Laws Requiring Trans-Vaginal Ultrasounds Are Constitutional. Should They Be?

Today we have a guest post written by philosopher Neil McArthur. Neil writes regularly on his blog Moral Lust about sexual ethics and the philosophy of sexuality.

In America, you have a right to an abortion, but you don’t have a right to refuse a trans-vaginal ultrasound if your state lawmakers decide to make you have one. People could demand a fundamental right to control their own bodies – but it might have consequences they don’t expect.

Abortion is protected by the “right to privacy” that U.S. law now reads into the Constitution. But as this right is currently interpreted, it does not mean bodily privacy. Courts have always taken seriously an individual’s interest in disposing of her body as she chooses, free from state intrusion. But they have never recognised a right to do this, on par with the right to free speech or free assocation. Prisoners have been unsuccessful, for instance, in challenging mandatory body-cavity searches, and the courts have not ruled decisively against strip-searches in high schools.

The most important decision establishing a constitutional right to privacy, Roe v. Wade, specifically denied a relationship between this right and “an unlimited right to do with one’s body as one pleases”. (This denial is in fact the only actual use of the term “body”, at least to describe a human body, in the entire decision.) The Roe decision was based instead on a woman’s right to determine her identity and the course of her own life. Such a right is without question an important one. But it does not on its own rule out mandatory trans-vaginal ultrasounds. 

Cases involving sexual freedom tell a similar story. Another monumental decision, Lawrence v. Texas, which in 2003 invalidated Texas’s anti-sodomy law, grounded its legalisation of gay sex in the right of gay people to form relationships important to their identity, rather than a right to have whatever sex they want. Nor is this a quirk of U.S. law. European and Canadian courts have similarly resisted recognising a basic right to dispose of our bodies as we see fit.

The motivation is clear. A right to do as we please with our bodies would threaten, probably fatally, a wide swath of current laws, including those against prostitution and adult incest. We as a society may want to preserve those laws – for any number of reasons, such as public health and the protection of vulnerable women.

But when we are thinking about rights, or at least about human rights, this is arguably to think precisely backwards. We do not generally start by asking ourselves which activities we want to ban and which to allow, and then decide what rights people have based on our answer. We are supposed to start with our beliefs about the fundamental rights people have, and then ensure the laws conform to them. Aren’t we?

Pretend, for the sake of argument, that there is only one way to give women constitutional protection against laws like the ones mandating trans-vaginal ultrasounds – and that is to recognise a fundamental right to bodily privacy. And pretend we had the power to do so. Now assume, again for the sake of argument, that by recognising such a right, we would make it impossible for the state to regulate activities such as prostitution, bigamy and adult incest. Would you be in favour of recognising such a right? Or would the costs be too high?