BODILY AUTONOMY: Do we really need a new amendment to the Constitution to ensure it?

BODILY AUTONOMY: Do we really need a new amendment to the Constitution to ensure it?

The Bill of Rights was drafted to address government abuses that we had already suffered involving religion, speech, press freedoms, the right to bear arms, search and seizure, unfair trials, etc… At that point we had never experienced, let alone imagined, government intrusion into areas of bodily personal freedom. The subsequent innovation and expansion of laws and regulations governing a person’s private life is the greatest threat we face to our liberty. No pragmatic justification for these restrictions is worth the cost to our freedom.

Protecting a general right to Bodily Autonomy means freedom from government restrictions and regulation related to:

Our food. An adult should be able to decide for themselves whether the benefits of something like raw unpasteurized milk, for example, outweigh the risks.

Intoxicants. An adult should be able to decide for themselves what intoxicants they indulge in, so long as they don’t put anyone else at direct risk of harm by doing something like driving while under the influence. An adult should be able to decide for themselves whether they want to use marijuana.

Medical treatment. An adult should be able to decide for themselves if the potential benefits of an experimental medical treatment are worth the risks. An adult should be able to decide for themselves whether any medication is right for them, without having to seek the approval of a doctor who is themselves subject to regulations that curtail their ability to make decisions about their patient’s health.

How and when we die. Just as an adult should be allowed to live in the manner they choose so long as they do not harm anyone else with their personal choices, an adult should be allowed to choose how and when they die and to seek the assistance of a family member, friend or medical professional to end their lives without those people being put at risk of prosecution.

What risks we take. An adult should be able to decide for themselves whether the risks associated with any activity they might want to pursue are worthwhile. Although many of the regulations related to high risk activities only burden small subsets of the population, they represent a great intrusion on all of our personal freedoms and set a disturbing precedent. We are seeing an increase in regulations limiting or prohibiting such things as rock climbing and other such activities that do not put others at risk.

With whom and how consenting adults engage in sex or other intimate activities. It seems absurd, but its important to remember that it took a lot of work before the US Supreme Court finally announced that laws prohibiting homosexual conduct between consenting adults were unconstitutional. 

Laws that intrude on our bodily autonomy are often justified with arguments about reducing the costs to society of caring for injuries or illness. Even if one accepts the specious proposition that it is OK for government to treat adults like children in some situations for the sake of saving some money, the reality is that the restrictive laws limiting bodily autonomy are not promulgated in an objective manner that actually focuses on or achieves meaningful cost reduction. Instead, the process is perverted by the influence of large industries and majority interests. If these laws really could be justified as measures to better public health and thereby save everyone money, we would see more effort to criminalize television than to maintain criminal sanctions for marijuana use. The stringent regulations related to food safety, for example, do more to support and sustain a gigantic industrialized agricultural and processed food business than to encourage actual healthy eating. The regulations related to drugs and prescriptions do more to support and sustain the massive business of drug companies than to encourage people to take responsibility for their own health.

As an alternative to letting government prohibit certain foods or drugs, either private enterprises or a scaled down version of the FDA can be tasked to provide a stamp of approval for food or medications or the businesses that produce them that they have inspected and found to be reasonably safe. Adults would be wise to choose products with such certifications and to put their trust in the more reputable inspection organizations of this type. However, they should be free to make their own choices about who they trust. Children can be protected by holding the adults that are responsible for them to a higher standard. Some instances of an adult allowing a child access to non-certified foods or medicines or failing to seek or follow the advice of a doctor could certainly be considered a form of negligent child abuse.

In addition to supporting particular industrial interests, we have to recognize how common it is for such regulation to be used to disadvantage disfavored minorities. The following is quoted from “Legalize it all” an article by Dan Baum that appeared in the March 2016 edition of Harper’s magazine:

In 1994, John Ehrlichman, the Watergate co-conspirator, unlocked for me one of the great mysteries of modern American history: How did the United States entangle itself in a policy of drug prohibition that has yielded so much misery and so few good results? Americans have been criminalizing psychoactive substances since San Francisco’s anti-opium law of 1875, but it was Ehrlichman’s boss, Richard Nixon, who declared the first “war on drugs” and set the country on the wildly punitive and counterproductive path it still pursues. ….

I started to ask Ehrlichman a series of earnest, wonky questions that he impatiently waved away. “You want to know what this was really all about?” … “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

The Constitution can be read as protecting a wide reaching and fundamental right to bodily autonomy, but this has not happened. It has not been the case with many legislators who have thought that implementing such laws was a good and righteous cause. If we have learned anything from the last one hundred and thirty five years of experimenting with such regulation under the guise of making people healthier and safer, it is that infantalizing the population has lead to worse health choices over all and that such regulations are all too often abused both to protect powerful special interests and target powerless minorities. Maybe we do need another amendment to the Constitution that specifically protects bodily autonomy rights, but amending the Constitution is an onerous and nearly impossible task. A more practical and productive immediate option is to support Libertarian candidates and initiatives that will give a voice to the issue and stand against legislation that limits our freedoms.


JONATHAN APIRION, copyright © March, 2016. All rights reserved. No duplication permitted without written permission and proper attribution. (Just e-mail me at