Reproductive Due Process
The George Washington University Law Review, 2020 (Forthcoming)
78 Pages Posted: 10 Jan 2020
Date Written: May 2020
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 take?
In 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 post-deprivation 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 non-arbitrary in its application.
If 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 state-compelled pregnancy entitled to additional procedure, care, or compensation from the state either pre- or post-deprivation? 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 Process.
Keywords: Feminist Legal Theory, Reproductive Rights, Constitutional Law, Due Process, Procedural Due Process, Abortion
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