Overruling Roe v. Wade: A Post in Three Parts. Part III: The End?

There are a number of ways in which an overruling of Roe v. Wade could impact the substantive due process doctrine as a whole. But the one I want to focus on in this third final post of the series is how it would impact the right to bodily integrity.

Specifically, as Eugene Volokh has argued in a forthcoming Harvard Law Review article, the life and health exceptions required by Roe, Planned Parenthood v. Casey, and Stenberg v. Carhart demonstrate that the Supreme Court has actually recognized two kinds of abortion rights – a right to choose abortion as a matter of reproductive choice, and a right to choose abortion as a matter of “medical self-defense,” i.e., when one’s life or health would otherwise be endangered. Relatedly, Michael Dorf suggested in a Findlaw column about a year ago that even if Roe fell, the serious constitutional questions would remain to be resolved whether individuals have a right to access abortion to protect their own health. And I (similarly but much less competently) argue in an article that I am just about to submit for publication (sorry, no SSRN link yet, but I am happy to send a draft to anyone who is interested), that there is a constitutional right to make medical treatment choices embodied partly in the abortion cases, especially Carhart, which made clear that women have a right to choose the safest method of abortion.

If Roe is overruled – and I realize it is difficult to analyze this issue without knowing exactly how Roe is overruled – would there be still be a right to choose abortion when it is necessary for health reasons (however defined)? If the answer is yes, this suggests that there is a freestanding constitutional right to protect one’s health – which is something I and some others argue, but not, by any means, a widely-accepted proposition. If the answer is no, this suggests that women seeking abortions have a right to protect their health that no other individual possesses – a right not only to have an abortion when medically necessary (per Roe) but also a right to have an abortion by the safest method available (per Carhart). Can it possibly be true that the Supreme Court has been favoring women seeking abortions over all other individuals in this way for all these years?

Although concerns about women’s health have motivated the pro-choice movement from the beginning, and although those concerns were front and center in the parties’ arguments in Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade, the Supreme Court has said relatively little about why this health exception requirement (as opposed to the right to choose abortion in general) exists and how it is constitutionally justified.

Part I of this series can be found here.
Part II of this series can be found here.