have to be a narrowly tailored exception?
Historically, going mostly by the list on Wikipedia, forced sterilization laws were enacted in the U.S. in 1907 in Indiana, and in California and Washington in 1909. But these were always controversial, and in some states failed to pass. OTOH some of them evidently did pass.
There are some more recent cases mentioned there: a man who had to get a vasectomy as part of a plea deal in 2014, and forced hysterectomies in Georgia in 2020, among others.
A mandatory abortion. Even then it might fail constitutional muster.
Based on what, though? Looks like forced sterilization was OK, and some other forced medical procedures.
Mental defective or minor mother with a probably unviable child who or whose guardian i insist on carrying it to term?
So, if they can force abortions in those cases, what stops them from forcing it for, say, all fetuses with chromosomal anomalies or all minors? What is the limit on state power?
I’m not saying a law would be passed in today’s environment – the abortion-rights states already give a pregnant person bodily autonomy to some extent and the abortion-banned states are obviously not interested in forced abortions.
I’m asking, in light of Dobbs and a diminished right to bodily integrity or personal privacy, what limits the states powers on this?
You are looking at it wrong.
It is and has been a crime to kill or to cause the destruction of the unborn. Abortion rights are an exception. Ie destroying the unborn would be a crime unless <parameters of a legal abortion>… What Roe did was bar States from failing to provide a certain minimum threshhold of the bolded. All Dobbs has done is end that bar. What Dobbs is not precedent for, is having a legally mandated destruction of the unborn.
ETA: I didn’t say they could force it, I said that might be a case where they might be able to. The relevant precedents here would not be abortion based, but on forced medical procedures.
Please provide a cite for this. I understand that abortions started becoming illegal in the 1880s, but before that, it was perfectly legal in the US.
ETA: Here’s one cite.
Seems to me such a law would run afoul of the fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A state forcibly aborting a foetus falls pretty clearly under a “seizure”, at least to my way of thinking.
You mean, the fetus being the property seized? I mean, I could make a 4th Amendment case forbidding banning abortion because they are seizing a woman’s body and forcing it to have a kid, but no one would agree with me.
Presumably, the answer would be the due process clause of the 14th Amendment.
In some (anti-abortion) states, there has been an effort to pass laws suggesting that the “unborn person” itself has some rights. And such state law provisions would obviously come into play in your scenario. But in states that elect to treat abortion as regular healthcare, I would imagine that (theoretically) it would get treated as such.
Jacobson v. Massachusetts and Buck v. Bell are read generally for the proposition that the state can compel certain medical procedures in certain instances. But those decisions recognized that the state law implicated the “liberty” right under the due process clause and that there needed to be balancing of the individual’s liberty against the state’s interest (as is generally the case for restraints on liberty). And the Court concluded that the state’s interest in compulsory vaccination or preventing the “manifestly unfit from continuing their kind” outweighed the personal liberty interest.
I’m not sure that it’s obviously that, pre-Dobbs, a state couldn’t force an abortion. Although, I’m not aware of the law on it. I recall a case from about 10 years ago (in Nevada, I think) where a court was going to consider ordering an abortion be performed on a mentally-disabled woman following a dispute between her medical providers and her guardians over the safety of the pregnancy. But, I think the court ultimately declined to order it. I don’t know whether we thought it had the power to. But in similar such situations? I strikes me as plausible that a court would have that power (as least in jurisdictions that don’t recognize the fetus as having rights).
If, on the other hand, you’re imagining a revival of the Buck approach and some state law mandating the abortion of all pregnancies in the mentally disabled, I would strongly suspect that it would be viewed as running afoul of the 14th amendment and that we would immediately discard Buck.