This law blog seems to imply that the fourth amendment post roe is under massive threat due to forced birth legislation. My argument is that the fourth amendment implies the broad right to be secure, i.e. free from government interference, including all fertility decisions.

in my opinion, a stronger constitutional foundation would stem from the fourth amendment prohibition against search and seizure.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

i know the first part of the 4th amendment is generally ignored, but the first thing it even mentions is that one must be secure from government search or seizure of one's "person" i.e. your body. perhaps a 9th amendment argument could also be made that a natural outgrowth of individual rights is that one's body must be free not only from search and seizure, but also from interference in its natural processes, whatever they may be.

in other words, the onus should be on the government to prove that someone has put something inappropriate in their body and to issue a warrant, not on the individual to avoid committing the crime of being female and wanting not to be pregnant.

it finally granted women proper autonomy over their bodies that they had been denied for centuries. but that decision also planted the seeds of its own demise, because granting the right of an individual to abort a fetus was the focal point, not rejecting the role of government to dictate what goes on inside someone's own body.

PRECISELY!

hopefully the decision will be based on a stronger constitutional foundation, so travesties like dobbs are not allowed to happen again.

What would be a stronger constitutional foundation?

a pragmatist might say that the difference is immaterial, but in the long term it isn't. the fifty-plus year conservative campaign to overturn roe, culminating in dobbs, definitively proves that it isn't. the reason why it isn't, is that the roe decision cuts against the grain of the bill of rights, rather than cutting with it, when either was possible to achieve a just result. the bill of rights was not about enshrining the positive right of an individual to do one thing or another, it was about preventing the negative right of a government from interfering in people's lives.

hopefully the court will swing back to the left before state laws restricting abortion can ruin too many millions of women's lives, and the new majority will affirm a woman's freedom from government interference in her womb. when that happens, hopefully the decision will be based on a stronger constitutional foundation, so travesties like dobbs are not allowed to happen again.

JL

Republicans' obsession with forced-birth laws could wind up losing them control over two branches of their state government.

@cw,

"forced-birth" is also a winning frame of the issue, because it is both 100% true and something people of any party wouldn't want to allow a government to do. i've said it before, and it bears repeating that "pro-choice" wasn't exactly terrible, but it was emotionally vacant. it made the decision seem more like shopping at a supermarket than protecting the sanctity of one's body from an intrusive government. the next step in the successful spin of this issue is to come up with an equally poignant counterpart to forced-birth. i'd propose something along the lines of "private pregnancy" - not a finished product, but perhaps an opening salvo in the quest to find a more successful frame than "choice." the general public can relate to someone wanting to keep their privates private.

JL