Physically Intrusive Abortion Restrictions as Fourth Amendment Searches and Seizures

Harvard Law Review, January 2015 | Go to article overview

Physically Intrusive Abortion Restrictions as Fourth Amendment Searches and Seizures


Successful challenges to abortion restrictions have typically been brought under the Fourteenth Amendment's Due Process Clause and considered within a right-to-privacy framework. (1) However, legal scholars have criticized that approach, citing its limitations and its poor fit with abortion. (2) While those scholars have offered a sex-equality framework as an alternative, (3) challenges under the Equal Protection Clause have been unsuccessful in the context of pregnancy-related claims. (4) As anti-abortion advocates and state legislatures friendly to their cause gain ground in restricting abortion, litigants and pro-choice advocates may welcome new conceptual avenues and fresh litigation strategies to combat the influx of abortion restrictions passed in recent years. (5)

Abortion restrictions in place today range from those that regulate the context of abortion--principally providers--to those that impose physical restrictions directly upon women seeking abortions. The former make abortion more costly and time consuming by reducing the number and convenience of locations. For example, this type of restriction may require that providers are licensed physicians, that two physicians participate, or that provider locations qualify as surgical centers. (6) In addition, requiring a twenty-four-hour waiting period between a first visit and the visit during which the abortion is performed necessitates multiple trips to the provider, which may be located dozens or hundreds of miles from where the woman lives. (7) The other principal type of restriction can be physically intrusive. They include requirements that providers perform ultrasounds prior to providing the abortion, even if the woman's medical condition does not call for an ultrasound, and even if the woman would prefer it not be performed. Similarly, prohibitions on mid--and late-term abortions could be considered physically intrusive insofar as pregnancy entails fairly dramatic physical changes to a woman's body and such prohibitions mandate that a woman remain in an unwanted state of pregnancy.

Despite efforts under the Due Process (8) and Equal Protection Clauses, (9) abortion restrictions abound. Physically intrusive abortion restrictions are common. While the Oklahoma Supreme Court struck down its state's mandatory ultrasound law in Nova Health Systems v. Pruitt, (10) and cited Planned Parenthood of Southeastern Pennsylvania v. Casey, (11) it did so with very little analysis. (12) Twelve other states mandate that ultrasounds be performed prior to each abortion sought in the state, with three requiring the provider to display and describe the image and nine requiring the provider to offer the patient the opportunity to view the image. (13) Indeed, the Fifth Circuit rejected a challenge to a Texas law requiring, inter alia, mandatory ultrasounds. (14) In addition, ten states prohibit abortions after twenty weeks of pregnancy (except in cases of life or health endangerment), (15) even though fetal viability in the United States occurs at approximately twenty-three to twenty-five weeks of gestational age. (16)

Such state-mandated physical intrusions may infringe on constitutional rights other than those protected by the Due Process or Equal Protection Clauses. When the government physically intrudes upon certain areas enumerated as constitutionally protected under the Fourth Amendment, the Constitution requires that such intrusions be "[]reasonable." (17) The Fourth Amendment guarantees that the security of "persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (18) By the plain language of the Amendment, unreasonable intrusion constituting a Fourth Amendment search or seizure upon a person is unconstitutional. To the extent certain abortion restrictions can be understood as such unreasonable intrusions, they can be challenged as unconstitutional Fourth Amendment events. (19)

This Note proposes that certain physically intrusive abortion restrictions--such as mandatory ultrasounds--amount to unconstitutional physical intrusions into the constitutionally protected space "person. …

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Physically Intrusive Abortion Restrictions as Fourth Amendment Searches and Seizures
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