Bodily autonomy is the claim that a person has a right to control what is done to his or her own body. On The Bob Zadek Show the phrase and its close relatives — “a woman’s body is her own property,” “the right to bodily autonomy” — are treated as a libertarian first principle, but the episodes show it doing different work in different settings: as an argument for legalizing organ sales, as the asserted basis of a constitutional challenge to a university vaccine mandate, and as the pivot on which libertarians divide over abortion.
Organ sales and the abortion template
In a discussion of the prohibition on selling kidneys, Bob Zadek called the statute indefensible on moral, ethical and philosophical libertarian grounds, and compared the language of the black-market debate to the language used before Roe v. Wade: a woman’s body is her own property, government should stay out of her uterus, and the same argumentative template applies to organ sales Virginia Postrel on Stasis vs. Dynamism (2014). Virginia Postrel agreed that the analogy made the organ question less problematic, and pointed to the legal and attitudinal effects of Roe v. Wade and the pro-choice movement: in the United States there are strong protections for people who want to sell eggs, while other countries forbid it. She asked why eggs may be sold but kidneys may not, noting that eggs do not regenerate, that selling them requires taking hormones and carries risks, and that she had a relative who tried to do it and ended up in the hospital. She attributed the protection to the view that the woman selling eggs has the decision over her own body, and to the affluence and influence of people who want children at later ages.
Postrel also described the black market that the kidney statute produces. Poor people in third-world countries still sell kidneys to rich Americans, she said, but the transaction goes through a broker, takes place overseas, involves complications, and the broker makes most of the money while the donor makes a pittance. The market is not huge but is significant internationally, and as always with a black market the people getting rich off it are unsavory characters. She said the original statute was passed in a moral panic moment, and that legislators pictured a transaction in which the donor was not well-informed — a picture she rejected on the basis of the care and coordination required inside the transplant system.
Vaccine mandates and the source of the right
A 2021 episode concerned a legal challenge to George Mason University’s COVID-19 vaccine mandate, brought by law professor Todd Zywicki with Jenin Younes of the New Civil Liberties Alliance as counsel Vaccine Mandates, George Mason, and the Bill of Rights (2021). Zywicki had contracted COVID and objected to the mandate on the ground of natural immunity rather than as an anti-vaxxer. Zadek framed the litigation as a David-and-Goliath fight in which the university conceded rather than allow a precedent to be established, and noted that Zywicki teaches at George Mason University’s Antonin Scalia School of Law.
Asked by Zadek where the right to bodily autonomy comes from, since the phrase does not appear in the Constitution, Younes answered that the Constitution does not lay out all rights, that the Bill of Rights preserved certain specific rights but not everything society accepts as reasonable, and that courts have treated rights such as the right to parent one’s own children as implicitly recognized in amendments including the Ninth and Fourteenth. She cited cases dealing with forcibly medicating mentally ill people, and said the issue was a huge one in Jacobson v. Massachusetts, the case standing for the proposition that vaccines can be mandated — a case she considered problematic and inapplicable to the present situation.
Zywicki added that the right has been recognized with respect to mentally ill patients and prisoners, and said he hoped employees of George Mason would someday have the same rights as federal prisoners for this purpose. He stressed that a constitutional right does not necessarily mean a veto power; it imposes an obligation on the state to justify what it wants to do. Otherwise, he said, you end up where Jacobson ended up, and he described Buck v. Bell as a notorious and revolting case in which the Supreme Court upheld a Virginia law permitting forced sterilization, with Justice Oliver Wendell Holmes writing that a law permitting forced vaccination can also require forced tying of the fallopian tubes, and coining the aphorism about three generations of imbeciles. Zywicki said Holmes’s sole citation was Jacobson, and that whether one calls it bodily autonomy or a right to privacy, the government must have some reason before forcing medical treatment.
Younes said her office would not have brought the case against a private law school because the New Civil Liberties Alliance sues only the government, and that private entities do not have to abide by the Constitution; there might be arguments under the ADA, but the case is much stronger against public entities. Zadek characterized the gravamen of the complaint as more than bodily autonomy: if the state’s compelling interest was preventing the spread of disease, Zywicki’s prior infection made the vaccination focus an empty gesture. Zywicki said he would have been vaccinated had a vaccine been available before he contracted COVID, that natural immunity provides at least as much protection as the best vaccines and clearly more than mediocre ones like Johnson & Johnson, citing at least 15 studies showing protection in the range of 90 to 95 percent against 66 percent for Johnson & Johnson. He criticized George Mason’s policy for accepting any World Health Organization-approved vaccine, including Sinovac and Sinopharm, said no clinical study shows vaccination superior to natural immunity, and cited Israeli studies finding that people vaccinated early in the year had 13 times the rate of infection, 27 times the rate of symptomatic infection and 8 times the rate of death from breakthrough infections compared with people with natural immunity, with vaccine protection deteriorating at 40 percent a month against 5 percent a month for natural immunity.
The libertarian divide on abortion
Clark Neily, asked to reconstruct the arguments of pro-choice and anti-abortion libertarians, said he would not presume to know what every libertarian in each camp would say Judicial Round-Up with Clark Neily (2022). The pro-choice libertarian, he said, starts from individual autonomy at the top of the libertarian hierarchy of values — no one may interfere with your freedom, private individual or government official, without extremely strong justification — so the presumption is that you may do what you want with your body, including taking whatever medicine or intoxicants you choose. On that view the government lacks a strong enough justification at the moment of conception, when there is only a fertilized egg, to prevent someone from ingesting a drug that stops implantation and forces her to carry the fetus to term; the justification may mature later in pregnancy but not early on. Neily noted that virtually all libertarians agree there are unenumerated rights the Constitution protects, and named the right to bodily autonomy and the right to self-defense as two arguably relevant here.
The anti-abortion libertarian, Neily said, would answer that the right to travel, the right to raise one’s own children and even access to contraception differ from abortion because none of them results in the termination of a human life or a potential human life. On abortion the government has an obligation to arguably two morally relevant beings, and if one believes that from the moment of conception we are dealing with at least a human life and perhaps a person, the government has a very strong reason to protect that life, including prohibiting the woman from ending it. Neily called this a moral or metaphysical question more than a legal one. Zadek asked him to cite the piece he wrote with Jay, saying he found how people reach their opinions more instructive than the opinions themselves, and Neily said he would put a link in the chat and that listeners could find it by typing Cato and then the title.
Across episodes
The three episodes treat bodily autonomy as a single libertarian premise applied to three different questions, and the excerpts show no development from the earlier to the later treatment: Postrel in 2014 uses the post-Roe template to argue that kidneys should be as sellable as eggs, Zywicki and Younes in 2021 use it to challenge a vaccine mandate while insisting a constitutional right is a burden of justification rather than a veto, and Neily in 2022 shows the same premise splitting libertarians over abortion. What changes is the object of the right — an organ, a medical procedure, a pregnancy — not the argument.
What the sources do not cover
The excerpts do not state the name or text of the kidney statute, the outcome or holding of the George Mason litigation beyond the university’s concession, or the citation for the Cato piece beyond Neily’s description of how to find it. They do not give the holding of Roe v. Wade or Jacobson v. Massachusetts beyond the propositions the speakers attribute to them, nor the amendment on which any case turned. No source states the date of any decision, the title of any bill, or the professional title of any speaker beyond what the labels and introductions supply.