Well, as long as the mentally disabled person was subject to due process, wouldn’t that cover the 14th Amendment issue? That is, for each mentally disabled person where an abortion is warranted (according to the state), the case goes before a court before the abortion is carried out.
Pre-Dobbs, there was a right to privacy that overrode the states compelling interest in the fetus, right? Wouldn’t that right to privacy trump any state determination that an abortion should occur?
Perhaps. There has been a long-standing notion of a having a “liberty interest” with respect to compelled medical procedures. The idea that there would be an issue with the government compelling a medical procedure is fairly established. It’s been addressed with respect to sterilization, vaccination, blood draws for DUIs, removing bullets, stomach pumping, mandatory medical procedures (for prisoners), etc. Casey, in particular, purported to extend that right to include obtaining an abortion, and (to me) it’s an awkward fit. But your hypothetical fits squarely into those types of cases. And, I would hazard to guess that in some instances a state might be able to compel an abortion (just as it can sometimes compel other medical procedures), but that a blanket policy would be rejected as unconstitutional.
I may be the wrong person to answer to this because the logic of Roe and Casey never really made sense to me as an intellectual exercise. But I think I’m being fair saying that those cases held that a woman’s right to obtain an abortion trumped the state’s generalized interest in protecting “unborn life,” at least for certain period of gestation. But, whatever interest the state is asserting in seeking to compel an abortion is a different interest and I don’t know how it weighs against the (more traditionally established) right to be free from compelled medical procedures.
(If I remember the Nevada case correctly), I don’t think there’s anything in Roe or Casey that says that a judge can’t (after an individualized assessment) conclude that the risk of continued pregnancy to a mentally-incompetent woman is too great and, therefore, ordering an abortion against her wishes or the wishes of her guardians. But I don’t know, no one (on either side of the issue) actually treats abortion as regular medicine.
What do you consider “regular medicine” then? Because once a woman decides she no longer consents to carrying a fetus it essentially becomes a parasite. Treating that condition is very much medicine, as much as carrying the fetus to term.
This is the bodily autonomy and consent argument in a nutshell. Once consent is withdrawn then issues of personhood, gestation period, or heartbeat are irrelevant. A couple of examples:
If you consent to sex, but then withdraw consent midway through, any attempt by the other party to continue becomes rape. Even if the other person is soooo close to climaxing, once consent is withdrawn it’s no longer sex, it’s rape.
If you consent to giving blood or donating a kidney, but then decide at the last moment you no want to go through with it, you can NOT be forced to continue. Even if the recipient will die without that blood or kidney.
If there was a medical procedure where you are hooked directly to another person to provide sustenance (say oxygenated blood, platelets, electrolytes, whatever). If you decide after the procedure has started that you don’t want to do it anymore, you don’t have to do it anymore. Even if the recipient will die.
The crux of it is, nobody else gets to use your body without your consent. No putting something into your body, no taking something out. When SCOTUS says nobody has a right to an abortion, they’re giving fetuses the right to use someone else’s body without their consent. They effectively have MORE rights than other people.
That’s very shaky ground when in most other legal precedents unborn babies do not have the same rights. So if fetuses can be granted some special rights and not be granted others, with no consistency, it’s no small stretch that forced abortions would be any more abhorrent than forced pregnancy.
Forcing someone to remain pregnant against their will is not regular medicine. Having to worry about possible legal implications of a natural miscarriage is not regular medicine. Fearing that you may have to sacrifice your own life against your will to support the life of another is not regular medicine.
Your post talk a lot about abortion rights, and I’m hoping not to go down that path. I’m hoping to focus on forced abortions, and I’ve pulled out your edited quote because I think that’s a very important point. Post-Dobbs, fetuses (possibly soon to become “persons” in some states) do have the right to use your body and the right to force you to go through medical procedures (pregnancy and birth) without your consent.
What stops the state from doing the same?
I don’t know what you’re asking me. Your post seems to illustrate pretty clearly why I don’t believe that abortion is treated as regular medicine by people that advocate for abortion rights; it’s easy enough to imagine a similar post for the anti-abortion position.
If abortion were simply “regular medicine,” then the answer to the OP would be “probably yes, in some circumstances” and I don’t think it would be a controversial answer. Because it’s abortion, I still think the answer is “probably yes” (and I think the answer was “probably yes” before Dobbs), but it results in a different reaction (and perhaps a different result).
This is where we disagree. Post-Roe and before Dobbs, there was a recognized right to medical privacy (an emanation or penumbra, if you will) that overrode the government’s interest in the fetus. Dobbs eliminated that.
I would say that pre-Dobbs, if a state tried to pass a law mandating abortion, then the privacy protections implied in Roe v Wade would be used as precedent to invalidate it.
There are some who think that Dobbs made abortion illegal, or it upheld the life of a fetus, or something like that. Nothing could be further from the truth. Dobbs declared that a woman has no agency or privacy in her own reproductive choices, nothing more, nothing less.
If a state chooses to mandate sterilization or abortion, there is no longer any legal precedent to prevent that.
I haven’t done (and don’t have time to do) the research to know whether this was ever addressed. I spent a couple of minutes and found a number of cases on court-ordered c-sections and blood transfusions (and one case from Illinois where the appeals court quashed an order compelling an abortion).
But, Roe and, particularly, Casey talk about the state’s interest in protecting the fetus as compared against a woman’s right to terminate the pregnancy. Sure, there’s some language about the decision “whether or not” to continue the pregnancy, but it’s all in the context of the “or not.”
Which is only to say that ability of a court to compel a medical procedure is a well-traveled area and I don’t think Roe, Casey, or Dobbs changes it. How do you apply Roe in the situation where you have a mentally-incompetent pregnant woman and a dispute over whether the pregnancy is safe to continue? The state is asserting its right to protect the woman’s health. And she doesn’t have a privacy right in her decision – she lacks the competence to make the decision. Even in a extreme example like Buck, the state is asserting a different interest than its interest in protecting the fetus.
Yet.
If we define the power of the state to be whatever the Supreme Court defines it to be, then I think its pretty clear that if any state tried to pass a law mandating abortion, this court would rule against it, while turning itself into pretzels to claim that Dobbs still held. The Dobbs decision wasn’t really about the constitution it was about a personal ideological opposition to abortion among the conservative members of the court.
Well, yes, this SCOTUS would certainly rule against any claim that the state could force an abortion.
Are there any medical procedures which the state can force upon someone? The closest I can think are vaccinations, but even then you’re not forced to get one. Sure, the state can become corrupt and engage in anything it wants–like genocide–but I don’t really see how typical laws around abortion would mean someone would be forced to get one. I would suspect there are many procedures the state mandate upon their population first well before they got around to forced abortions. If the US gets around to forcing abortion, it’s not going to look like the US of today.
Yes. They can force you to give birth, for example.
Agreed. I’m just exploring the implications of the Dobbs decision.
I’m sure that what they would argue is that they aren’t forcing you to give birth, it’s your body that’s forcing that. They are just forcing you not to do anything to prevent it.
I’m sure you’re right. I’m not saying it’s a good argument, but I have no doubt some people would argue exactly that.
They have forced sterilizations, is that not a medical procedure?
Criminals are forced to undergo medical procedures, including execution. But it’s not just done for arbitrary reasons. It’s done because it’s directly related to their crime. Execution as punishment for their crime, and sterilization because the person’s sexual urges are a danger to society. Perhaps a criminal in jail could be ordered to have an abortion if it was as punishment for their crime or because being pregnant would make them too much of a danger to those around them. But this is for criminals who have lost many of their rights to their bodies.
(Is anyone actually forced to be sterilized? I was under the impression it was a choice for the prisoner in exchange for a lighter sentence.)
There was the case of Cassandra Callender, a teenager in Connecticut who was forced to undergo chemotherapy. (That case was discussed here.)
In that case, the court found that even though she was 17, she was not sufficiently mature to make her own medical choices, and her mother had been found unfit, so the guardian was the Connecticut Dept of Children and Families.
Being jailed by definition strips the inmate of some subset of their rights, so I’m not sure that’s particularly relevant.
That may be, but in no way is execution a medical procedure, and any physician who participated in killing someone would lose their certification and get kicked out of all professional organizations at the very least.
IIRC the forced hysterectomies of detainees in Georgia in 2020 were investigated as probably unethical if not blatantly illegal. I don’t remember what the committee concluded, however.
OK, leaving aside criminals and other people who are wards of the state, what is to stop the state from concluding that, based on your drug use, your criminal record, fetus deformities, or whatever, they want to force you to have an abortion? Let’s assume that they do the review, and have it blessed by a judge that you would be unfit for parenthood or that the fetus is too deformed or whatever – assume due process was involved, whatever that would be.
What’s the check on the state’s power to force an abortion? It seems like the Georgia situation is pretty on point.