The Struggle for Bodily Autonomy Rages On

Introduction

In the past few years, the fight over bodily autonomy has received a revitalization thanks to an array of political and legal challenges. Currently, the most visible of such debates is occurring over the potential threat that the Supreme Court will alter or overrule Roe v. Wade as the Court is scheduled to decide on a related issue in the middle of next year. With such a fiercely contested, decades-old issue making a substantial reappearance, additional legal developments in the field of bodily autonomy can easily become overlooked. Despite the palpable uncertainty as the Supreme Court’s holding draws closer, several legal developments and concerns in the area should be recognized.

Issues

            Undoubtedly the most controversial and highly politicized legal battle over bodily autonomy of the year has arisen in the form of Texas Senate Bill 8. Passed on May 19 of this year and taking effect on September 1, the bill prohibits the vast majority of abortions after six weeks of pregnancy.[1] The bill immediately elicited a nationwide display of emotions, ranging from applause to condemnation via legal challenges, such as allegations of civil rights violations in Whole Women’s Health v. Jackson.[2] The law is currently in a state of serious instability due to such legal challenges. The United States Justice Department initially issued an emergency request that the controversial law be placed on hold, a request granted by a federal judge via preliminary injunction in the first week of October.[3] After the 5th Circuit reversed the decision and allowed the law to take effect, the Justice Department announced its intent to again request a hold on the law, this time from the United States Supreme Court.[4]

            With such a restrictive abortion law in contention, proponents and critics alike are undoubtedly inclined to invoke Roe v. Wade in advocating for their points of view. However, the Supreme Court has already decided to hear a case considered to be a direct challenge to Roe v. Wade in which a Mississippi law bans most abortions after 15 weeks, a standard less restrictive than Texas Senate Bill 8 but significantly more restrictive than the current precedent established by Roe v. Wade.[5] As such, I would argue that the upcoming Mississippi case, Dobbs v. Jackson Women’s Health Organization, will likely prove to be the true case of consequence in the fight for (or against) Texas Senate Bill 8. The Supreme Court already expressed a desire not to interfere directly with the Texas law’s legal challenges in a 5-4 decision in early September.[6] Regardless of the status of the law in the meantime, the Supreme Court’s decision to uphold, overrule, or modify Roe v. Wade next year in Dobbs will likely determine the constitutionality of Texas Senate Bill 8.

            California has likewise recently taken an active role in policing bodily autonomy, exemplifying the “laboratories of democracy” philosophy conceptualizing states as champions of legal experimentation. In 2017, a Yale student published a paper addressing the risks involved with nonconsensual condom removal and called for the establishment of a tort of “stealthing” to protect victims.[7] Partially in response to the paper, in early October California amended the state’s legal code to permit victims of such actions to sue for damages, the first state in the nation to do so.[8] Creating this legal avenue for victims of lack of sexual consent has since drawn messages of approval from across the nation.[9]

While similar laws in other states have yet to come to fruition, both New York and Wisconsin have previously attempted.[10] As of this writing, California’s new law has only been in effect for a matter of weeks. With a renewed push for legal protection for women’s bodily autonomy and combined with the power and influence of California spearheading the establishment of this new tort, I expect additional states to again propose similar legislation. Speaking on behalf of the California legislature, California state assembly member and amendment sponsor Christina Garcia stated, “We have stepped up in a major way in California & I hope other state legislatures follow suit.”[11] Assuming no significant and identifiable negative effects arise in California, state legislatures considering such proposals will likely point to California as evidence of the concept’s merit, providing adequate momentum to carry the proposals into law.

            Yet another consent-related issue that has seen significant attention in recent years pertains to women undergoing medical procedures. The first is the requirement that women obtain spousal consent prior to medical procedures, primarily hysterectomies. State governments abandoned such legal requirements decades ago, but the practice is often not explicitly prohibited and therefore private practices are free to impose spousal consent policies at will.[12] Earlier this year, one Iowa state representative responded to personal accounts of women subjected to such policies by introducing a bill prohibiting health care professionals from requiring women to obtain spousal consent prior to a hysterectomy.[13]

In a similar vein, a debate has raged in the past few years regarding obtaining consent for pelvic exams on anesthetized women at teaching hospitals. While many hospitals deny participating in the practice without first providing informed consent, medical students have repeatedly voiced doubt about the adequacy of informed consent or outright lack of discussion regarding consent to procedures under anesthesia, as reported by an emergency medicine physician involved in conducting a survey of 101 medical students.[14] Several states have addressed the practice by outlawing such exams, and some teaching hospitals have responded by adjusting their policies.[15]

Conclusion

            The legal battles occurring over Texas Senate Bill 8 are at the forefront of citizens’ minds when it comes to the issue of women’s bodily autonomy. However, while the courts go back and forth between allowing enforcement of the law and placing it on hold until substantial legal challenges can be resolved, the law alone is not as likely to make waves within the area of women’s bodily autonomy as Dobbs v. Jackson Women’s Health Organization. Regardless of the Supreme Court’s holding next year in that crucial challenge to Roe v. Wade, many other instances of legal support for advancing bodily autonomy are taking place outside Texas in state legislatures. From California’s novel approach to stealthing, to the gradual elimination of the ability of private practices to require spousal consent to medical procedures, to a renewed focus on consent of patients under anesthesia, a nationwide push for the advancement of bodily autonomy is occurring in numerous other ways and should not be overshadowed amidst the threat imposed by the upcoming Supreme Court holding.

[1] S.B. 8, 2021 Leg., 87th Sess. §3 (Tex. 2021).

[2] Whole Women’s Health v. Jackson, No. 1:21-CV-616-RP, 2021 WL 3821062 (W.D.Tex., 2021).

[3] Josh Gerstein & Alice Miranda Ollstein, Federal Judge Blocks Enforcement of Texas Abortion Law, Politico (Oct. 6, 2021, 8:58 PM), https://www.politico.com/news/2021/10/06/texas-abortion-law-court-515526.

[4] Krishnadev Calamur, The Justice Department is Heading Back to the Supreme Court over Texas’ Abortion Law, NPR (Oct. 15, 2021, 12:35 PM), https://www.npr.org/2021/10/15/1046393733/texas-abortion-law-justice-department-supreme-court.

[5] Nina Totenberg, In Challenge to Roe, Supreme Court to Review Mississippi Abortion Law, NPR, https://www.npr.org/2021/05/17/997478374/supreme-court-to-review-mississippi-abortion-ban (May 17, 2021, 6:14 PM).

[6] Id.

[7] Alexandra Brodsky, “Rape-Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal, 32 Colum. J. Gender & L. 183, 183 (2017).

[8] Don Thompson, California Makes it Illegal to Remove Condom Without Consent, AP News (Oct. 7, 2021), https://apnews.com/article/gavin-newsom-california-crime-96d5b46c883d3d184e70b832a3d65e18.

[9] See Christine Emba, California Calls Condom ‘Stealthing’ What It Is: A Violation, The Washington Post (Oct. 14, 2021, 3:15 PM), https://www.washingtonpost.com/opinions/2021/10/14/california-names-condom-stealthing-what-it-is-violation/; See also Sarah Jacoby, California Is the First State to Make ‘Stealthing’ During Sex Illegal, Self (Oct. 17, 2021, 7:30 PM), https://www.self.com/story/california-first-state-stealthing-illegal

[10] Thompson, supra note 8 (“Lawmakers in New York and Wisconsin previously proposed related legislation.”

[11] Christina Garcia (@AsmGarcia), Twitter (Oct. 8, 2021, 8:55 PM), https://twitter.com/AsmGarcia/status/1446640337808543744?ref_src=twsrc%5Etfw.

[12] Julie Mazziotta & Sean Neumann, Some Iowa Doctors Are Requiring Women to Get Spousal Approval for a Hysterectomy, People (Apr. 6, 2021, 1:42 PM), https://people.com/health/iowa-doctors-requiring-women-spousal-approval-hysterectomy/.

[13] Id.

[14] Jennifer Tsai, Medical Students Regularly Practice Pelvic Exams on Unconscious Patients. Should They? Elle (June 24, 2019), https://www.elle.com/life-love/a28125604/nonconsensual-pelvic-exams-teaching-hospitals/

[15] Id.