Document Type

Working Paper

Publication Date

1-10-2020

SSRN Discipline

PSN Subject Matter eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; Cultural Anthropology eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Legal Scholarship Network; WGSRN Subject Matter eJournals; Womens & Gender Studies Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; AARN Subject Matter eJournals; Political Science Network; Anthropology & Archaeology Research Network; Political Economy - Development eJournals

Abstract

This Article engages in a thought experiment It assumes that the Supreme Court has correctly identified the constitutional scope of the substantive right to abortion by balancing a pregnant person's right to liberty with the state's interest in potential life Following on this assumption it asks the question what else might the Constitution require At the moment when the criminalization of abortion becomes constitutionally permissible in light of the countervailing state interest in fetal life is there evidence to suggest that the state has any additional constitutional obligation to the pregnant person whose rights were overcome by the force of the state interest And what other constitutional principles can be utilized to discern the form such an obligation might takebrbrIn various other contexts the state can constitutionally infringe on the liberty and property of individuals through incarceration quarantine eminent domain civil commitment and conscription into military service among other examples In this way the infringement of liberty and property attendant to compelled pregnancy is in line with other types of constitutionally permissible government action In contexts outside of pregnancy however state action that deprives individuals of liberty and property in light of a countervailing state interest is constitutional only if the state also adheres to a number of other requirements before the deprivation of an individual's right occurs after the deprivation occurs or both These pre and postdeprivation requirements include the mandate that the government provide notice a hearing for the individual to contest the appropriateness of the deprivation minimum conditions of care for those deprived of liberty or fair compensation as remuneration for deprivations of property In this way the government infringement of a right that would be constitutionally impermissible becomes valid by ensuring such an infringement occurs only through established and fair processes and procedures This concept is enshrined in the constitutional scheme as due process and it ensures that government action which deprives individuals of protected rights is nonetheless fair and nonarbitrary in its applicationbrbrIf the right to abortion is stated nowhere in the Constitution but can be derived from a penumbra of other rights specifically enumerated then why isn't a pregnant person who is deprived of liberty and property by virtue of statecompelled pregnancy entitled to additional procedure care or compensation from the state either pre or postdeprivation And if she were entitled to these rights what might they look like The answer to these questions provides insight into the rights and remedies that comprise the constitutional preconditions for the criminalization of abortion"”Reproductive Due Processbr

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