The Constitutionality of Government-Imposed Bodily Intrusions

Throughout its history, this country has recognized the commonlaw right against bodily intrusions. It is considered among themost cherished of rights. It seems beyond debate that a parallelright against government-imposed bodily intrusions should receiverobust constitutional protection. Yet the Supreme Court’s treatmentof the right against government-imposed bodily intrusions ismuddled and lacks an overarching theory. Far from recognizing theright as fundamental, the Court has effectively demoted the rightfrom its deserved status through two major analytical missteps.First, the Court has created arbitrary doctrinal barriers between differentmanifestations of the same right rather than consistentlytreating 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 excessivelyto the government’s justifications for intruding. This Articleis the first to conduct a comprehensive analysis of the scatteredSupreme Court precedents on government-compelled bodily intrusions.In place of the ad hoc balancing tests the Court has tended toemploy, this Article proposes a unified framework for assessinggovernment-compelled bodily intrusions that recognizes substantivedue process as the matrix for the right and that takes meaningful accountof the psychological harms that accompany forced physical intrusionsand the importance of considering less intrusive alternatives.This Article then applies the framework to a case currentlybefore the Supreme Court involving forced blood drawing and tostate pre-abortion ultrasound mandates, the subject of a developingcircuit split. The proposed framework finally places the right

The full text of this Article is available to download as a PDF.