Are Abortion Bans Takings?

Are laws restricting abortion takings of "private property" that require the government to pay "just compensation" under the Fifth Amendment? In a recent law review article on abortion rights (pp. 504-508) and in her important new book After Misogyny, Fordham law professor Julie Suk argues that the answer is "yes." Her argument is a fascinating example of a famous left-liberal law professor arguing for a major expansion of Takings Clause protection for property rights.

The position she advances has a strong basis in natural rights theories of property, including those advanced by James Madison, the principal framer of the Takings Clause. But it also cuts against centuries of legal precedent and practice. If accepted by the courts, it would have fairly radical libertarian implications that would make me happy, but might be less welcome to many left-of-center advocates of abortion rights.  Suk's theory faces an uphill fight under US Supreme Court precedent. But it could perhaps fare better under some state constitutions.  Her argument is also notable as one of several examples of left-liberals potentially rethinking their traditionally negative view of constitutional property rights.

The basic argument here is admirably clear and simple. People have property rights in their bodies. Laws banning abortion restrict those rights. Moreover, the imposition is a pretty severe one. To put it in more legalistic terms, the Supreme Court has ruled in Cedar Point Nurseries v. Hassid (2021) that even a temporary physical occupation of property qualifies as a "per se" taking, automatically requiring compensation. By similar logic, abortion bans can be seen as compelling unwanted physical occupation of a woman's body by the fetus.

The idea that people have property rights in their bodies is far from a new one. John Locke famously defended such rights in the 17th century. So too did James Madison, the Founder principally responsible for drafting the Takings Clause and getting it included in the Bill of Rights. In his famous 1792 essay on "Property," Madison wrote that property includes not only "a man's land, or merchandize, or money," but also—among other things—"the safety and liberty of his person." He goes on to say "[t]hat is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest."

As an example of such "arbitrary seizures," Madison gives the case of "a magistrate issuing his warrants to a press gang" (referring to the then-common practice of governments seizing men for forced labor or military service). But it's not hard to see how coerced pregnancy can also be considered a seizure of "one class of citizens for the service of the rest." Locke's and Madison's arguments have been extended by modern libertarians (myself included), who have long argued for a broad notion of self-ownership. The idea of self-ownership was also central to the anti-slavery movement that inspired the Reconstruction-era amendments. And, of course, one of the major achievements of the feminist movement was the extension to women of bodily autonomy rights previously fully available only to men.

But despite this impressive historical pedigree, the idea of self-ownership property rights in the body has never played a meaningful role in takings doctrine. Takings jurisprudence has historically been confined to property in land and objects ("real property" and "personal property," in legal terminology), a limitation embodied in William Blackstone's famous definition of property as "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual." Intellectual property also gets some protection. But, to my knowledge, federal and state courts have never ruled that a restriction on bodily autonomy violates the Takings Clause.

There is a long history of state and federal laws that impose severe restrictions of that type, and would be vulnerable to attack on takings grounds, if state and federal constitutional takings clauses had applied to them. Most obviously, military conscription literally seized men's bodies and forced them to be used for purposes against their will. The same goes (to a lesser extent) for mandatory jury service. Draftees and jurors usually get paid, but generally far less than the "fair market value" Supreme Court precedent requires as "just compensation" for takings.

In the 1916 case of Butler v. Perry, the Supreme Court upheld a Florida law forcing men between the ages of 21 and 45 to do road repair work, six days per year. The Court cited a long history of similar statutes. I think the justices were wrong to reject the Thirteenth Amendment argument against the constitutionality of these horrible forced-labor laws. But it's notable that no one seems to have tried to challenge them on Takings Clause grounds.

There is one major historical example of takings arguments being deployed to attack the seizure of property rights in human bodies. But it's not one likely to appeal to modern sensibilities. Before the enactment of the Thirteenth Amendment, defenders of slavery often argued that abolition should be considered a taking, thereby requiring compensation. On top of that, they also contended that it would be a taking not for a "public use," (as required by the Fifth Amendment), because the new owners of the "property" in question would not be the government, but private individuals (the freed slaves themselves). Abolitionists responded (correctly, in my view) that emancipation was not a taking because the ownership of slaves was not a "natural" property right, and therefore not one protected by the Takings Clause at all. I go over this debate and its implications for modern takings issues in Chapter 2 of my book The Grasping Hand.

For present purposes, the key takeaway is that takings arguments were used here because this was the one major situation in American history where mainstream legal thinkers (at least those supportive of slavery) thought that property in a person was essentially similar to property in objects or animals. For defenders of slavery, owning a slave was just another example of Blackstonian "dominion…. over the external things of the world."

I do not mean to suggest that Suk's argument is somehow on the same moral plane as that of the slaveowners. There is an obvious moral chasm between claiming ownership of one's own body, and claiming a right to control the bodies of other people by force. But the paucity of other historical takings arguments of this type underscores the reality that takings doctrine has never been understood to protect bodily autonomy, as opposed to the ownership of "external things."

Suk cites a number of cases recognizing property rights in body parts, such as a spleen removed during an operation. But these weren't takings cases. Moreover, they mostly involved property rights in body parts that have already been removed from the body, thereby becoming external objects (standard "personal" property). The exception is cases involving surrogate parenthood, in which the surrogate carries and gives birth to a fetus on behalf of a couple unable to do so on their own. But, legally speaking, this is best understood as a contract for labor, similar to other situations where people commit using their bodies to do work for pay (sometimes risking various dangers in the process). Government regulations restricting such labor contracts have never been held to be takings and the same applies to laws banning or restricting surrogacy.

A second doctrinal challenge for Suk's argument is the so-called "police power" exception to takings—the longstanding rule that restrictions on property rights that would otherwise be takings are exempt from the requirement of just compensation if they were adopted for the purpose of protecting public health and safety. For example, during the Covid pandemic, a number of court decisions rejected takings challenges to public health orders shutting down various businesses on the grounds that they fit within the police power exception. The scope of this exception has never been all that clear, and there is a long history of debates over how far it should go. But if you believe that abortion is akin to murder or manslaughter, you are also likely to conclude that abortion restrictions fall within the police power exception. You might even reach that conclusion if you think that the government just has a reasonably plausible claim that restricting abortion is needed to protect innocent life.

I don't myself hold that view (I am pro-choice with respect to the overwhelming majority of abortions), and I think the police power exception should be given a fairly narrow interpretation, more generally. But the issue is not an easy one. As with many other arguments about abortion, much depends on the extent to which you believe fetuses have a right to life comparable to that enjoyed by infants. The plausibility of the pro-life position on this point is one of the key factors that makes abortion a tougher issue than many other bodily autonomy issues.

More can be said about the police power question. For now, I just note this is a difficult issue that Suk doesn't address, but should consider taking up in the future.

Let's assume these doctrinal problems can be overcome, and courts must declare abortion restrictions to be takings. Such a conclusion would have major implications that go far beyond abortion. At the very least, the draft, mandatory jury service, and any other significant government-imposed forced labor would have to be considered takings as well. That includes various proposals for mandatory national service periodically propounded by advocates on both the right and the left.

All such policies involve the appropriation of a person's body to perform various types of work against his or her will. And, in many cases, especially the draft, the severity of the imposition is at least as great as that of an unwanted pregnancy. Draftees are generally required to serve longer than nine months, and—at least in wartime—they may face much greater risks to life and health than most pregnant women.

Other state-imposed constraints on bodily autonomy do not involve physical appropriation of the body, but "merely" restrictions on what you can do with it. If you believe—as many takings experts do—that the Takings Clause protects against "regulatory takings" as well as "physical" ones, then these should also go on the chopping block. Examples include the War on Drugs, bans on the sale of organs, laws banning prostitution, FDA restrictions on what types of medicine people are allowed to take, and much more. As with the draft, some of these regulations impose very severe burdens, at least as great as those of abortion restrictions. Laws banning organ markets literally kill many thousands of people every year. FDA restrictions have created a vast "invisible graveyard"  of people who died because regulatory barriers prevented from using medicines that might have saved their lives.

Some of these can potentially be distinguished on the grounds that they "merely" involve bans on the payment of money, rather than on the activity itself. For example, current law allows you to donate an organ for transplant, but not to be paid for it. Ditto for the legal distinction between prostitution and unpaid sexual encounters. But the vast majority of abortions are also performed by people who are paid for the service. I suspect Suk would not accept the idea that her takings argument doesn't apply to laws that "only" ban abortions performed for pay.

Current Supreme Court precedent does offer some protection against regulatory takings, but much less than against physical invasions and appropriations. The more you believe—as I do—that these two types of takings should be treated more equally, the broader the potential impact of expanding the Takings Clause to protect bodily autonomy.

Such protection would not be absolute. The Takings Clause is not a total bar on regulation, but merely a requirement that the state must pay just compensation (and that the seizure of property rights be for a "public use"). But the need to pay compensation might end up deterring many types of regulation, if maintaining them required payment of vast sums to large numbers of people. The War on Drugs probably wouldn't survive for long if government had to pay fair market value compensation to everyone who wants to sell, distribute, or use currently illegal narcotics. Many states might prefer to abolish mandatory jury service if they had to pay market wages to jurors (I would be happy to see such a shift). And the same goes for many other policies.

While I'm not—so far—convinced that our present Constitution requires  it, I would be absolutely thrilled to have a constitutional system in which restrictions on bodily autonomy are generally considered takings, subject—perhaps—to a narrow police power exception. Even if that rule were limited to "physical" takings, it would still be a huge improvement over the status quo.

Obviously, people less libertarian than me might not be so happy to embrace these implications of the argument that abortion restrictions are takings. Some might even be horrified at the mere thought of them.

I urge Prof. Suk and other advocates of the argument that abortion restrictions are takings to carefully consider the implications of their reasoning for other issues. If they want to embrace the implications sketched out above, that's great! If not, they should spell out which ones they reject and why.  A rationale narrowly confined to the abortion context risks being rejected as arbitrary special pleading; or at least that may happen unless it is accompanied by a compelling theory explaining why the same reasoning doesn't apply to other significant restrictions on bodily autonomy.

While Suk's argument faces tough sledding under US Supreme Court precedent, it could potentially fare better under at least some state constitutions. Virtually every one of the latter has a takings clause of its own. And many of them have different histories (and sometimes even different wording) from the federal one. State courts can and sometimes do interpret their takings clauses as providing more protection for property rights than the federal Supreme Court's interpretation of the Fifth Amendment. Moreover, many state constitutions are much easier to amend than the federal one. Perhaps a state could enact a Self-Ownership Amendment under which significant constraints on bodily autonomy are presumptively considered takings, or even just presumptively banned altogether. State constitutional law matters greatly here, because many constraints on bodily autonomy (including most abortion restrictions) are products of state law, not federal.

Finally, Suk's argument is notable as an example of the broader trend of left-liberals rethinking traditional left-wing hostility to expansive constitutional property rights. Since the Progressive and New Deal eras, the dominant left-wing view has been that property rights deserve little, if any, judicial protection, because they were seen as tools by which the rich exploit the poor and impediments to rational, scientific social planning.

But the Supreme Court's recent unanimous decision in Tyler v. Hennepin County (using the Takings Clause to ban home equity theft) is an example of how property rights protections often actually benefit the disadvantaged, minorities, and those lacking in political influence. And this issue is just the tip of a much larger iceberg, that includes such practices as exclusionary zoning, "blight" and "economic development" takings, asset forfeitures, and more.

These types of issues have gradually begun to shift left-liberal attitudes on property rights issues, albeit liberal constitutional law scholars have been more wary than economists and land-use specialists. I hope the trend will continue and—hopefully—pick up steam.