abortion
Why aren’t anti-abortion laws unconstitutional since they force women to carry a pregnancy against their will?
<p>If we are afforded the right to self-determination as well as protection against the actions of others that may threaten bodily integrity, wouldn’t it be unconstitutional for the state, by denying access to abortion, to force a woman to carry an unwanted pregnancy against their will and without their consent?</p>

<p>The problem is that the Constitution does not provide a freestanding right to &quot;self-determination,&quot; to self-defense, or to bodily integrity. To the extent the courts recognize any of these as <em>implied</em> rights, they are subject to balancing against other rights or governmental authority.</p>
<p>Analogizing to the Second Amendment can be helpful. There's a lot of gray area in Second Amendment law, but it's pretty clear that I have a right to keep a knife on my bedstand, but not to build a nuclear arsenal in your backyard.</p>
<p>Why not? Because you have a right to keep people off your property, and because the government has an interest in protecting its citizens, infrastructure, and natural resources from the risks associated with my incompetent exercise of my Second Amendment rights.</p>
<p>So what interests are at stake in the abortion question? <a href="https://casetext.com/case/roe-v-wade" rel="noreferrer"><em>Roe</em></a> held that women have a right to privacy that protects access to abortion, but it also recognized that the government has an interest in protecting potential life. The question was how to balance the privacy interest against the interest in protecting potential life.</p>
<p><em>Roe</em> said the woman's rights generally outweigh the government's interests up until the point of viability, at which point the government's interests begin to outweigh the woman's privacy interests. But <a href="https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf" rel="noreferrer"><em>Dobbs</em></a> appears poised to change that by saying that the woman's right to privacy does not exist at all. <em>Dobbs</em> likewise rejects the idea that the right to due process or any other constitutional right protects the right to abortion. Therefore, it concludes, a woman has no rights that can outweigh the state's interest in protecting the potential life she is carrying.</p>
<p><em>Dobbs</em> also recognizes -- but does not take a position on -- the argument that a fetus is actually a person itself. If a legislature were to adopt that position, and the courts were to accept it, we would find ourselves in a position where whatever rights a woman has to self-determination and bodily integrity would have to be balanced against the fetus's rights to self-determination and bodily integrity.</p>
