Since the publication of the U.S. Supreme Court’s decision in Dobbs v Jackson Women’s Health in June of 2022, much attention has been paid to the direct effects of that decision on reproductive health care for pregnant or potentially pregnant individuals; and to the potential effects of the Court’s approach in Dobbs to other established precedent related to privacy and autonomy, such as rights to contraception and marriage equality. This Article will explore another potential negative consequence of Dobbs; its potential effect on the constitutional parameters of the law of civil commitment and involuntary medication of the mentally ill.
The foundational Supreme Court case establishing the parameters of the State’s right to involuntarily commit an individual to a mental institution was decided only two years after Roe v. Wade. In 1975, the Supreme Court in O’Connor v Donaldson held that an individual has a liberty interest in “prefer[ring] one’s home to the comforts of an institution,” and that a State could not, “without more,” confine a non-dangerous individual. The two-prong test of requiring a showing of both mental illness and dangerousness to one’s self or to others has remained the cornerstone of civil commitment law ever since.
The language and analysis of O’Connor is similar to that of Roe, the abortion rights case overturned by Dobbs. In particular, the grounding of the right to avoid civil commitment in the individual liberty and privacy interests are common themes in the two cases. The current Court, in its decision in Dobbs, has cast substantial doubt on the continued vitality of that analysis; and one can easily imagine a reconceptualization of O’Connor along the lines of Dobbs that substantially alters the requirements for civil commitment. In particular, the reliance in Dobbs and other recent Supreme Court opinions on historical precedent as a linchpin of originalist analysis could lead the Court to search for justifications in colonial or 19th-century mental health practices, time periods which predate modern psychiatric science.
This Article will explore the parallels in approach between Roe and O’Connor, and will suggest ways in which the post-Dobbs Supreme Court majority might disrupt the civil commitment status quo, including potential expansion of civil commitment or other detention of pregnant individuals for the protection of the fetus; and possible relaxation of the dangerousness requirement for civil commitment articulated in O’Connor.
