Woman or child? This is the question at the foundation of debates over women’s bodily autonomy, from abortion to surrogacy. Autonomy cannot mean that every promise involving the body is meaningless. But a contract involving pregnancy also cannot mean that a woman permanently signs away the right to make decisions about her own body. The law needs to reconcile those two principles instead of pretending one automatically cancels out the other.
Every year brings another nuance to cases about bodily autonomy that Roe v. Wade once answered, but since its repudiation by the Dobbs decision, many of these questions pertaining to abortion and family planning have been left without clear legal answers. Thanks to the American judicial system’s decimation of Roe, many of these questions remain unanswered and some citizens are left feeling vulnerable, losing faith in a system built to protect them.
The right to bodily autonomy exists to prevent situations of abuse or coercion, and in the case of Roe v. Wade, the right to not be forced to carry a fetus. This statute also included the personal protection to receive an abortion for any reason before fetal viability.
As of Aug. 12, a new issue has emerged: who has the right to refuse an abortion, and who has the right to request one on someone else’s behalf.
In a post-Roe society, significant gaps remain in cases involving maternal or fetal health, with no real answer from the law on what happens in extraordinary cases.
One of the most notable cases in recent years involved Adriana Smith, a nurse from Atlanta, who was declared brain dead while pregnant. Medical professionals kept her on life support, citing Georgia’s abortion laws, despite her family’s wishes.
The case sparked national outrage and exposed the complex consequences of strict abortion policies. Her family was left disturbed that they were not given the opportunity to make decisions about her care, and were forced to watch her wither in a vegetative state.
On Aug. 21, Californian couple, Nausheen Gilkar and Omar Ahmed, became embroiled in a custody battle with a surrogate, McKenna West of Alaska, who declined to terminate the pregnancy at the intended parents’ request after severe fetal health complications were discovered.
West fled to Texas with help from the anti-abortion advocacy group Live Action and has since given birth. While surrogacy has been a debated practice over the vulnerability of the surrogates and the parental rights of the child, in no case is it right to flee from a contractual agreement based upon personal opinion.
Smith and West sit on opposite ends of the same failure by the Supreme Court within a legal system struggling to determine who ultimately has authority over a woman’s body. In Smith’s case, the state asserted control of a body that could no longer consent and used it to sustain a pregnancy against her family’s wishes. In West’s case, a private contract tried to exert control over a body that could still consent and used that control to end a pregnancy against the surrogate’s wishes.
This remains especially pertinent when considering that Black women are three times more likely to experience pregnancy-related complications than white women, a gap maintained regardless of income or education. A young, poor, uneducated Black woman facing a medically complicated pregnancy has the least legal leverage of anyone. She is the most likely to be pressured into a decision by a doctor, a contract or a state, and the least likely to have the resources to challenge it in court.
The circumstances are vastly different, but the underlying problem is the same: when Roe no longer provides a constitutional baseline for reproductive autonomy, who gets the final say when the law, a contract and a woman’s own wishes collide? Neither should leave us comfortable with the idea that a woman’s bodily autonomy can become secondary to a statute or a signature on a piece of paper.
While West and Gilkar and Ahmed’s case is still ongoing, it carries broader implications for the protected rights of women and families. Her decision to leave the state transformed a reproductive disagreement into a jurisdictional battle, forcing courts to confront a question: can an agreement made before pregnancy override a woman’s decisions once she is pregnant?
Cases like these will keep making headlines because the country has not actually resolved the questions Dobbs exposed. It has simply pushed them into state legislatures, courtrooms and private contracts. When a woman’s rights depend on which state she is standing in, which judge hears her case or which agreement she signed months prior, bodily autonomy stops looking like a right and starts looking like a privilege.
Copy edited by Jori Johnson