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Brooklyn Law Review

Miri Trauner

Abstract

In 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the fundamental right to abortion it had established nearly fifty years prior. The Court’s decision threw into uncertainty the future of not only reproductive rights in this country, but also many other individual rights. At the same time as the decision, the world was still reeling from a global pandemic, and the development of COVID-19 vaccines had spurred widespread controversy over the constitutionality of vaccine mandates. Both advocates for abortion access and opponents to vaccine mandates shared a common cry: “my body, my choice,” recognizing the implication of these issues on their bodily autonomy. However, a fundamental right to bodily autonomy has never been established. Instead, most individual rights—including, previously, the right to obtain an abortion—are protected under a fundamental right to privacy, a right that has received significant criticism for its multitude of meanings and overly broad scope. Situated within the many contours of the right to privacy, however, is a strong constitutional basis for establishing a fundamental right to bodily autonomy, which would better safeguard the individual rights privacy aims to protect. This note proposes that we can and should establish a fundamental right to bodily autonomy. It argues that such a right is soundly supported by the Constitution, would combat privacy’s weaknesses in safeguarding individual rights, and is capable of withstanding the strictest judicial scrutiny. Under a fundamental right to bodily autonomy, abortion bans could likely not withstand strict scrutiny, and vaccine mandates would similarly not survive except in pandemic circumstances. However, the recognition of such a right would serve to safeguard individual choices while continuing to allow government actions aimed at combating the true causes of these issues.

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