This was fabulous, Rebecca. I appreciate the thoughts (as I often do when you and Feministing's other resident lawyers have wonked out in comments).

I agree to an extent regarding your concern over the so-called right to privacy as a weak Supreme Court basis for abortion rights.

Actually, I'm surprised you mention that pro-lifers argue "the right to privacy doesn't trump the right to life"; in my experience, they (okay, so I'm mostly thinking of my conservative family members here, Dad included) argue that the Constitution guarantees no right to privacy and say that right doesn't even exist.

I'd love to hear more on your thoughts about the right to bodily integrity as more innately defensible than one to privacy. And could you point me to some statutes or opinions?

Thanks for that, legal-nerd language and all. :)

I think you are my new hero. :) I agree with everything you have said here, and you have said it more articulately than I could have at this point.

I am a wanna-be law student [hopefully for real in 2009!], and have always thought similarly about Roe arguments. A lot of anti-choice advocates seem to lack any sort of legal comprehension of both what Roe actually did, and what it being overturned would mean. They don't get an automatic, universal win just because the SCOTUS is now dominated and conservatives or so-called moderates. Thankfully, it's not that simple for them.

The right to privacy is not exactly the most solid foundation in the world for an important decision such as Roe, and I understand where you are coming from when you say that the right to life should trump the right to privacy. I, too, agree in theory, although I wouldn't define fetuses as yet having the former right. However, branches of the government and government services are ALREADY classifying embryos and fetuses as having that right, and it doesn't matter one bit what I think about it, since I am not [yet? :)] making the rules. I think a stronger decision would be awesome, such as the right to women's bodies argument you mentioned in your post. Like everybodyever, I would love any more information you have about this possibility, and relevant precedent and caselaw.

This might be legal ignorance on my part, but I am not necessarily sure how forcing a woman to use a bodily organ [uterus] without her consent to support the life of another person. Even if I cede the anti-choice people the possibility of defining an embryo or fetus as a person, which I am not so intent on doing, can they still force the woman to use her own organs to support that person's life? In a hypothetical where only my kidney as compatible with someone who needed a kidney transplant, I am pretty sure no court could order me to give up my kidney to save the other person's life? These are just my possibly legally-uninformed musings, so please be gentle if I am totally off-base.

Rebecca, I really hope you keep blogging, because I am excited to read what you have to say!

everybodyever: I'm flattered to be called a lawyer! I'm a geeky high-schooler getting excited about AP Gov/Politics.

True, a large part of pro-lifers don't support the right to privacy at all. I should have been clearer - among those who do agree with it to begin with and support Griswold.

I'd say that at least in a legislative sense bodily integrity is more defensible - the waiting list for organ donation is really long, but the deceased aren't required to give up organs because there's this idea of the sanctity of the body. For the same reason, no one is legally compelled to donate blood or marrow, although it is replaceable and even if they are the only match for a person who will otherwise die. I can't find any SCOTUS cases on it, but I'd be interested in seeing the outcome of one.

(The law is usually that an expressed desire of the deceased not to donate is final, and it's the family's decision if the deceased has not stated their wishes and sometimes if they did desire to donate. New York has just taken steps to prevent the family from interfering with an expressed desire to donate, though.)

If you use the analogy of property rights (via the Fourth Amendment, if you like, the right to be secure in persons/houses/etc.) then you have the right to evict someone from your home even if they will die, say, if someone is outside waiting to shoot them. (For the record, "liberty" at the time of the Founding Fathers generally referred to property rights.)

LlesbianLlama: Yeah, Roe is kind of the demon, isn't it? It was interesting to find out recently that it was almost Doe v. Bolton instead.

Even if embryos are defined as persons, they do not have the legal right to a woman's body. See my comments to everybodyever, above - born persons do not have certain rights over others, and redefining embryos as people will not automatically give them "special" rights.

Personally I see a lot of ways a new abortion case could get to the Supreme Court - 4th Amendment, 14th Amendment, 13th Amendment (one I'd really, really like to see argued).

I'm very excited to be blogging here. I had a mathy post about illegalizing abortion, but the system ate it.

(Article on abortion and the Thirteenth Amendment.)

Hi Rebecca-

I always thought a Fourteenth Amendment argument would hold up the most strongly. It at least would hinge on rights that are a bit less contested. I remember being SO MAD in my Civil Liberties class upon hearing the extent to which the right to privacy isn't actually all that concrete, and thinking what a crappy premise it was for such an important decision. Blah.

While the 13th Amendment approach would be interesting [I loved the article!], I have a difficult time believing the current court would bat an eye at it before shutting it down. I think the best approach with the Robert's Court is slow and steady, with arguments that are not too complex, but difficult to refute using simple but accurate parallels. I think the 14th Amendment could do that. I also think there are some great parallels to be made between coerced use of a uterus and coerced organ/blood donation. I am not sure of the caselaw on that; I've actually never had to argue it with someone who is legally knowledgeable before, so haven't ironed out any specifics. I've found it's VERY effective at getting people to shut up for a moment and think about what I am saying.

I don't think a 13th Amendment case would get far either - there don't seem to be many cases based on it nowadays. One can hope, though! (Or not.)

The problem with the organ donation parallel would be that it's common sense but there's no precedent caselaw, at least at any significant level. No laws prohibiting the harvesting of organs from non-consenting people have ever been contested. I think an argument using the organ donation parallel would probably fall under the 4th Amendment, though.

Use of the 14th is a little sketchy because to some degree the difference in treatment is necessarily based in biology. While you can say that men aren't forced to bear children they do not want, other people say that that's because men, for the most part, don't get pregnant. (Pregnancy, AFAIK, isn't legally classified as a "women's issue" that can trigger sex discrimination laws - see Geduldig v. Aiello.)

I'm interested in hearing how you'd frame your argument.

Now that I think about it, one possibility is a suit from a woman forced to abort. Much in the same way that some important equal protection cases were suits brought on behalf of men.