03/01/2012 06:46 pm ET Updated May 01, 2012

Constitution Check: How Far Can States Go to Dictate Medical Procedures?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: the constitutional protection of patients' privacy.

The statement at issue:

"Mandating an invasive procedure in order to give informed consent is not a proper role for the state. No person should be directed to undergo an invasive procedure by the state, without their consent, as a precondition to another medical procedure."

-Virginia Governor Robert McDonnell, in a statement February 22, explaining why he was returning to the legislature for modification a pending bill, SB 484, that would require a doctor to perform an ultrasound prior to an abortion being performed.

We checked the Constitution, and...

As long ago as the late 19th Century, the Supreme Court began recognizing that, in American law, it would be an illegal assault to require an individual to undergo a medical procedure without that person's consent. At the time, that principle was recognized as a part of what is called "common law." Over time, that idea would become a part of the Supreme Court's recognition of a constitutional right of privacy, protecting one's bodily integrity. Virginia Governor McDonnell's statement about an invasive ultrasound procedure fit within that legal tradition.

The Supreme Court's first significant foray into this area came in a ruling in May 1891, in the case of Union Pacific Railway Co. v. Botsford. The case involved Clara L. Botsford, who had taken a trip in a railroad sleeping car. The berth above came unlatched, and fell on her head, causing a concussion and injuring her spinal cord. After she sued the railroad for damages, the railroad demanded that she undergo a physical exam in order to determine the extent of her injuries. A judge refused to order the exam, the case went to trial, and Botsford won a verdict of $10,000. The railroad took the case to the Supreme Court.

Agreeing that the judge lacked the authority to compel the exam, the Court said: "No right is more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law... To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass..."

When that principle became a part of constitutional law, it slowly expanded into a more general right of privacy, beginning in the 1920s and continuing even now. In time, the right was found to exist under the First Amendment, the Fourth Amendment, the Fifth Amendment, even the Ninth Amendment on unenumerated rights, and, when state laws were involved, the Fourteenth Amendment. This has been a controversial process, with critics suggesting that Justices often did little more than write their own value preferences into the word "privacy."

But that process has been most controversial when it returned to its origins in the Botsford decision -- that is, privacy as a shield for "bodily integrity." In that realm, courts have struggled to determine when the right can be restricted, based upon "clear and unquestionable authority of law," in the phrase used by the Court in Botsford.

Of course, the most controversial recognition of the right in this context came in the Court's 1973 decision in Roe v. Wade, finding that a woman had a constitutional right of privacy that included the right to an abortion, at least in the early stages of pregnancy. (Not by coincidence, the Court there began its review of the history of privacy rights with the Botsford decision.)

With the Roe decision remaining largely intact, the movement to restrict the abortion right has turned increasingly to what are called "informed consent" laws. There is no real doubt that, at least as a basic legal proposition, a state in regulating licensed doctors can require that patients be told of the consequences of a medical procedure before they undergo it, so that their consent is founded on understanding of the risks. For patients seeking abortions, the Supreme Court made that authority clear in its 1992 decision in Planned Parenthood v. Casey, even as it reaffirmed the main principle of the Roe decision.

The latest development has come in the campaign in state legislatures to require women contemplating an abortion to have an ultrasound procedure, to show them how their fetus is developing, and, obviously, to get them to reconsider. Seven states now have laws that mandate that an abortion doctor perform an ultrasound on each woman seeking an abortion, and show the image to the patient. One of those, in Texas, recently withstood in a federal appeals court a constitutional challenge by doctors.

Virginia's initial legislation on this subject this year went further: it required that the ultrasound be performed with a device inserted into the woman's vagina to get a more accurate image of the fetus, and to capture the sound of the fetal heart beating.

Since the measure as it moved through the legislature did not give the woman the option of refusing this procedure, it was widely denounced as a state-mandated assault. The same kind of protest emerged this week in Alabama, where a similar law was under way in that state's legislature. The protests succeeded in both states, apparently, as the legislators opted to narrow the ultrasound requirement. No one believes, though, that this is the end of the controversy, or is the final word on the law of privacy.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.