tl;dr version: I have a Constitutional right to pay for an abortion from a willing medical provider, even if a local statute purports to forbid it. Do I have an analogous general Constitutional right to pay for and obtain other kinds of medical care despite local statutes or are my rights limited to abortion?

So, the landmark US Supreme Court case Roe v. Wade, 410 U.S. 113 (1973) found that there was a Constitutional right to abortion under many situations even if apparently banned by state law. In other words, many state abortion laws are unconstitutional.

Is abortion the only medical procedure that people in the US currently have a Constitutional right to, or are there other medical procedures or interventions that are similarly protected under the US Constitution? If other medical procedures are protected, what principles apply to determine which interventions are Constitutionally protected and which are within the police power of states to ban or allow at their discretion?

For example, suppose Maine passes laws banning laser eye surgery, appendectomies, skin grafts, and all forms of addiction therapy. Is there precedent to indicate whether these laws would necessarily be Constitutionally infirm under the principles upholding Roe v. Wade?

In other words, is abortion exceptional among medical procedures in being Constitutionally protected or is there a general Constitutional right to reasonable health care despite statutes attempting to restrict it?

Restated, I know that I have a Constitutional right to an abortion. Do I also have Constitutional rights to open-heart surgery, tumor removal, and Cognitive-Behavioral Therapy, or are my Constitutional health care rights limited to abortion only?

This is not an abortion debate thread. Please keep all answers within the scope of present Constituional law and principles, regardless of what might or might not happen later this year.

To be clear (and addressing user253751's comment), I am omitting provider willingness and patient ability to pay from this question. So (hypothetical), my doctor is willing to perform laser eye surgery, I am able to pay, but state law makes all eye surgery a felony. Is this law Constitutional?


It is interesting that access to abortions is Constitutionally protected while access to medical cannabis is, apparently, not, even though both qualify as health care and are controversial enough to have been banned by statutes in more than one jurisdiction. What's the principle that determines why abortions are protected but cannabis is not?

user6726's mention of the right to refuse vaccines is the opposite of what I am asking. I'm asking more about the right to receive a vaccine despite the legislature or the executive saying I'm not allowed to. If I want the vaccine, I can find a provider willing and able to give it to me, and I can pay, do I have a liberty interest in getting the vaccine despite local law saying that the vaccine is only for small children?

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    Careful not to confuse the right to healthcare meaning the state can't stop you from getting some, with the right to healthcare meaning the state has to give you some. May 11, 2022 at 15:17
  • There is for people who are kept in prison, but that is different than a general right to health care, which is general, there is not.
    – ohwilleke
    May 11, 2022 at 15:50
  • @user253751 yes, I mentioned in my question that I am asking about the state stopping me from getting health care. The state can't stop me from getting an abortion, but can they stop me from getting gall bladder surgery? May 11, 2022 at 18:55

1 Answer 1


In the US, the most wide-spread proscription against a medical treatment (broadly construed) is that only 10 of 50 states allow physician-assisted suicide. In Washington v. Glucksberg (one of the states that subsequently made such suicides legal), SCOTUS affirms that such a law does not violate the Due Process Clause. Given a historical analysis, the court concludes that an "asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause". O'Connor in her concurring opinion further states that "There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths", but this falls short of a ruling that a person has a protected liberty interest in seeking medical care.

Cruzan v. Director affirms that "[a] competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment" (also noting that "informed consent" may derive from common law or specific state constitutions). Reciting prior reasoning on Due Process and medical treatment and referring to Jacobson v. Massachusetts (smallpox case), they note that "the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease". There seems to be a dearth of cases affirming a protected liberty interest in seeking a particular medical procedure.

Were the court to announce a fundamental right to seek some medical treatment, that right could still be subordinated to the states compelling interest in preventing some harm associated with a medical procedure, with legal review being carried out under a strict scrutiny standard.

It should be borne in mind that Congress does limit access to drugs and devices, hence there is no constitutionally-protected right to take LSD as a treatment for mental problems. To the extent that a procedure relies on a (not-yet approved) device, that device must be approved by the FDA.

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    Are we sure there is no constitutionally-protected right to take LSD (for any reason whatsoever), as opposed to the law preventing it being unconstitutional? May 12, 2022 at 8:12
  • @user253751: We are not, and the FDA has taken a beating on other issues it should win if the constitutionality of law that allows it to do its job were a settled matter. See right to try laws.
    – Joshua
    Jul 11, 2022 at 17:12

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