II. Physically Intrusive Abortion Restrictions as Fourth Amendment Violations
The Fourth Amendment protects against government-mandated physical intrusions into the constitutionally protected areas of persons, houses, papers, and effects. Such intrusions come in two principal forms under the Amendment: searches and seizures. Section II.A argues that mandatory ultrasounds constitute unreasonable searches. The Supreme Court has explained the protection vis-à-vis searches in two ways: first, as defending reasonable expectations of privacy,
41 and second, as preventing physical intrusions as harms in themselves.
42 As this Note argues that physically intrusive abortion restrictions constitute Fourth Amendment violations, it applies the physical intrusion test — or “trespass test”
43 from
United States v. Jones44 and
Florida v. Jardines45 — to evaluate whether certain conduct in the abortion-restriction context constitutes a search. Concluding that mandatory ultrasounds are searches, this section then evaluates their reasonableness under a variety of frameworks.
Section II.B argues that mandatory ultrasounds also amount to unreasonable seizures. The intrusiveness of abortion restrictions such as mandatory ultrasounds makes them prime candidates for evaluation under the intrusiveness rather than invasion-of-privacy conception of seizures.
46 The analysis will address whether a woman undergoing physically intrusive abortion restrictions would believe she is “not free to leave,”
47 and whether the intrusion imposed outweighs its public-interest justification and thus renders it unreasonable.