Bodily autonomy is defined as the right to self governance over one’s own body without external influence or coercion. It is generally considered to be a fundamental human right. Bodily autonomy relates to the concept of affirmative consent, which requires full and eager participation in any sexual encounter. Bodily autonomy is also applicable to each individual’s right to choose family planning options. Additionally, bodily autonomy is central to the formation of laws regarding privacy, abortion, medical treatment, homosexuality, and education. This article will summarize significant concepts, legal actions, and court cases in the United States that relate to bodily autonomy.

Consent

Consent is an agreement between two or more individuals to partake in a specified activity. Consent does not have to be sexual but it does have to be voluntary, without outside forces or manipulations. Consent can be as easily revoked as it can be granted. Below will describe the difference between negative and affirmative consent.

“Yes Means Yes”

Bodily autonomy and consent mean that people have complete control over their own bodies, including the right to choose who they engage in sexual activity with what actions they want to participate in. Taking this into account, affirmative consent is a new model for deciding when sexual assault takes place and is the new legal standard for consent on many college campuses. New York and California have both adopted mandated affirmative consent policies.¹ Unlike the previous standard of “no means no,” which required a negative reaction as the indicator of non-consensual behavior, the affirmative consent model relies on positive affirmations to confirm that actions are wanted.¹ Affirmative consent is a voluntary, ongoing, mutual decision between partners. It reinforces that silence or a lack of resistance do not equate a “yes.” Below are a list of scenarios that do not demonstrate affirmative consent:

• If one is coerced, intimidated, forced, or threatened into a sexual situation.
• If sex is initially consensual but a partner changes their mind.
• If a person is incapacitated, unconscious, inebriated, asleep, or in any way unable to give consent.
• If a person is below the age of consent.
• If a person is silent or gives a neutral response, such as a shrug.

Fortunately, these situations are preventable. When partners maintain open and honest dialogue, there is no room for miscommunication. In addition to helping prevent sexual assault, using verbal affirmations helps to ensure that all partners are enjoying a sexual experience. Contrary to popular belief and what media tends to portray, using verbal affirmations does not kill the mood in sexual situations, but can actually add to the arousal and excitement. Examples include phrases such as, “Do you like it when I do ___?”  “Can I please remove ___?” “I really want to do __ to you, are you into this?”

Family Planning Resources

Bodily autonomy means that you have the right to choice when it comes to decisions that affect your body, health, and future. The term “pro-choice” is most commonly used when referring to a female’s right to have an abortion, but it also applies to a female’s right to use whichever family planning methods that they feel most comfortable with. Some decisions can be made with a partner, such as choosing to go off of birth control with the intent of conceiving a child or choosing the best contraceptive method for both people (i.e. barrier methods, hormonal options, or both); however, other decisions are solely the right of the individual. Pregnancy is one example of this. The choice to carry a pregnancy to term is entirely up to the person who is pregnant. Medical professionals, including those at clinics such as Planned Parenthood, can offer more information and services relating to family planning options.

Legal Action

In the United States, the doctrine of bodily autonomy comes from the right to life, which is written in the Constitution. This is furthered by section one of the 14th Amendment where it reinforces that the state cannot deprive any person of life, liberty, or property without due process.² The right to bodily autonomy has also been reaffirmed by a multitude of Supreme Court cases over the past 50 years. Below are synopses of each of these cases and how they can help you understand the rights you have to your own body.

Right to Privacy

The right to privacy refers to the idea that personal information is protected from the public so that it cannot come under scrutiny. As put by Supreme Court Justice Louis Brandeis, the right to privacy is the “right to be left alone.”³ This idea has been used as the foundation for abortion case and birth control rulings in the Supreme Court.

Griswold v. Connecticut

Before Griswold v. Connecticut took place in 1965, it was illegal to use any form of contraceptive in the state of Connecticut. After a gynecologist at Yale Medical School opened a birth control clinic in conjunction with Estelle Griswold, the matter was taken to the Supreme Court. The Supreme Court ultimately decided that a bill of privacy could be inferred from the several amendments to the Bill of Rights and prevented states from banning the use of contraceptives amongst married couples.⁴

Eisenstadt v. Baird

Eisenstadt v. Baird is another case that dealt with the right to procreation and privacy. This Supreme Court case took place in 1972 and stuck down a preexisting Massachusetts law that banned the distribution of contraceptives to unmarried couples. The decision stated that it was a constitutional protection for individuals, in addition to married couples to choose whether or not to engage in procreative sex.⁸

Right to Abortion

Abortion is legal in the United States so that all women who choose not to carry a pregnancy to term could potentially have this option. Through a series of court cases that established the right to privacy, the right to abortion was able to fall under this category. Although abortion is legal, it is important to note that there are many limits placed on the ability to get one depending on the power of the state.

Roe v. Wade

Roe v. Wade is perhaps the most well known supreme court case pertaining to abortion law. The case was between Jane Roe and Henry Wade and took place in the early 1970’s. Roe, a resident of Texas, sought to end her pregnancy through the use of abortion, which was illegal at the time, unless the mother’s life was critically endangered. Ultimately, in a 7-2 decision, the court decided that a woman’s right to abortion fell within the right to privacy, which is protected under the 14th Amendment. This decision granted women autonomy over their bodies and pregnancies within the first and second trimester. The third trimester was left up to the discretion of the state.⁵

Planned Parenthood v. Casey

After Roe v. Wade, states continued to try to pass laws that restricted access to abortion. Such was the case with the Pennsylvania Abortion Control Act, which included requirements that forced married women to notify their husbands before choosing to have an abortion and females under the age of 18 to get parental permission. The law was challenged under a woman’s right to her own body and right to abortion. As a result, the Supreme Court introduced a test of “undue burden” which meant that states could not impose laws that made it intentionally difficult for women to obtain abortions.⁶

Right to Refuse Medical Treatment

In many countries worldwide, some form of informed consent is required to perform any sort of medical procedure or study on a human subject. The Supreme Court has also upheld that all competent adults have the right to refuse any medical treatment, even if it is life-saving.⁸ The Declaration of Helsinki sets forth guidelines for “valid consent” for medical research. This declaration asserts that participants in studies should be aware of their role in a study, should have their personal information protected, and should be able to withdraw at will. Most developed nations have either modeled their medical legislation based on this declaration, or have something fairly close.¹⁰

Right to Consensual Homosexual Activity

Anti-sodomy laws have long existed in the United States as a way to limit the rights of LGBTQ+ individuals both publicly and privately. However, many of these laws have been challenged for being discriminatory or invasive, once again falling under the right to privacy. Fortunately, this has led to the right to marriage, no matter the gender, sex, orientation, or identity.

Lawrence v. Texas

Lawrence v. Texas was a 2003 Supreme Court case that overturned a previous ruling of the case Bowers v. Hardwick that made same-sex sodomy illegal. Lawrence v. Texas upheld that the freedom of adults to engage in consensual sex acts was protected under the 14th Amendment. This Supreme Court case thus formally recognized and legalized same-sex sexual activity and was a great success for the LGBTQ+ community.⁸

Obergefell v. Hodges

Obergefell v. Hodges was another important win for the LGBTQ+ community that legalized same-sex marriage. Prior to 2015, it was still illegal in some places in the United States for same-sex couples to get married. The plaintiffs argued that this violated both the Equal Protection Clause and the Due Process Clause of the 14th Amendment because married couples had certain rights that unmarried same-sex couples were not being afforded. The ruling upheld this and agreed that same-sex couples must be granted the same fundamental liberties as heterosexual couples.⁹

Right to Education

The right to education is a universal human right, as stated by the United Nation’s Universal Declaration of Human Rights. This declaration of Human Rights was adopted in 1948 and says under article 36, that “everyone has the right to education.”¹¹ In the United States, there is also a right to education, which includes anti-discrimination clauses that ensure that everyone can feel safe at schools.

Title IX

Title IX is an educational amendment that was passed in 1972 in the United States. Title IX applies to any institution that receives financial assistance from the U.S. Department of Education, which applies to all public schools and universities. Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”⁷ Key issues that fall under the jurisdiction of Title IX include the following: sexual harassment, employment, counseling, financial aid, treatment of pregnant students, admissions, recruitment, and athletics. Perpetrators found guilty of sexual harassment, assault, or exclusion at a school can be expelled, fired, or arrested.

Concluding Remarks

Although there is still not a right to bodily autonomy in all places and there are many groups that try to contradict this ideology, legal precedent in the United States supports the idea that bodily autonomy is synonymous with the right to life. Every person has the right to control, protect, and make decisions about their own body. Clearly, people in the U.S. and elsewhere have been fighting to protect bodily autonomy for a long time, and continue that struggle to this day.

References

1. Delamater, Chandler. “WHAT “YES MEANS YES” MEANS FOR NEW YORK SCHOOLS: THE POSITIVE EFFECTS OF NEW YORK’S EFFORTS TO COMBAT CAMPUS SEXUAL ASSAULT THROUGH AFFIRMATIVE CONSENT.” Albany Law Review 79 (2016): 591-683. Web.
2. LII Staff. “14th Amendment.” Legal Information Institute, Legal Information Institute, 17 May 2018
3. Sharp, Tim. “Right to Privacy: Constitutional Rights & Privacy Laws.” Live Science. 12 Jun 2013. Web.
4. “Griswold v. Connecticut.” Oyez.
5. “Roe v. Wade.” Oyez.
6. “Body Politic.” Oyez.
7.  “Title IX and Sex Discrimination.” Home, US Department of Education (ED), 25 Sept. 2018.
8. “Constitutional Law.” Justia.
9. “Obergefell v. Hodges.” Oyez.
10. “EEB 180: Genetic Engineering in Developing Countries.” Informed Consent in Developing Countries. N.p., n.d. Web. 19 May 2016.
11. “Universal Declaration of Human Rights.” United Nations, United Nations.

Last Updated: 1 November 2018.