Roe's Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female CitizenshipUniversity of Pennsylvania Journal of Constitutional Law
AbstractIn this Essay, I demonstrate how I have come to the conclusion that the "compelling state interest" language used by the Court in Roe has been used to constrain and derogate women's citizenship. In Part I, I detail Roe's holding and describe some of the arguments, which use Roe as precedent, that seek to justify limits on health care decision making by pregnant women. I argue that because Roe does not address situations outside of the abortion context, it leaves intact women's common law and constitutional liberty rights to direct their medical care. Therefore, the state cannot constitutionally compel medical treatment on pregnant women for the sake of their fetuses. In Part II, I detail some of the ways in which Roe has been used to harm women. Specifically, I argue that judicially compelled medical treatment harms individual women because it violates the privacy and liberty interests of individual women to engage in pregnancy-related decision making and other medical decisions. Finally, Part III elucidates the fundamental harm that lies at the heart of these restrictions - the consignment of women to second-class citizenship. In this section I argue that judicially compelled medical treatment in this context harms women as a social group by subordinating all women to their reproductive capacity and state-sanctioned mothering roles. I also argue that such treatment diminishes women's autonomy and by so doing, derogates and disrespects women's claim to full citizenship. These harms, along with the harms to individual women, have the effect of relegating women to second-class citizenship.
Citation InformationApril Cherry, Roe's Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female Citizenship, 6 University of Pennsylvania Journal of Constitutional Law 723 (2004)