As a result of the Supreme Court’s rejection of a fundamental due process right to abortion and the overturning of Roe, supporters of reproductive rights are seeking other methods to defend this lost liberty.
In certain places, ballot initiatives have proven effective, but they are limited solutions. If a future Congress enacted a bill similar to the recently proposed by Senator Lindsay Graham, a countrywide ban on abortions might replace state laws that guarantee reproductive liberty.
Consequently, it is essential to investigate additional clauses of the United States Constitution that might support a national right to terminate a pregnancy. The takings provision of the Fifth Amendment, which mandates equitable compensation when the government seizes private property for public use, is one alternative.
It may seem illogical that a forced birth requirement might be contested as a government expropriation of private property. We often associate the property with land or goods, not with bodies.
However, Anglo-American law has long held that the human body is truly our most personal kind of property. John Locke, whose beliefs impacted the Constitution’s framers, famously declared, “Every man has a property in his person; no one has the right to this except himself.”
In his decision overturning Roe, Supreme Court Justice Samuel Alito identified as “eminent” an early British philosopher who considered a woman’s body to be her husband’s property. Furthermore, current rules acknowledge that blood and sperm may be sold by a person, while many of us give our bodies and organs upon death.
The notion that the government appropriates a woman’s body as property is also at the heart of the opposition to anti-abortion laws: “It is my body — get out!” When reading the Constitution, federal courts are more likely to decide that a woman has a property interest in her body.
The issue would therefore be whether a rule that required a woman to bear an undesired pregnancy for nine months constitutes a “taking” that entitles her to judicial redress.
For most of its existence, the Supreme Court has resisted concluding that property rules constitute takings, which is why few (except for a former colleague) have argued that abortion prohibitions “take” female bodies as property.
Recently, however, the Supreme Court has made the takings clause a formidable tool for attacking government rules.
In a landmark judgment issued in 2021, the Supreme Court found that a California statute permitting union officials to access a farm for labor organizing activities constituted a per se appropriation of private property because it permitted a “physical invasion” by a person the owner sought to exclude.
This was the case even though the legislation severely restricted access: admission was permitted solely for labor organization and a maximum of three one-hour intervals per day and 120 days per year.
Nevertheless, according to Chief Justice John Roberts, “the ability to exclude is ‘one of the most cherished’ property rights.” By permitting the “physical invasion” of another’s property, even for a few hours, California had achieved a taking, entitling the owner to monetary compensation and maybe an injunction.
Similarly, the forced birth laws established by several states mandate a woman’s body to be “invaded” continually by a fetus for nine months without her will.
In Ohio, a now-suspended statute mandated that a woman pregnant by rape or incest carry to term any child with a detectable heartbeat to promote the state’s pro-birth stance. If the government decides to achieve its objective by stealing a woman’s body, she should have the right to claim compensation for the state-mandated invasion.
This is consistent with Roberts’ conclusion in the California case: “Government-authorized invasions of private property, whether by aircraft, boat, cable, or beachcomber, are physical takings demanding reasonable compensation.”
When faced with the ramifications of its property law, the court’s conservative majority may refuse to expand its judgment to include government-authorized assaults on a woman’s body.
However, at the very least, those judges should explain why state statutes that permit physical invasion of a man’s property demand compensation, but those that do the same to a woman’s womb do not.