Monday, October 20, 2014
Caitlin E. Borgmann (CUNY School of Law) has posted The Constitutionality of Government-Imposed Bodily Intrusions (University of Illinois Law Review, p. 1059, 2014) on SSRN. Here is the abstract:
Throughout its history, this country has recognized the common law right against bodily intrusions. It is considered among the most cherished of rights. It seems beyond debate that a parallel right against government-imposed bodily intrusions should receive robust constitutional protection. Yet the Supreme Court’s treatment of the right against government-imposed bodily intrusions is muddled and lacks an overarching theory. Far from recognizing the right as fundamental, the Court has effectively demoted the right from its deserved status through two major analytical missteps. First, the Court has created arbitrary doctrinal barriers between different manifestations of the same right rather than consistently treating it as a unitary, fundamental substantive due process right. Second, it has given insufficient weight to the nonphysical, or “psychological” harms of forced bodily intrusions, and has deferred excessively to the government’s justifications for intruding. This Article is the first to conduct a comprehensive analysis of the scattered Supreme Court precedents on government-compelled bodily intrusions. In place of the ad hoc balancing tests the Court has tended to employ, this Article proposes a unified framework for assessing government-compelled bodily intrusions that recognizes substantive due process as the matrix for the right and that takes meaningful account of the psychological harms that accompany forced physical intrusions and the importance of considering less intrusive alternatives. This Article then applies the framework to forced blood drawing, an issue addressed in a recent Supreme Court decision, and to state pre-abortion ultrasound mandates, the subject of a developing circuit split. The proposed framework finally places the right against government-imposed bodily intrusions on its proper constitutional footing.