Roe and the New Frontier.
by Lisa Shaw Roy INTRODUCTION | |
I. ROE'S LEGACY: OF RIGHTS AND PERSONHOOD
A. Framework of Roe and Its Progeny
1. Roe v. Wade
2. Webster v. Reproductive Health Services
3. Planned Parenthood of Southeastern Pennsylvania
v. Casey
4. Stenberg v. Carhart
B. Understanding Roe and Casey: Four Paradigms
1. Life as an Absolute
2. A "Distressful Life and Future"
3. "Human Responsibility"
4. The "Wonder of Creation"
II. SOME PROBLEMS OF THE NEW FRONTIER
A. Embryo Disposition
B. Embryonic stem cell research
1. A Temporary Compromise
2. Future Challenges
IV. A NEW APPROACH
A. Redefining Roe
1. Not Going Back to the Legislatures
2. "Special Respect" (or Other Intermediate
Category)
B. Concerns About Tampering with Roe
1. Moral Disagreement on the Question of
Value
2. Concerns About the Legitimacy of the
Court
CONCLUSION
| | INTRODUCTION Sitting under a tent in an audience filled with lawyers, judges and constitutional scholars, I listened to long-time United States Supreme Court correspondent Nina Totenberg describe a very interesting--and apparently intimate conversation with Supreme Court Justice Lewis Powell. (1) "Nina, have I ever told you why I voted as I did in Roe v. Wade?" Justice Powell recounted a story about a young man whose married lover had become pregnant. Desperate to keep the affair and ensuing pregnancy a secret, the man requested the help of his employer, then-attorney Powell, who followed him to the scene of a horribly performed abortion. Powell saw the woman as she helplessly lay bleeding in a small apartment. Ms. Totenberg never connected the story to any particular aspect of Justice Powell's ideology, but the significance of the story was not lost on anyone in the audience. (2) From a friend, I heard a totally different kind of story--one that occurred not in the 1960s or 1970s, but in the year 1999. The central character in my friend's story was an unborn fetus in his mother's womb, undergoing a spinal operation to control the effects of spina bifida. Samuel Armas was only twenty-one weeks old at the time of the operation, (3) so the surgical instruments were specially designed to work in miniature. (4) During the operation, a photograph was taken that showed a surgeon's hands on the outside of the womb, and a tiny hand protruding from the incision in the womb clutching one of the surgeon's fingers. These stories identify pieces of the abortion debate that resound with the adherents of one or more schools of thought on the subject. (5) Although legally settled by the Supreme Court in 1973, the abortion debate has grown with an unabated momentum ever since, gathering together and pulling apart people of different ages, races, sexes, and faiths. (6) While the abortion debate rages on the terms of a right to fetal life and an opposing right to a woman's choice, outside of the context of abortion, advances in reproduction and technology outpace the assumptions underlying those positions. Precisely for this reason, I argue that courts have erroneously imported the Supreme Court s conclusion in Roe v. Wade (7) that a fetus is not a constitutional person into areas of law outside the context of abortion. Beginning with Roe v. Wade, Pan I of this article surveys the considerations underpinning four of the Court's major abortion decisions in an attempt to provide some context for Roe's conclusions. To that end, Part I also evaluates certain popular and legal thought surrounding the abortion debate, painting a more complete picture of the Court's abortion jurisprudence. Part II discusses some practices of the new frontier and suggests that concerns raised by developments in science and reproduction militate against the application of Roe to those practices. Pan III examines the tenability of a judicial solution to this problem and particularly the concerns raised by any corrective action by the Supreme Court. I leave the reader to decide whether the Supreme Court should ultimately take such action. I. ROE'S LEGACY: OF RIGHTS AND PERSONHOOD Roe ignited an ongoing debate about the proper regulation of abortion. What many regard as the nation's most divisive issue has taken on a language of its own, based on the Court's decision in Roe, subsequent eases, and prevailing social and legal thought. Seizing on the Court's pronouncement of a woman's right to abortion and a fetus' lack of a corresponding personhood right, lawyers and commentators have framed their positions on abortion almost exclusively in those terms. But outside of the abortion context, any analysis of Roe's application--specifically Roe' s conclusions about fetal personhood--should be tempered by an examination of the reason, purpose, and logic of those conclusions. (8) The concept of a right to abortion was, no doubt, entered into popular culture and parlance through Roe v. Wade and its progeny, as well as the many discussions about whether and how abortion is protected under the United States Constitution. Mary Ann Glendon posits that most contemporary Americans hold a radicalized view of rights, encompassing "the right to do whatever you want." (9) In the abortion debate, Glendon contends that this preoccupation with the rights belonging to each individual has reduced the conversation to a competition between the opposing "rights" to life and to choice. (10) Thus if the fetus has no right to life then the right to abortion remains. If the fetus is in fact a person with such a right, however, then the abortion right cannot coexist. This was the apparent position taken by the Supreme Court in Roe, as evidenced by its conclusion that if the fetus is a person, then Roe's case "collapses." (11) But the Court's conclusion does not necessarily follow from the premise. As John Hart Ely has aptly explained: | |
[I]t has never been held or even asserted that the state interest
needed to justify forcing a person to refrain from an activity,
whether or not that activity is constitutionally protected, must
implicate either the life or the constitutional rights of another
person.
| | From a practical perspective, Justice Ruth Bader Ginsburg has criticized the opinion in Roe for having gone too far, creating unnecessary political turmoil. (13) If Ely and Ginsburg are correct, however, and the Roe Court's personhood determination was doctrinally and practically unnecessary, then what does that mean for the survival of that aspect of Roe? Certainly, to decide whether that portion of the opinion should have any precedential effect (either vertically or horizontally) (14) in future contexts, we must consider the reason for its existence. If Justice Blackmun's statements on behalf of the Court were mere obiter dictum, (15) then courts are not bound to follow them. On the other hand, if the personhood determination was central to the Court's analysis, then it will be difficult to undo. (16) Since Roe, the Supreme Court has not opined on the status of fetal personhood. In Thornburgh v. American College of Obstetricians and Gynecologists, Justice Stevens declared that "[n]o Member of this Court has ever suggested that a fetus is a 'person' within the meaning of the Fourteenth Amendment." (17) For Justice Stevens, the significance of his observation lay in his belief that, were the fetus a person, the Court could not constitutionally sanction abortion. (18) Although Stevens' observation remains true, no Supreme Court Justice has affirmed the correctness of Roe's personhood analysis as an original matter or applied it outside the bounds of abortion doctrine. Nonetheless, many lower courts have applied Roe in all sorts of situations assessing the value of life or potential life. In disputes over cryogenically preserved embryos and in cases involving claims brought by embryos against researchers and hospitals, courts have based their analyses on the premise that, according to Roe, fetuses and embryos are not constitutional persons. (19) This has led to conclusions that are questionable on the law and troubling as a matter of policy. An examination of Roe, the seminal cases following Roe, and several paradigms explaining the positions taken in Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey (20) provides a background against which to consider Roe's future application. It is also the appropriate starting point for an assessment of whether courts should apply Roe's personhood conclusion to other areas of the law. A. Framework of Roe and Its Progeny 1. Roe v. Wade In 1973 the Supreme Court decided the companion cases of Roe v. Wade and Doe v. Bolton, (21) in the culmination of a debate that had been growing for many years prior to those decisions. (22) Justice Blackmun, writing for the Court, analyzed the constitutionality of a Texas statute that criminalized the procurement of abortion except where necessary to save the mother's life. (23) Among other things, the Court surveyed historical understandings of abortion, as well as English and American common law and statutory law, to discern the justifications for criminal abortion laws in the nineteenth and twentieth centuries. (24) The Court also reviewed the official American Medical Association and American Bar Association views on the subject. (25) Justice Blackmun began the Court's analysis by recognizing a fundamental right of privacy that protects a woman's decision to choose to terminate her pregnancy, and the Court found the right to be a matter of personal liberty embodied in the Due Process Clause of the Fourteenth Amendment. (26) The Court identified the detriment to the pregnant woman if she was not permitted to obtain an abortion: | |
Specific and direct harm medically diagnosable even in early
pregnancy may be involved. Maternity, or additional offspring,
may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health
may be taxed by child care. There is also the distress, for all
concerned, associated with the unwanted child, and there is the
problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it. In other cases, as in
this one, the additional difficulties and continuing stigma of unwed
motherhood may be involved.
| | The Court acknowledged, however, that the right protecting the pregnant woman's interests could not exist in a vacuum, but must be balanced against the state's interests in safeguarding health and medical standards (including the health of the mother) and in protecting potential human life. (28) The only remaining issue for the Court, then, was to determine at what point the state's interests become compelling. (29) By choosing fetal viability as the deciding line, the Court rejected the state's position that life begins at conception. (30) This led the Court to perhaps the most controversial aspect of its decision--its conclusion that an unborn fetus is not a "person" within the meaning of the Fourteenth Amendment. (31) But the opinion itself gives no real clue as to the significance of the personhood of the fetus. Justice Blackmun raised the issue as a failing argument by the state, but spent little time evaluating the merits of the argument. The Court began with a textual analysis of various constitutional provisions, explaining that the word "person" had never been understood to include a fetus. (32) The Court noted what it perceived to be a telling inconsistency between Texas' position that the fetus is a person and the statutory exception for cases in which the woman's life is in danger, reasoning that if the fetus were a person then apparently no justification would support its destruction--not even preservation of the mother's life. (33) These observations, combined with an earlier discussion of the history of abortion regulation in the United States, led the Court to conclude "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." (34) The Court declined to accept Texas' assertion of a compelling interest in protecting life from the moment of conception apart from the Fourteenth Amendment, stating that the Court was not in a position to speculate as to when life begins. (35) The Court's textual analysis of fetal personhood, however, seems especially lacking in light of the Court's treatment of the competing interests of the pregnant woman. Rather than merely inquire, for example, whether the word "liberty" as used in the Fourteenth Amendment includes the practice of abortion, the Court began its constitutional analysis with a distinctly extra-textual proposition: "The Constitution does not explicitly mention any right of privacy." (36) This glaring asymmetry in analysis suggests that the personhood determination was neither seriously researched nor heavily pondered by the Court. And the Court's lack of engagement in the issue of personhood would seem logical if, perhaps, Justice Blackmun was merely working backward from the proposition that the right to abortion is guaranteed under the Constitution. (37) In any event, as might have been expected, the battling forces on either side of Roe did not view the Court's decision as a compromise position. Pro-choice advocates have largely claimed it as a total victory, while pro-life advocates have taken it as a devastating loss. (38) 2. Webster v. Reproductive Health Services After a fairly consistent line of cases strictly following Roe, the Supreme Court decided Webster v. Reproductive Health Services, (39) narrowing Roe in several respects. Webster was particularly significant at the time it was decided because it was thought to signal the Court's willingness to eventually overrule Roe. (40) At issue in Webster was Missouri's amended abortion statute, which contained a preamble seemingly at odds with Roe. (41) The preamble contained findings by the state legislature that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health and well-being." (42) The preamble further stated that all Missouri laws should be "interpreted to provide unborn children with the rights enjoyed by other persons," subject to the United States Constitution and Supreme Court precedent. (43) In evaluating the statute's preamble, the Supreme Court disagreed with the Eighth's Circuit's interpretation of an earlier Supreme Court case, confirming that a state may make a value judgment favoring childbirth over abortion. (44) The Court declined to decide whether the preamble was constitutional under Roe, noting that it had not yet been interpreted by the State of Missouri. (45) Rather, the Court found that the preamble could be read to do no more than provide protection to unborn children in tort and probate law. (46) As to a provision in the statute requiring certain tests prior to viability, the Court found that the provision permissibly furthered the state's "important and legitimate" interest in protecting potential human life throughout pregnancy, affirmatively acknowledged in Roe. (47) To reach its decision on this point, however, the Court criticized the trimester framework and viability doctrine found in Roe. (48) In rather strong language, Justice Rehnquist argued that stare decisis has less power in constitutional cases where no other body of government is empowered to make necessary changes. (49) Although aspects of its opinion in Webster narrowed Roe, the Court refused to explicitly overrule it--pointing only to a factual difference between the law in Webster which prohibited only post-viability abortions, and Roe, which prohibited all abortions except where the mother's life was at stake. (50) The Court's opinion in Webster contained no justification of Roe or its personhood analysis, and the Court's brief statement declining to overrule Roe seemed to suggest that it perhaps would be willing to do so given the right set of circumstances. (51) Justice Scalia complained that the plurality opinion had "finessed" Roe to implicitly overrule its holding without explicitly doing so--which he would have done. (52) Justice Blackmun, on the other hand, agreed that Webster had tacitly overruled Roe and dissented on that ground. (53) 3. Planned Parenthood of Southeastern Pennsylvania v. Casey Planned Parenthood of Southeastern Pennsylvania v. Casey (54) is perhaps the most significant case applying Roe. In Casey, the Court substituted the current "undue burden" analysis for strict scrutiny, an idea previously mentioned only in dissent by Justice O'Connor. (55) More importantly, the Court offered a compromise between the pro-life and pro-choice positions and provided what appear to be the Court's strongest justifications for accepting its proposed truce. Faced with another request to overrule Roe, the Supreme Court, in a rare joint opinion by Justices O'Connor, Kennedy, and Souter, explained that the "essential holding" of Roe would be, once again, retained. (56) Reviewing its substantive Due Process and privacy decisions, the Court explained its role as interpreter of the Constitution so as to protect a "realm of personal liberty" beyond that provided explicitly in the Bill of Rights. (57) In a somewhat cryptic passage, the Court expanded Roe's discussion of the woman's interests in obtaining an abortion to include the freedom to "define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (58) The Court then identified the interests of a woman seeking an abortion in more concrete terms: | |
The mother who carries a child to full term is subject to
anxieties, to physical constraints, to pain that only she must bear.
That these sacrifices have from the beginning of the human race
been endured by woman with a pride that ennobles her in the eyes
of others and gives to the infanta bond of love cannot alone be
grounds for the State to insist she make the sacrifice. Her suffering
is too intimate and personal for the State to insist, without more,
upon its own vision of the woman's role, however dominant that
vision has been in the course of our history and our culture. The
destiny of the woman must be shaped to a large extent on her own
conception of her spiritual imperatives and her place in society.
... We have no doubt as to the correctness of [Griswold vs.
Connecticut, (60) Eisenstadt v. Baird, (61) and Carey v. Population
Services International (62)]. They support the reasoning in Roe
relating to the woman's liberty because they involve personal
decisions concerning not only the meaning of procreation but also
human responsibility and respect for it. As with abortion,
reasonable people will have differences of opinion about these
matters. One view is based on such reverence for the wonder of
creation that any pregnancy ought to be welcomed and carried to
full term no matter how difficult it will be to provide for the child
and ensure its well-being. Another is that the inability to provide
for the nurture and care of the infant is a cruelty to the child
and an anguish to the parent. These are intimate views with infinite
variations ... The same concerns are present when the woman
confronts the reality that, perhaps despite her attempts to avoid it,
she has become pregnant. (63)
| | The Court explained that any reservations it had about reaffirming Roe were outweighed by its discussion of individual liberty combined with stare decisis. (64) The Court then launched into an analysis of the role of stare decisis, evaluating the acceptable bases for departing from the doctrine--when a rule is unworkable, when it has not been significantly relied upon, or when developments in law or fact have made the rule practically obsolete--and concluded that Roe need not be overruled. (65) Going even further, in what appeared to be a civics lesson on the importance of stare decisis in cases responding to national controversies, the Court warned that any decision to overrule Roe would be viewed as a surrender to political pressure, which would undermine the legitimacy of the Court and result in the eventual downfall of the nation. (66) The Court maintained viability as the point at which states may regulate abortion, but suggested that previous cases had gone too far in ignoring the state's interest in protecting potential life. (67) For that reason, the Court again denounced the trimester framework and in its place supplied the undue burden standard, holding that if a regulation places an undue burden on the woman's ability to make a decision regarding abortion at any time during pregnancy, then it is per se unconstitutional. (68) To reach the result of affirming Roe's essential holding--as re-written by the joint authors of the opinion in Casey--the Court abandoned strict scrutiny in favor of the undue burden standard, overruled two post-Roe decisions, demoted abortion from the status of a fundamental right, (69) and made no mention of fetal personhood. After Casey, it certainly seemed that the Court had thoroughly overhauled Roe. (70) 4. Stenberg v. Carhart In a recent abortion case, the Supreme Court addressed the controversial issue of partial birth abortion. (71) Stenberg is significant both because it represents a recent application of the undue burden standard, and because the nation is still stinging from the escalation of the already volatile abortion debate. (72) In Stenberg, the Court had to decide whether, under Casey, Nebraska's partial birth abortion law constituted an undue burden on a woman's abortion decision. (73) The Nebraska statute completely banned partial birth abortion except where necessary to save the life of the mother, and defined partial birth abortion as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." (74) Justice Breyer, writing for the majority, found the statute unconstitutional under Case), because it did not contain an exception for the health of the mother. (75) The Court agreed with the Eighth Circuit's interpretation that the statute's ban on partial birth abortions included the D&X as well as the D&E abortion procedure--D&E being one of the most common procedures for second trimester previability abortions. (76) Because the statute could be read to prohibit D&E abortions, the Court predicted that abortionists would fear criminal prosecution for performing routine second trimester abortions, thus creating an undue burden on a woman's right to an abortion as established in Roe and Casey. (77) Justice Stevens concurred with the result but opined that statutes like the Nebraska statute were unprincipled in that the two abortion procedures were "equally gruesome," and thus Nebraska could not have a genuine interest in respect for potential life by banning one in favor of the other. (78) Justice Ginsberg, citing a supporting position from Judge Posner of the Seventh Circuit analyzing a similar law, regarded the statute as no more than an attempt to "chip away" at the decision in Roe v. Wade. (79) In a separate dissent, Scalia regarded Stenberg as precisely what should be expected under the undue burden standard of Case--that justices would decide what is undue not based on the text of the constitution or on historical understanding, but on their own personal philosophy about the sanctity of life or potential life. (80) And although a signer of the joint opinion in Casey, Justice Kennedy vigorously dissented on the grounds that the Stenberg decision misapplied Casey, which acknowledged that states do have an interest in protecting life and potential life before and after viability. (81) As to the creation of an undue burden, Kennedy read the statute as prohibiting only D&X abortions and found that the state had a legitimate interest in declaring a moral difference between D&X and other procedures, likely deeming the former much closer to infanticide. (82) Kennedy concluded with harsh criticism: "The Court's refusal to recognize Nebraska's right to declare a moral difference between the procedure[s] is a dispiriting disclosure of the illogic and illegitimacy of the Court's approach to the entire case." (83) O'Connor's concurrence was loyal to the majority, although she opined that if a similar statute were more narrowly drawn and a health exception present, she would uphold its constitutionality. (84) The majority opinion lacked any such promise, opening with its refusal to revisit the principles announced in Roe. (85) Stenberg demonstrates that Roe remains intact post-Casey, though the Court's asserted commitment to a unified front appears to have unraveled. B. Understanding Roe and Casey: Four Paradigms That talk of rights and personhood has filtered into the social conversation about abortion has had implications for abortion jurisprudence. Popular and legal thought both before and after Roe--drawing heavily on the concepts of rights is often reflected in the abortion cases. An examination of four popular paradigms, both pro-life and pro-choice, sheds light on the various considerations in Roe and Casey, and together with those cases suggests the appropriate setting for Roe's future application, if any, outside of the context of abortion. 1. Life as an Absolute In his book, The Morality of Abortion, published three years prior to the Roe decision, Judge John T. Noonan and others explore the issue of abortion from a distinctly pro-life point of view. (86) According to Noonan, popular acceptance of abortion was fueled by concerns of overpopulation and a cultural desire for sexual autonomy. (87) In describing the change in public opinion toward favoring abortion, he observes that "[t]he desire to be free of a code of morality fed on a distrust of any abstract formulation of an 'absolute,' a conviction that many such formulations in the past had actually harmed human beings, and a disbelief in the existence of any authority capable of promulgating universal rules." (88) In Noonan's view, however, those promoting abortion failed to see the real issue of whether the fetus has a right to live. (89) Noonan describes the view that life begins at conception as "[a]n almost absolute value in history," surveying traditions of the Catholic and Protestant churches. (90) Although he notes exceptions in cases of rape and incest, Noonan found that most religions and ancient societies recognized life in the womb prior to birth and agreed that abortion was akin to murder. In the pro-life formulation, the right of the fetus to continue its life (in most cases) outweighs consideration of the impact of the pregnancy on the woman involved. Hence the life of the fetus becomes an absolute that must be protected, not destroyed. This position is and has been the central tenet of the pro-life movement. (91) 2. A "Distressful Life and Future" Pro-choice advocates, on the other hand, have framed the issue of abortion as involving the right of women to control their bodies. Pro-choice advocates emphasize the right of a woman to determine whether or not she should be bound to carry the fetus to term and give birth, since to do so involves changes in a woman's body, her health, and her range of life choices. Some have described this view of the right to abortion as a woman's right not to become an incubator for the state. (92) At the time that Roe was decided, this line of argument contained what many consider to be a potent social justice component--namely the assertion that poor and minority women, faced with the choice of obtaining health-threatening illegal abortions or raising children for which they cannot provide, are the ones most adversely impacted by restrictions on abortion. Justice Blackmun clearly seems to have been a proponent of this view. (93) Some have questioned this premise, (94) but the pro-choice movement has not relied solely on the social justice argument in the debate about abortion. Rather, the pro-choice position rests on the larger proposition that a woman should be permitted to obtain an abortion regardless of her particular circumstances. And while earlier pro-choice rhetoric characterized the fetus as a mere "clump of cells," later pro-choice advocates maintained that their position was sound even if the fetus was a living human. (95) Many proponents of this position have adopted an analogy described by the ethicist Judith Jarvis Thomson to support their view of the unintended or undesired pregnancy and its consequences. (96) In her analogy, Thomson invites the reader to imagine waking up one morning with a celebrated violinist attached to his or her body. The violinist has a kidney disorder that requires him to be attached to the reader's body for nine months or so, but if the reader unplugs the violinist prematurely, the violinist will die. The question then becomes, notwithstanding that the violinist is a person with rights, is the reader required to remain attached to the violinist or can the reader unplug him? Thomson concludes, and many have agreed: that you would be "within your rights" to unplug the violinist. (97) In reaching her conclusions, Thomson relies on the fact that the American legal tradition generally has not required individuals to be "Good Samaritans" and give of themselves to rescue another. (98) The natural challenge to Thomson's position is that, except in cases of rape or other forced sexual relations, one does not "wake up" pregnant. (99) Thus where sex is voluntary, the pregnant woman has at least tacitly consented to the possibility of pregnancy. (100) Thomson anticipates this general objection with another analogy, apparently referring to situations in which attempts at contraception have failed. She invites the reader to suppose that: | |
[P]eople-seeds drift about in the air like pollen, and if you open
your windows, one may drift in and take root in your carpets or
upholstery. You don't want children, so you fix up your windows
with fine mesh screens, the very best you can buy. As can happen,
however, and on very, very rare occasions does happen, one of the
screens is defective ..." (101)
| | She concludes that the person-plant who develops as a result would not have a right to the use of your house. (102) Thomson's conclusion seems to rest on the apparent harshness of the protective measures society would require of the homeowner in order to avoid responsibility--in her example, that the homeowner could only have avoided her predicament by living "with bare floors and furniture, or with sealed windows and doors." (103) Likewise, a woman could completely avoid pregnancy resulting from rape either by "having a hysterectomy, or anyway by never leaving home without a (reliable!) army." (104) Though not stated by Thomson, it would follow that a woman could completely avoid a pregnancy resulting from voluntary sex only by abstinence. (105) Yet critics of Thomson's argument do not focus on how difficult it would be to completely avoid the risk of pregnancy, but on the voluntariness with which a person may be said to have encountered that risk at the outset. For example, Richard Langer compares pregnancy with the predicament of the person who | |
freely chooses to join the Society of Music Lovers, knowing that
there [i]s a 1 in 100 chance of being plugged into the violinist if
she joins the society.... She goes ahead and joins, and much to
her chagrin, her name is selected as the person to be plugged into
the violinist. (106)
| | In response to his own rhetorical question of whether it is unreasonable to conclude that the hypothetical Society member has waived control over her own body, Langers responds, "I think not." (107) 3. "Human Responsibility" In striking contrast to the bodily autonomy line of argument, some pro-choice advocates have acknowledged that the abortion decision involves a distinctly moral choice about not only what happens to a woman's body but whether a baby lives or dies. (108) One pro-choice commentator has argued that the future medical possibility of an artificial womb to sustain unwanted pregnancies means that pro-choice advocates must shift their focus from women's decisions regarding their bodies to women's decisions regarding whether their children should be born. (109) Leslie Cannold criticizes the pro-choice movement for its focus on individual freedom and privacy rights to the exclusion of moral responsibility. Cannold responds to the helpless violinist analogy, pointing out the differences between the analogy and women's real life pregnancy experience, and concludes that Thomson's position in effect divorces women from the debate regarding the morality of abortion. (110) A few years before the publication of Cannold's work, renowned feminist Naomi Wolf similarly observed that the pro-choice movement would fare better by acknowledging the moral choices involved in abortion. (111) Cannold's conclusion, however, that the abortion right includes a woman's right to determine life or death of her child where there is no pregnancy, has not been adopted by the Supreme Court in any of its abortion decisions. (112) 4. The "Wonder of Creation" Twenty-two years after the Court's decision in Roe v. Wade, Norma McCorvey, who sued under the pseudonym of Jane Roe, changed her position on abortion. (113) After converting to Christianity, McCorvey started a ministry entitled "Roe No More" to combat abortion and provide a mobile counseling center for pregnant women in Dallas. (114) Many, like McCorvey, oppose abortion on the grounds that the practice conflicts with their religious values. (115) Others voice their opposition on the grounds that permissive abortion laws represent a step backward for women and families. A group of women and men have combined the terms "feminist" and "pro-life" in their stand against abortion and other practices, including infanticide, euthanasia, and human cloning and embryo destruction for stem cell research. (116) These feminists depart from some of the traditional views held by pro-life conservatives, but otherwise oppose abortion on social justice grounds, reclaiming feminist figures such as Susan B. Anthony and Fannie Lou Hamer as champions of the cause against abortion. (117) These groups speak less in terms of a right to life and more in terms of the value of life itself, with regard to both the pregnant woman as well as the fetus. II. SOME PROBLEMS OF THE NEW FRONTIER In thinking about Roe and the massive body of commentary that has developed, one questions whether it is almost obsolete in the discussion of issues raised by the specter of the new frontier. The world has changed a great deal since Roe was decided, and so has the concept of reproduction. Whereas in the 1970s many feared overpopulation and scarce resources, today many couples focus on ways to combat infertility. (118) Pro-life and pro-choice advocates continue to argue about the validity of their respective positions, but a critical issue is whether Roe, as modified by Casey and the understandings upon which it is based, can logically be applied to solve today's increasingly complex problems. Two examples of the practices creating problems that I have collectively termed the "new frontier" are embryo disposition and embryonic stem cell research, (119) though others may immediately come to mind. (120) The issues of embryo disposition as well as embryonic research seem to invoke Roe's explication of the value to be accorded preborn or potential life. (121) But a simple comparison between the circumstances and understandings surrounding these practices and those underlying Roe reveals quite plainly that Roe and its conclusions about personhood should not apply. When courts have applied Roe, the convenience of Roe's conclusive answer has only created further problems of definition and value. A. Embryo Disposition When couples engage in assisted reproductive technologies such as in vitro fertilization, many fertilized embryos are created but not all are used in the processes. (122) Issues arise as to the disposition of the embryos, though to date no such case has been heard by the United States Supreme Court. In the now well-known case of Davis v. Davis, (123) the Supreme Court of Tennessee considered a divorce dispute between Mary Sue and Junior Davis over the disposition of cryogenically preserved embryos. At the time the case reached the Tennessee Supreme Court, Mary Sue desired to donate the embryos to a couple who wanted a child, but Junior Davis did not want the embryos to become children. (124) To determine what should happen to the embryos, the Tennessee Supreme Court first had to consider how to term the embryos, since, according to the court, language determines status that can affect legal rights. (125) The Supreme Court noted that the embryos could be treated in three different ways: (1) as full constitutional persons, (2) as the property of Mr. and Mrs. Davis, or (3) as an interim category of potential human life deserving of "special respect." (126) The problem the court undertook to resolve in Davis involved a conflict between three competing positions, depending upon one's view of the embryos. The genetic mother, Mary Sue Davis, claimed a right to determine the embryos' disposition; the embryos, if persons, possessed a right to be implanted and develop into children; (127) and Junior Davis claimed a right not to become a genetic father outside of marriage. The court analyzed Tennessee law and then applied Roe, concluding that the embryos could not be "persons" under federal law, being far less developed than fetuses. (128) Thus the only rights left to balance were those of Mary Sue and Junior, and the court ultimately held that Mrs. Davis could not override Junior Davis' desire not to become a genetic parent. (129) Since Davis, other state courts have adjudicated cases involving similar dilemmas. (130) The application of Roe in these cases is problematic for reasons that may not be immediately obvious. Under Roe, fetuses are not persons with constitutional rights, and as such, are deserving of no special protection apart from the state's interest in potential life. Applying Roe to Davis means that the embryos must be something less than persons. The Davis court assigned the embryos to a category of beings entitled to "special respect." Yet the court in Davis did not consider whether Junior's prevention of the embryos' implantation in fact afforded the special respect required or what that special respect would entail. What this means in practice is that little weight is accorded to the value of the embryos. (131) Hence, Roe's conclusion about the lack of fetal personhood has spilled over into areas arguably not imagined by the Supreme Court at the time of Roe. I say "arguably," because in one sense the Court in Roe clearly rejected the view of life as an absolute from the point of conception. Thus one could make the case that the Court simply intended that in all future disputes, fetuses, embryos, and other preborn or potential life should not be legally recognized. Yet, given the issue before the Court in Roe, it is difficult to assume that such a sweeping result was intended. The Roe Court faced the issue of abortion, which has as its necessary consequence the destruction of the fetus. The Court deemed its balancing to be an all or nothing proposition--either the fetuses' interests or the woman's must prevail. Any serious discussion about the value of human life or potential life would have only made the Court's task more difficult and, to some extent, less palatable to the public. In the case of embryos, however, where an asserted human life is at stake and there is no countervailing abortion right to be jeopardized, it would seem that some consideration of the value of the embryos is in order. (132) The application of Roe to Davis and similar cases also reveals an analytical problem. Though not explicitly revealed, Roe seems to make some marked assumptions about how and why the fetus had come to exist in the first place. Justice Blackmun distinctly stated that maternity threatened to "force upon the woman a distressful life and future." (133) The joint opinion in Casey, too, references the woman who, perhaps despite efforts at contraception, has become pregnant. (134) Thomson's story of the violinist is analogous, supposing that the reader woke up with a violinist attached to her body after having been kidnapped by the Society of Music Lovers. (135) In Davis, however, Mary Sue and Junior deliberately participated in a process to create the embryos that were later frozen. At best, Roe is not squarely on point with Davis and similar cases. At worst, the Court in Davis misapplied Roe, the only similarity between the two being the fact that Davis involved embryos and Roe involved a fetus. At this point one might respond that Roe does not depend on whether the woman has intentionally become pregnant. One could compare Davis to a situation in which a married couple successfully conceives a child after several attempts, but days later the husband dies in a tragic accident. In this scenario, the woman intentionally became pregnant but changed circumstances in her relationship affect her pregnancy and may nonetheless cause her a distressful future. Certainly this situation would fit within one of the "infinite variations" (136) envisioned by the Court in Roe and Casey. Yet the embryo case is not quite the same. The couple in Davis surely realized that during the course of a long term proposition like marriage, feelings and circumstances are subject to change. Intentionally creating embryos that can live outside of the body for several years involves the deliberate assumption of the risk that one partner may no longer desire to have a biological child with the other. And perhaps the most significant difference between this situation and the one in Davis is that the woman whose circumstances have changed is physically affected by the pregnancy. Roe and Casey clearly emphasize the mental and physiological effects of carrying a pregnancy to term as justifications for abortion. (137) In Davis and similar disputes, the decision will not result in a woman being required to carry an unwanted pregnancy to term. This conclusion can be avoided only if one accepts the extreme position that the right to abortion encompasses the right to decide whether a child lives or dies. It remains to be seen what value the United States Supreme Court would assign the embryo that has been deliberately created but for some reason is no longer deemed necessary or desirable. This was not the case in Roe or in the Court's subsequent abortion decisions. Although some may assume that the Court assumes that the why of the embryo's existence is meaningless, it is problematic to make such an assumption in light of the marked differences between the world in 1973 and the one that we know today. (138) B. Embryonic stem cell research 1. A Temporary Compromise Just one step beyond embryo disputes is the issue of embryonic stem cell research, which has for years been extensively discussed in limited scientific and legal communities. The stem cell debate concerns frozen, leftover, or discarded embryos, as in Davis, but also involves the prospect of embryos being created solely for research. The issue of embryo research recently moved to the forefront of national attention when President George W. Bush announced that he would make a decision on whether the federal government would fund embryonic stem cell research. (139) Those opposed to stem cell research, largely pro-life advocates, maintain that such research involves the intentional destruction of life or potential life that cannot be tolerated. (140) Supporters of the research hail the enormous potential for medical advances, including possibly accelerated cures for various diseases, and contend that the benefit to society outweighs any loss or harm to the embryos. For months after the President's announcement, the opposing sides debated their positions in the media. In a long-awaited speech President Bush announced the official federal stem cell research policy--that the federal government would not fund research involving the destruction of embryos, but would continue funding for research on existing cell lines, where, in his words, the "life and death" decision had already been made. (141) The President's decision was praised by many on the right and the left as a fair decision that did no harm to their respective positions on the issue of abortion. (142) But it is unclear how long this perceived compromise on the stem cell issue will last. (143) It is difficult to imagine a set of facts in which the Supreme Court, faced with the same basic issue, could reach such a Solomonic result. Meanwhile, the potential for litigation involving these practices increases. (144) Roe is not explicitly at issue in the embryonic stem cell debate, but many have predicted that the Court's decision in Roe would ultimately be called upon to draw the defining line of life in such difficult situations. (145) Roe does not purport to define life in every conceivable application; yet the Davis court and later courts have persisted in applying Roe to situations assessing the value of prenatal life, including ex-utero embryos. (146) Some commentators have correctly noted that the perceived conflict in Roe--between a woman and the fetus is not present in the embryonic research debate. (147) There is simply no plausible reason why a definition of life created for use in the case of a woman with an unwanted pregnancy should be applied to human embryos created for research. Further, the rights approach of Roe subverts the question of value when dealing with the problems of the new frontier. With embryo research, the rights of the pregnant woman and/or intended parents largely disappear, and instead scientists advocate a right to freely conduct research. (148) The scientist's claim might not seem entirely plausible, but with a rights approach, the only real question is whether the scientist's claim is stronger than the right to which it is compared. Many people perceive life to exist on a continuum, with the value of life increasing as the preembryo turns into the embryo, which becomes the fetus, and when born, the baby. (149) If Roe made the case for the fetus seem weak, how then can one successfully advocate a right to life for each of several thousand frozen embryos? The basic understanding of a right is that it must belong to a cognizable rights holder. Pro-life advocates and others taking a rights approach against embryonic research, however, find themselves assigning a right to beings that, quite literally, do not yet exist. (150) But even if one maintains that embryos, like fetuses, have no rights as juristic persons, the conclusion that proposed research involving their destruction is constitutionally permissible does not automatically follow. To be sure, Roe's personhood analysis suggests that legislatures and courts in their common law capacity need not recognize or protect embryos until they become viable fetuses. (151) Yet Roe did not purport to consider the possibility of embryos being used or created for research purposes. 2. Future Challenges Philosopher Francis Fukuyama, after contemplating a "Brave New World" (152) in which research has evolved to the point of cloning, genetic selection, cross-breeding humans with other species and the seeming elimination of the distinctiveness of humanity, concludes that actions should be taken today to limit the research capabilities of tomorrow: | |
We do not have to accept any of these future worlds under a false
banner of liberty, be it that of unlimited reproductive rights or of
unfettered scientific inquiry. We do not have to regard ourselves as
slaves to inevitable technological progress when that progress does
not serve human ends. True freedom means the freedom of
political communities to protect the values they hold most dear,
and it is that freedom that we need to exercise with regard to the
biotechnology revolution today. (153)
| | Fukuyama's imperative addresses legislators and the public, but any legislation bearing on asserted reproductive freedoms will at some point have to pass constitutional muster. While many scientists and commentators plead lawmakers to avoid the thorny nettle of Roe and constant political turmoil, its application seems inevitable. (154) The Supreme Court will be called upon to decide whether this application continues to be warranted, or whether there is a better means with which to resolve these weighty issues. The stem cell debate is just one example of how Roe looms large in the background of many challenges. In Roe, Justice Blackmun rejected the view that life begins at conception, in part because technologies such as the morning-after pill, embryo implantation, and artificial insemination would create seemingly intractable difficulties, (155) Today, some of those technologies are posing the very problems to which he alluded, but Roe offers little help in resolving them. In light of the increasing prevalence of such practices-several of which I have discussed and others that may be on the horizon--it is likely that a case involving these issues will come before the Supreme Court. When such a case appears, it will be difficult for the Court to ignore the personhood conclusion in Roe. When the Court does decide the hypothetical case, the Court can affirm the entirety of Roe as decided in 1973, distinguish Roe, or reconsider the personhood conclusion in light of the problems of today. The common theme between the Roe Court's considerations and the practices discussed here is a simple one--whether and how the state can regulate the destruction of potential human life. And with the practices I have highlighted, the countervailing consideration of the impact on the pregnant woman, the reason that the asserted life has come to be, and the reason for the proposed destruction of life are all quite different from the foundation upon which Roe has been built. IV. A NEW APPROACH Having outlined some problems with the application of Roe in today's world, I will suggest how the Supreme Court may confront such a case. (156) A. Redefining Roe 1. Not Going Back to the Legislatures It may be useful to start with what I am not proposing. The fact that sensitive issues relating to the value of life are inextricably intertwined with the ongoing dispute over abortion leads many to conclude that any issue of the value of preborn life must be determined by the state legislatures. It is said that the legislatures are better able to respond to the views and desires of the people--to reflect their moral judgments in a way that the Supreme Court is neither empowered nor qualified to do. A major criticism of the decision in Roe is that it interrupted the compromise inherent in the legislative process, and continues to preclude society from moving forward on the issue of abortion. (157) Nevertheless, a determination that the opinion in Roe sweeps too broadly need not necessarily lead to the conclusion that the Supreme Court must take no position, and instead send the issue of prenatal value back to the legislatures. (158) If the scope of Roe's reach has been proved to have gone too far, then there is no reason that the Court cannot simply fix its mistake. (159) Casey proves that the Court is capable of making major changes to Roe while ostensibly maintaining Roe's "essential holding" intact. And although the Court could conceivably accomplish this goal without making any grand pronouncement about the value of embryos, saying nothing on the subject would leave the states free to take differing approaches to their valuation and treatment. (160) To the extent that a given legislature's regulation of embryos would be said to impinge on the reproductive rights of individuals and couples, the Court would be required to determine (eventually, if not in the instant hypothetical case) whether such a law is constitutional. In doing so, the Court would be squarely faced with the question of the valuation of the embryo. Granted, one could make the case that here, as with Roe, a declaration on the status of the embryo would be unnecessary. But it seems rather implausible for the Court to rule on the constitutionality of, say, embryonic research, (161) without making some statement about the value of the embryos. 2. "Special Respect" (or Other Intermediate Category) Assuming that Parts I and II show that the application of Roe in the new frontier leads to a serious valuation problem, and that the Supreme Court must remedy this problem, the next logical question is what standard must be used in the place of Roe's zero-value conclusion. The "special respect" designation, as used in Davis and as adopted by the National Institutes of Health Human Embryo Research Panel, (162) promises to supply some symbolic significance to the status of human embryos and similar forms of life or potential life. As shown earlier, however, the "special respect" designation has never been fully explored in a judicial setting, and the practical application of the term tends to lead to the same result as Roe's personhood conclusion. (163) This leaves the Supreme Court with the task of explaining what "special respect" or any other intermediate category between "full constitutional person" and "nothing" actually means. The Court could look to science, philosophy, religion, or some combination for an answer, but any of these approaches would potentially be vulnerable to the criticism that a value-laden judgment had been made. (164) Of course, that is exactly what is going on, and that is what makes Roe itself so controversial thirty years later. (165) To avoid this criticism, the Court could remain in its sphere of relative comfort, finding in the Constitution some resolution to this question. This time, the Court would no doubt be careful to avoid the strained analysis of Roe, and instead might find that human life or potential human life has value--not necessarily because it is guaranteed an absolute or almost absolute right to life, but because it is in the interest of those reading and living by the Constitution to say that it does. (166) A fundamental challenge to the search for a standard of value is the way in which we think about these issues. One reason that the absolute rights approach is so entrenched in the minds of so many is because it appears to be the only way to adequately protect life. Roe teaches the value of the fetus changes according to its development, particularly in its ability to breathe. But it also teaches, by implication, that the value of the fetus depends on the circumstance of the pregnant woman. A wanted child, born to an expectant couple, is a joy--it may continue its existence and be born into the world. An unwanted pregnancy resulting from bad circumstances is a burden and a hardship--it may be terminated. In the embryo dispute cases, the partner who seeks to preserve the embryos claims that the embryos should be given the chance to continue to exist, and perhaps, be born to one of the parents or to another couple. The contesting partner claims that it would be too uncomfortable to know that genetically related children exist somewhere in the world; thus, the embryos should be destroyed. In our jurisprudence, the value of life or potential life seems to be intrinsically tied to something we do or do not want, rather than being something that is. Yet those who believe that life or potential life is, either because of their belief in a Divine Creator, or in the primacy of Nature, or because of their views that all should be treated equally, or for any other of a number of reasons, simply reject the idea that a life should be valued according to the caprice of those who are most closely connected with it. (167) Any intermediate standard crafted to recognize the value of life should reflect this objection. B. Concerns About Tampering with Roe Some final thoughts are warranted on the issue of the significance of Roe and why it may be difficult for the Court to do anything that would appear to disturb what is left of Roe after Casey. 1. Moral Disagreement on the Question of Value In talking about the value of human life, one cannot escape the issue of morality. In the majority opinion in Roe, Justice Blackmun acknowledged that | |
One's philosophy, one's experiences, one's exposure to the raw
edges of human existence, one's religious training, one's attitudes
toward life and family and their values, and the moral standards
one establishes and seeks to observe, are all likely to influence
and to color one s thinking and conclusions about abortion. (168)
| | Although the authors of the joint opinion in Casey disavowed any reference to morality, a judgment about the regulation of abortion is necessarily a moral one--pertaining to "principles of right and wrong in behavior." (169) The fact that such a huge moral disagreement exists about the issue of abortion, and therefore, on the issue of the value of preborn life or potential life, poses a significant challenge to the Court. The Court would be understandably reticent to issue another decision that will be fervently opposed by at least half of the American population. But insight may be gained by considering why the regulation of abortion--and particularly whether the Supreme Court chooses to call the fetus a person--mean so much to so many people on all sides of the issue. Many pro-choice advocates defend abortion on the grounds of justice for women, the poor, and the oppressed classes. Legalized abortion means safer abortion for those who lack the means to go beyond the standard channels. (170) It is also said that less restrictive abortion laws give women more control over their reproductive lives, increasing opportunities for improvement and self-fulfillment. On this view, to exalt the symbolic value of the fetus or embryo above these practical concerns is myopic, even cruel. And although there are arguments against the assertions that liberal abortion laws are necessary to secure reproductive autonomy, (171) the subtext may be more important than the text. Law can dictate mores that make us more or less comfortable in the world. (172) In this way, law takes on an expressive function that speaks about what we, as a society, represent. (173) Particularly in the case of Supreme Court decisions, the judiciary is often deemed to be "speaking on behalf of the nation's basic principles and commitments." (174) That being so, pro-choice advocates likely feel that less restrictive abortion laws epitomize a world with more equality and individual freedom. Indeed, abortion has been a popular cause among liberal scholars, judges, lawyers, and advocacy groups. (175) Likewise, any challenge to the reproductive and scientific advancements offered by the new frontier would probably be viewed as a direct assault on this equality and freedom. (176) Pro-choice advocates likely perceive themselves as battling in a culture war of sorts, against an enemy whose obsession with Roe and the unborn is based upon one thing: the imposition of its morality upon society. (177) Pro-life advocates, on the other hand, likely feel that they are increasingly trapped in a society that does not reflect their values--a world in which millions of unborn children are dying with the sanction of the state and the nation's highest Court. (178) Roe symbolizes a distinct rejection of those values, with the Court's conclusion that the fetus is not a person under the Fourteenth Amendment as the crowning affront. The opinion in Roe purports to qualify what is meaningful life, deserving of constitutional protection, and so offends those who believe that all life should be regarded with the utmost value. (179) Virtually every strand of the Roe opinion dooms the pro-life position to the background. (180) In the legislative arena, relatively recent attempts to enact fetal pain legislation, fetal homicide statutes, and prohibitions on partial-birth abortion can well be seen as efforts to redeem the pro-life world view. (181) Still, those efforts are not likely to sideline the debate about Roe, given that many pro-life advocates view Roe as no less than a mirror into the soul of American culture. (182) The challenges of the new frontier build upon the collective unease of those who believe that too much life has already been lost in favor of a vision of freedom and autonomy. Perhaps the expressive factor is one reason why neither side will relinquish its vice grip on its position regarding abortion. With both sides competing for the Supreme Court's endorsement, it would seem difficult for the Court to decide a case in a way that would jeopardize Roe, even if the hypothetical future case cries out for such a decision. (183) But in recognizing the concerns of pro-choice and pro-life advocates, not all of which have been summarized here, as simultaneously practical and expressive, the Court might be better able to craft an opinion that actually addresses these concerns. If Roe's approach made an unpopular decision even worse, then the Court should give serious thought to any decision altering the opinion in Roe. This seems to have been the Court's design in its Casey opinion, although there was too much emphasis on stare decisis, with too little discussion of the competing interests presented by Roe and why the Court was choosing to affirm Roe's "essential holding." Nonetheless, in the thirty years since Roe, the twenty years since Webster, and the thirteen years since Casey, the Court has not succeeded (even a little) in dousing the flames of the abortion debate. (184) Thus the Court might well conclude that no matter how astute its opinion, it is completely powerless to control the extent of public disagreement with its decisions. 2. Concerns About the Legitimacy of the Court Finally, in modifying Roe, the Court would necessarily be concerned about its legitimacy, both with respect to stare decisis and the existence of a "national controversy." (185) The stare decisis question seems fairly simple, given the Court's opinion in Casey. The Court could distinguish Roe and Casey from the future case on the ground that abortion involves a special conflict not present in other settings--the conflict between a pregnant woman and a fetus. Under this outcome, the doctrine of stare decisis would not be implicated, and the Court's Roe and Casey decisions would remain intact. In a bolder move, the Court could declare that the personhood conclusion of Roe was mere dicta and not part of the holding of that case. Doctrinally this would not be very difficult, given the fact that the Court has not since Roe relied on the personhood conclusion. Further, the Court did not include fetal personhood as part of its summary of Roe in either Casey or Stenberg. Thus, in some ways, the Court would be merely explaining a step that it has already taken. The problem with this approach is that many assume that the personhood conclusion was critical to the outcome in Roe and believe that any alteration of that conclusion would seriously undermine Roe. Unless the Court is prepared to completely overrule Roe based on one of the three reasons given in Casey for overruling precedent, (186) then the Court must simply respond with its best case that the personhood conclusion was not part of Roe's "essential holding." As explained in Casey, the Court's legitimacy concerns extend beyond the issue of when the Court may overrule precedent. Roe is not the ordinary case, having been compared with Lochner v. New York (187) and Brown v. Board of Education. (188) The Supreme Court's view of its role in cases dealing with national controversies, as explained in Casey, may influence the Court's approach. In Casey, the Court seemed to suggest that it would not disturb controversial precedent so as to prove that the Court is impervious to political pressure. (189) If the Court maintains this position, and if it deems a limitation of the personhood conclusion to be a retreat from Roe, then this could be a significant obstacle. Ultimately, the Court should evaluate whether the substance of the change to be made is worth making, aside from whether it will signal some imperfection in the original decision, or some weakness in the face of extreme reaction to the decision. CONCLUSION The Supreme Court considered and decided Roe v. Wade in the context of a particular problem: the unintended or unwanted pregnancy. (190) And although the Court recognized that the boundaries of its decision reached out to potentially related issues such as artificial wombs, embryo implantation, and artificial insemination, the Court did not purport to resolve issues created by those technologies. Today society is much closer to the new frontier than in 1973, and it promises many changes in the way we think about life and reproduction. Two examples of the application of new frontier technologies--embryo disposition disputes and embryonic stem cell research--demonstrate that the assumptions underlying the Court's abortion decision in Roe are very different from the ones that underlie such new technologies. Nonetheless, lower courts persist in applying Roe and its conclusion that the fetus is not a person to all sorts of situations involving preborn or potential life. It is reasonable to suppose that in time, the Supreme Court will be faced with a decision that requires the Court to take a position on whether this application of Roe should continue. This presents the Court with the choice of renouncing or affirming the personhood conclusion of Roe, or completely distinguishing Roe from cases that do not involve abortion. Either way, there is considerable potential for controversy in the Court's decision. So what might cause the Court to take the monumental step toward curtailing what many assume to be Roe's "essential holding"? Presumably not a change in the Court's composition, creating a "doctrinal disposition to come out differently from the Court of 1973." (191) But perhaps the Court would be moved by a case or series of cases signaling that a change of approach is required. (1.) Nina Totenberg gave the luncheon address at a Constitutional Law symposium, "The Supreme Court's Most Extraordinary Term," held at Pepperdine University Law School in October, 2000. I seem to recall the story having been told with reference to Justice Blackmun rather than Justice Powell; nonetheless, a version of the story is also told in a biography by a former clerk and law school dean in JOHN C. JEFFRIES, JUSTICE LEWIS F. POWELL, JR. 347 (1994), and Nina Totenberg confirms that she is the source of the story found in Powell's biography. (2.) Justice Powell voted with Justice Harry Blackmun and the majority to strike down the abortion statute in Roe v. Wade, 410 U.S. 113 (1973). (3.) At twenty-one weeks, Samuel Armas had not yet reached a point known as "viability," meaning that the state could not prohibit an abortion. See Section I, infra; see also Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 860 (1992) (stating that viability occurs at around twenty-three to twenty-four weeks, or "at some moment even slightly earlier in pregnancy"). (4.) See Robert Davis, Hand of a Fetus Touched the World: Photo Shakes Up Abortion Debate, USA TODAY, May 2, 2000, at D8. According to a website detailing the story, the sutures used to close the incisions were thinner than a human hair. Paul Harris, Holding Hands, IRISH INDEP., Mar. 2, 1999, http://www.tripod.com/~joseromia/samuel.html. A similar photograph was taken of Sara Marie Switzer at twenty-four weeks. Pictures of the Year 1999, LIFE MAG. April 15, 2000, at 32. For a recent picture of Armas, see Claudia Kalb, Treating the Tiniest Patients, NEWSWEEK, June 9, 2003, at 48. (5.) These stories do not purport to summarize the entirety of the abortion debate, Justice Breyer's majority opinion in the Supreme Court's 2000 term partial-birth abortion case, however, suggests that many view the competing issues as precisely those encapsulated in the stories: | |
We understand the controversial nature of the problem. Millions of
Americans believe that life begins at conception and consequently
that an abortion is akin to causing the death of an innocent child
... Other millions fear that a law that forbids abortion would
condemn many American women to lives that lack dignity, depriving
them of equal liberty and leading those with least resources to
undergo illegal abortions with the attendant risks of death and
suffering.
| | Stenberg v. Carhart, 530 U.S. 914, 920 (2000). (6.) See generally LAURENCE H. TRIBE, ABORTION: A CLASH OF ABSOLUTES (2d ed. 1992). (7.). 410 U.S. 113 (1973). (8.) Cf. Jed Rubenfeld, On the Legal Status of the Proposition That "Life Begins at Conception," 43 STAN. L. REV. 599, 601 (1991) (arguing that a fetus cannot be deemed a person without consideration of the context in which that decision is being made). Likewise, it seems that Roe's personhood conclusion should not be imported into other areas of law without consideration of the context of the Court's decision in Roe. (9.) See MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 8 (1991). In my first year Contracts class, in response to an exam question exploring the "pros" and "cons" of the enforcement of surrogacy contracts, many students expressed the "pros" with ideas similar to those conveyed in one student exam: | |
If they [contracted] for it, they should be able to enforce it. The
surrogate mother has rights and she can do what she wants like have
an abortion. She has ability to do what she wants with her body. If
she wants to have a child to help another couple, she should be able
to do this as long as there is a valid contract. Even if she wants
to make [money] off of it, she has the freedom to [contract] for it.
Our country is about freedom and liberty.
| | (on file with author) (copied with permission). (10.) See Glendon, supra note 9, at 66. (11.) See Roe, 410 U.S. at 156. (12.) John Hart Ely, The Wages of Crying Wolf." A Comment on Roe v. Wade, 82 YALE L.J. 920, 926 (1973). (13.) See, e.g., Ruth Bader Ginsberg, Essay, Some Thoughts on Autonomy And Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375 (1985). Justice Ginsberg opines that Roe could have been justified under a theory of equal protection. See id. at 382-83, 386. Others have shared her view. See, e.g., Catherine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281 (1991); TRIBE, supra note 6. (14.) I emphasize "should" because it is clear that, as discussed infra at Section III, this aspect of the opinion currently has considerable vertical precedential effect. (15.) Black's Law Dictionary defines obiter dictum as "[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).". BLACK'S LAW DICTIONARY 1100 (7th ed. 1999). (16.) Of the appropriate reasons for reversal outlined in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), perhaps the prong concerning factual or legal developments making the rule obsolete would be applicable. See id. at 854-60. (17.) 476 U.S. 747, 779 n.8 (1986). (18.) See id. at 779 ("[Were the fetus a person] the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures."). (19.) See, e.g., Kass v. Kass, 91 N.Y.2d 557, 564 (1998) (dispute over cryogenically preserved embryos); Doe v. Shalala, 862 F. Supp. 1421, 1426 (D. Md. 1994) (class of embryos suing to enjoin research); Doe v. Irvine Scientific Sales Co., 7 F. Supp. 2d 737, 742 (E.D. Va. 1998) (embryos in tort action against laboratory); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (dispute over cryogenically preserved embryos) (discussed infra at Section II.A). (20.) 505 U.S. 833 (1992) (discussed infra at Section 1.A.3). (21.) 410 U.S. 179 (1973). (22.) In 1967, a conference sponsored by the Joseph P. Kennedy Foundation and the Harvard Divinity School was held in Washington, D.C., to promote public debate on the moral issues involved in abortion. See ELIZABETH MENSCH AND ALAN FREEMAN, THE POLITICS OF VIRTUE: IS ABORTION DEBATABLE? 110-11 (1993). About one year later, the Association for the Study of Abortion hosted a conference promoting the liberalization and repeal of restrictive abortion laws. See id. at 118. Both conferences featured speakers and attendees who were central figures in the abortion debate. The first conference produced and the second conference featured prominent works respectively advocating pro-life and pro-choice positions. See id. at 110-24. (23.) See Roe, 410 U.S. 113. Under the statute, a woman who obtained an abortion could not be prosecuted. Id. at 151. In Doe v. Bolton, 410 U.S. 179, a companion case decided at the same time as Roe, the Court invalidated a Georgia law which prohibited abortion except where abortion would endanger the life or health of the mother, where the fetus would likely be born with a birth defect, or where the pregnancy was the result of rape. See id. at 179-80. (24.) See Roe, 410 U.S. at 130-52. The Court explained the significance of its examination of history as a part of its effort to approach the issue of abortion without emotion: | |
Our task, of course, is to resolve the issue by constitutional
measurement, free of emotion and predilection. We seek earnestly
to do this, and, because we do, we have inquired into, and in
this opinion place some emphasis upon, medical and medical-legal
history and what that history reveals about man's attitudes toward
the abortion procedure over the centuries.
| | Id. at 116-17. (25.) See id. at 141-47. These materials appear to be the source of the trimester framework adopted by the Court. (26.) See id. at 152-53. The Court opined, without deciding, that the right of privacy might also be found in the penumbra of the Bill of Rights, as explained in Griswold v. Connecticut, 381 U.S. 479 (1965), or in the Ninth Amendment as one of the rights reserved to the people, as the District Court had determined. See Roe, 410 U.S. at 152-53. (27.) Roe, 410 U.S. at 153. (28.) See id. at 153-54. (29.) See id. at 154-56. (30.) See id. at 163-64. Viability refers to the point at which the fetus has the capability of "meaningful life" outside the mother's womb. Id. at 163. At the time of the Roe decision, viability was thought to occur at around twenty-eight weeks, in the third trimester. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 872 (1992). In Casey, the Court recognized that viability occurs at around twenty-three to twenty-four weeks, or perhaps slightly earlier. Id. at 860. (31.) See Roe, 410 U.S. at 158-59. (32.) See id. at 157-58. The Court recognized that the Fourteenth Amendment uses the word "person" three times, Id. The Court then listed other places in the Constitution where the word "person" is used, concluding that none indicate any prenatal application. See id. (referencing the listing of qualifications for Representatives and Senators, the Migration and Importation Provision, the Emolument Clause, Electors provisions, provisions outlining qualifications for the Presidency, Extradition provisions, the Fugitive Slave Clause, and the Fifth, Twelfth and Twenty-second Amendments). (33.) See id. at 157 n.54. (34.) Id. at 158. (35.) See id. at 159. Discussing state tort and property laws, the Court noted some protection for fetuses, but ultimately concluded that fetuses had not been legally recognized as persons "in the whole sense." Id. at 161-62. Critics of the opinion in Roe have observed that the Court, in establishing viability as the point at which states may regulate abortion to protect fetal life, necessarily "resolve[d] the difficult question of when life begins." Id. at 159. Yet others have seized on the language of the opinion to conclude that the personhood determination does not bind the states or Congress in determining fetal personhood outside the area of abortion. See, e.g., The Unborn Victims of Violence Act of 1999: Hearing on S.1673 Before the Senate Comm. On the Judiciary, 106th Cong. (2000) (Testimony of Gerald V. Bradley, Professor of Law, University of Notre Dame [hereinafter "Bradley"]. Support for this position is found in the Court's further statement that Texas could not override the rights of the pregnant woman simply "by adopting one theory of life." Roe, 410 U.S. at 162. Thus, the argument proceeds, a state may adopt a theory of life that recognizes fetuses as persons, so long as it does not override the right to abortion. See Bradley, supra. (36.) Roe, 410 U.S. at 152. (37.) See Note, What We Talk About When We Talk About Persons." The Language of a Legal Fiction, 114 HARV. L. REV. 1759 (2001) ("The absence of any coherent theory [of personhood] raises an inference that courts' determinations of legal personality are strongly result driven, with judges selecting whatever theories of personhood suit the outcomes they desire."). (38.) In the words of law professor and legal philosopher Ronald Dworkin, a strident proponent of abortion rights, "[pro-life advocates] felt they had been kicked in the stomach: a distant court had told them they had to condone what their instincts and religions told them was the wholesale murder of innocent unborn children." RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 7 (1993). (39.) 492 U.S. 490 (1989). (40.) But see Susan R. Estrich & Kathleen M. Sullivan, Abortion Politics: Writing for an Audience of One, 138 U. PA. L. REV. 119, 119-22 (1989) (arguing that predictions about Roe's future were largely "spun" by pro-choicers to galvanize feminists into action, and similarly used by pro-lifers to hearten their constituency). (41.) See Webster, 492 U.S. at 501. (42.) Id. (43.) Id. (44.) See id. at 504-06. (45.) See id. at 506-07. (46.) Id. at 506. (47.) Id. at 515-16, 519-20. (48.) See id. at 517-19. (49.) See id. at 518. This premise was revisited at length by the joint opinion of Justices O'Connor, Kennedy and Breyer in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 866 (1992). (50.) See Webster, 492 U.S. at 521. (51.) See id. at 521. (52.) See id. at 532 (Sealia, J., concurring). (53.) See id. at 537-60 (Blackmun, Brennan & Marshall, JJ., concurring in part and dissenting in part). (54.) 505 U.S. 833 (1992). At issue in Casey were several provisions of the Pennsylvania Abortion Control Act which required that a woman provide informed consent prior to having an abortion and that she be provided with information at least twenty-four hours prior to the procedure. See id. at 844. In the case of a minor, the Act provided that she must obtain a parent's consent, but could bypass that requirement by appearing before a judge (if consent could not be obtained). See id. The Act further required a married woman to sign a statement indicating that she had notified her husband. Each of these provisions contained an exemption for situations deemed to be medical emergencies under the Act. See id. The Act also imposed certain reporting requirements for abortion clinics. See id. (55.) Justice O'Connor first introduced the undue burden standard in her dissent in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 452-75 (1983) (O'Connor, J., dissenting). (56.) Casey, 505 U.S. at 846. The Court stated the essential holding in three basic parts: (1) a recognition of the right of the woman to choose to have an abortion before viability without undue interference from the State, (2) a confirmation of the State's power to restrict abortions after fetal viability provided that the law excepts pregnancies that endanger the woman's life or health, and (3) the principle that the State has legitimate interests in protecting the health of the woman and the life of the fetus from the beginning of the pregnancy, Id. (57.) See id. at 846-53. (58.) Id. at 851. (59.) Id. at 852. (60.) 381 U.S. 479 (1965). (61.) 405 U.S. 438 (1972). (62.) 431 U.S. 678 (1977). (63.) Casey, 505 U.S. at 852-53. (64.) See id. at 853. For the opinion that stare decisis was the Court's only reason for retaining Roe, see Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535 (2000). (65.) See Casey, 505 U.S. at 854-61. (66.) See id. at 861-69. The Court actually said that to the extent that the Court would lose its legitimacy by overruling Roe, so would the country be undermined in its ability "to see itself through its constitutional ideals." Id. at 868. (67.) See id. at 870-71. (68.) See id. at 872-78. The Court defined all undue burden as a regulation that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id. at 877. The Court upheld the provisions of the Pennsylvania Abortion Control Act that required a woman to provide informed consent prior to having an abortion and that required that she be provided with information at least twenty-four hours prior to the procedure. See id. at 881-87. To reach this conclusion, the Court explicitly overruled two post-Roe cases finding similar requirements unconstitutional, Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). Casey, 505 U.S. at 882-83. The Court also upheld provisions requiring a minor to obtain the consent of at least one parent or a judge if parental consent was not feasible. See id. at 899-900. The Court, however, found the provision requiring spousal notification to be invalid, discussing the problem of domestic violence and concluding that such a requirement would impose a substantial obstacle for many women. See Casey, 505 U.S. at 893-94. (69.) The Court retreated from the right of privacy discussed in Roe, speaking exclusively in terms of "liberty" guaranteed by the Fourteenth Amendment. See Casey, 505 U.S. at 846-52. But see id at 926-27 (Blackmun, J., dissenting in part). (70.) See, e.g., Nadine Strossen & Ronald K.L. Collins, The Future of an Illusion: Reconstituting Planned Parenthood v. Casey, 16 CONST. COMMENT. 587 (1999). (71.) Stenberg v. Carhart, 530 U.S. 914 (2000). (72.) This issue may return to the U.S. Supreme Court, as Congress has recently enacted and the President has signed the Partial Birth Abortion Act of 2003. 108 P.L. 105, 117 Stat. 1201 (2003); Richard W. Stevenson, Bush Signs Ban on a Procedure for Abortions, N.Y. TIMES, Nov. 6, 2003, at A 1. As of the day the Act was signed, a federal district judge in Nebraska had already declared the law unconstitutional as applied to the plaintiffs in the case, and federal district judges in San Francisco and New York were also considering the issue. See id. (73.) See Stenberg, 530 U.S. at 914. (74.) Id. at 921-22. (75.) See id. at 937-38. (76.) See id. at 924, 938-46. According to the Nebraska Attorney General, the partial birth abortion law was designed to prohibit only the D&X (dilation and extraction) procedure, which essentially entails breech delivery of the fetus up to the head, followed by "partial evacuation of intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus." Id. at 928 (quoting Am. Coll. of Obstetricians & Gynecologists Exec. Bd., Stmt. on Intact Dilation & Extraction (Jan. 12, 1997), App. 599-660.); see also id. at 940. Because the D&E (dilation and evacuation) procedure often involves a foot or arm being drawn through the cervix, the Court found that the statute's definition of partial birth abortion included D&E. See id. at 939. (77.) See id. at 938-39, 945-46. (78.) See id. at 946-47 (Stevens & Ginsburg, JJ., concurring). (79.) Id. at 951-52 (Ginsburg, J., concurring) (quoting Hope Clinic v. Ryan, 195 F.3d 857, 881 (7th Cir. 1999) (Posner, J., dissenting)). Many have taken this view of partial birth abortion statutes, as well as other regulations aimed at abortion clinics and providers. See infra note 181; see also Janet Benshoof, The Truth About Women's Rights, 6 WM. & MARY J. WOMEN & L. 423 (2000); Barry Yeoman, The Quiet War on Abortion, MOTHER JONES, September/October 2001, at 47. (80.) See Stenberg, at 954-55 (Scalia, J., dissenting). (81.) See id. at 956-57 (Kennedy, J., dissenting). (82.) See id. at 960, 962-63. Citing from the record, Justice Kennedy explained the D&X procedure in simpler but more graphic terms: | |
In the D&X, the abortionist initiates the woman's natural delivery
process by causing the cervix of the woman to be dilated, sometimes
over a sequence of days. The fetus' arms and legs are delivered
outside the uterus while the fetus is alive; witnesses to the
procedure report seeing the body moving outside the woman's
body.... With only the head of the fetus remaining in utero, the
abortionist tears open the skull.... The abortionist then inserts
a suction tube and vacuums out the developing brain and other
matter found in the skull.... The abortionist next completes the
delivery of a dead fetus, intact except for damage to the head
and the missing contents of the skull.
| | Id. at 959-60 (citations omitted). (83.) Id. at 962. In Hill v. Colorado, 530 U.S. 703 (2000), decided the same day as Stenberg, the Court rejected a group of abortion protestors' First Amendment challenge to a statute that criminalized their conduct. Kennedy dissented in that case as well, regarding the Court's decision as no less than insensitive given the asserted compromise reached in Casey. See id. at 791-92. Read together, Hill and Stenberg suggest that Justice Kennedy might not be so approving of Roe if the issue of abortion were revisited, notwithstanding his participation in the joint opinion in Casey. (84.) See id. at 951. (85.) See id. at 921. (86.) THE MORALITY OF ABORTION: LEGAL AND HISTORICAL PERSPECTIVES (John T. Noonan, Jr., ed., 1970). (87.) See id. at xiii-xvii. (88.) Id. at xv. (89.) See id. at xvii. (90.) Id. (91.) Dworkin has theorized that pro-life advocates do not actually recoil at the thought of a fetus dying in an abortion because they believe that the fetus is a person with full moral rights equal to others, but because they believe that all life has intrinsic value which should not be disturbed. See DWORKIN, supra note 38, at 11-13. Still, pro-life advocates have not relented from their position that a fetus is a life, a person, and a member of a politically unrepresented minority with an interest not to be killed. Cf., e.g., STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 310 n.6 (1993) (responding to Dworkin's assessment of pro-life beliefs with simply, "I disagree."). (92.) See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 789 (2d ed. 2002). (93.) See, e.g., Webster v. Reproductive Health Services, 492 U.S. 490, 557-58 (1989). Justice Blackman stated: | |
The result [of overruling Roe] ... would be that every year hundreds
of thousands of women, in desperation, would defy the law, and place
their health and safety in the unclean and unsympathetic hands of
back-alley abortionists, or they would attempt to perform abortions
upon themselves, with disastrous results. Every year, many women,
especially poor and minority women, would die or suffer debilitating
physical trauma, all in the name of enforced morality or religious
dictates or lack of compassion, as it may be.
| | Id. (94.) Graciela Olivarez, National Organization for Women member and the highest-ranking Latina in President Carter's administration, was appointed vice-chair of the President's Commission on Population and the American Future. In the commission's 1972 report, Olivarez denounced the view that abortion constitutes an act of beneficence toward the poor: | |
I am not impressed nor persuaded by those who express concern for
the low-income woman who may find herself carrying all unplanned
pregnancy and for the future of the unplanned child ... because
the fact remains that in this affluent nation of ours, pregnant
cattle and horses receive better health care than pregnant poor
women. The poor cry out for justice and equality and we respond
with legalized abortion.
| | THE COMM'N ON POPULATION GROWTH AND THE AM. FUTURE, POPULATION AND THE AMERICAN FUTURE 162 (1972) (separate statement of Grace Olivarez), quoted in Mary Krane Derr, Herstory, AM. FEMINIST, Summer 1998, at 18. (95.) See, e.g., Estrich & Sullivan, supra note 40, at 146 ("Imposing any 'undue burdens,' or indeed any burdens at all, on a woman's right prior to viability in the name of preserving life, though, is to say that a woman has a right and then to take it away. By definition, her right is to control her bodily autonomy even at the expense of potential human life."). (96.) See Judith Jarvis Thomson, A Defense of Abortion, 1 J. PHIL. & PUB. AFF. 47 (1971). For a discussion and critique of Thomson's view in a slightly different context, see Kevin Yamamoto & Shelby A.D. Moore, A Trust Analysis of a Gestational Carrier's Right to Abortion, 70 FORDHAM L. REV. 93, 165-84 (2001). (97.) THOMSON, supra note 95, at 49; TRIBE, supra note 6, at 130. In Tribe's view, requiring this sacrifice of a woman and not a man because of a woman's unique reproductive capability amounts to gender discrimination in violation of the Fourteenth Amendment. See id. at 132-35. (98.) See Thomson, supra note 96, at 62-64. The term "Good Samaritan" is fairly common in the American legal tradition and refers to a person who gives his time and energy for another without compulsion of law or the expectation of remuneration. Taking Thomson's analogy to all even further extreme, one law professor has argued that in any given pregnancy, the fetus commandeers a woman's body to make her a "captive Samaritan," that is, one who does not have a choice of whether to become a Good Samaritan. EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK, FROM CHOICE TO CONSENT 11 (1996). The story of the good Samaritan appears in Luke 10:25-37. (99.) Recognizing that this fact poses an obstacle to acceptance of Thomson's theory, McDonagh attempts to conceptually divorce pregnancy from any conscious choice by the man or woman involved. To that end she makes the somewhat specious claim that a fertilized ovum, and not sex, causes pregnancy. See MCDONAGH, supra note 98, at 40. (100.) For a direct response to the "tacit consent" theory, see David Boonin-Vail, A Defense of "A Defense of Abortion ": On the Responsibility Objection to Thomson's Argument, 107 ETHICS 286, 288-300 (1997). It should be noted that some feminists assert that little or no sex can be presumed voluntary given societal, cultural, and physical pressures on women to succumb to sexual intercourse. See, e.g., MacKinnon, supra note 13, at 1312 ("Women are socially disadvantaged in controlling sexual access to their bodies through socialization to customs that define a woman's body as for sexual use by men. Sexual access is regularly forced or pressured or routinized beyond denial."). (101.) Thomson, supra note 96, at 59. (102.) See id. (103.) Id. (104.) Id. (105.) See, e.g., MARK A. GRABER, RETHINKING ABORTION: EQUAL CHOICE, THE CONSTITUTION, AND REPRODUCTIVE POLITICS 27 (1996) ("Barring rape, sexual abstinence is an infallible form of birth control."). Graber challenges pro- choice arguments regarding reproductive autonomy, noting that "pro-choice claims that early cutoff dates for abortion deny women the time necessary to make responsible abortion decisions do not take seriously anti-Roe assertions that most persons are already free to consider at length 'ethical and personal issues arising from marriage and procreation." Id. (citation omitted). (106.) Richard Langer, Abortion and the Right to Privacy, 23 J. SOC. PHIL. 23-51 (1992). (107.) Id. (108.) LESLIE CANNOLD, THE ABORTION MYTH: FEMINISM, MORALITY, AND THE HARD CHOICES WOMEN MAKE (1998). Cannold catalogs her survey of forty-five women regarding their answers to questions involving the morality of certain hypothetical abortion situations. Cannold sets out to prove that in most cases, women have abortions to prevent the birth of a child under circumstances that would not be good for the child--that women kill their babies out of love. See id. at xviii, 126-36. (109.) See id. (110.) "While there are clearly some abortions that make feminists distinctly uncomfortable, the language of rights, and the belief that the only wrong in abortion lies in denying a woman the freedom to have one, makes it difficult for them to say why." Id. at 44-45. (111.) Naomi Wolf, Rethinking Pro-Choice Rhetoric: Our Bodies, Our Souls, THE NEW REPUBLIC, October 16, 1995, at 26. (112.) Cf. TRIBE, supra note 6, at 224-25. | |
If, on reflection, one's pro-choice views rest on a sense that a
woman should be allowed to prevent her fetus from becoming a child
even if it could become one without the woman's having to undergo
a prolonged pregnancy, then perhaps, in a technologically
transformed world, those views would have to yield to the claim to
life of all but the most undeveloped fetus.
| | Id. (113.) See CNN Special Report, Roe v. Wade 25 Years Later: Who is 'Jane Roe'?, CNN.COM (1998), at http:/ /www.cnn.com/SPECIALS/ I 998/roe. wade/stories/roe.profile. (114.) See id. (115.) For this reason, some have argued that questions regarding the existence of life in the womb and the morality of abortion are inherently religious and thus should not be part of any court decision, state regulation, or public discussion on the issue. See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490, 565-66 (1989) (Stevens, J., dissenting) ("Our jurisprudence ... has consistently required a secular basis for valid legislation."). Others have disagreed, however, acknowledging that the Constitution does not exclude deeply held religious beliefs from the realm of public discourse. See CARTER, supra note 91, at 254-55; TRIBE, supra note 6, at 116 (reversing all earlier expressed view). (116.) See Hearing on Human Cloning Before the Senate Comm On Commerce, Science, and Transportation, Subcomm. on Science, Technology, and Space (statement of Ms. Margaret Colin, Actress) (May 2, 2001), http://www.commerce.senate.gov/ hearings/0502col.PDF; see also Feminists For Life Homepage, at http:// www.feministsforlife.org (last visited Nov. 5, 2003) (Feminists for Life describes itself as a "nonsectarian, nonpartisan, grassroots organization that seeks equality for all human beings and champions the needs of women."). Recently, Feminists for Life launched a campaign entitled "Women Deserve Better" to promote the desirability of social programs designed to help pregnant women and mothers. See Women Deserve Better Homepage, at http://womendeservebetter.com (last visited Nov. 5, 2003); see also Press Release, National Women's Coalition for Life, National Women's Coalition for Life Statement of Commitment (April 3, 1992), at http://www.priestsfodife.org/articles/ nwclstmt.html (deseribing views of organization of several nonsectarian pro-life organizations) (last visited Nov. 5, 2003). (117.) See Press Release, National Women's Coalition for Life, National Women's Coalition for Life Statement of Commitment, (April 3, 1992), available at http://www.priestsforlife.org/articles/nwclstmt.html (last visited Nov. 5, 2003) (on file with author). (118.) See, e.g., Francis Kissling & Denise Shannon, Abortion Rights in the United States: Discourse and Dissension, in ABORTION LAW AND POLITICS TODAY 150 (Ellie Lee ed., 1998) ("These days, couples and doctors are focused on treating infertility, not on avoiding pregnancy."). (119.) I use the term "embryonic stem cell research" to refer to the harvesting of stem cells from living embryos for the purpose of research and, in some cases, implantation into other individuals, resulting in the destruction of the embryos. (120.) The abortifacient drug RU 486, available in France for several years, was approved by the FDA in 2000, and will no doubt continue the heated debate about abortion. See Debate Heats up With Approval of Abortion Pill, CNN.COM (Sept. 28, 2000), at bttp://www.cnn.com/2000/HEALTH/womenJ09/28/abortion.pill.reax/index.html. Additionally, it is difficult to mention stem cell research without raising the specter of both therapeutic and non-therapeutic human cloning, though neither is discussed here. Other practices such as selective abortion and ultimately "gene" selection for hair and eye color and sexual orientation have been predicted but to date are not a part of mainstream reality. See FRANCIS FUKUYAMA, OUR POSTHUMAN FUTURE 72-82 (2002). (121.) In this article, I use the terms preborn life, prenatal life, human life, and potential human life interchangeably. Following the Supreme Court's implicit example in Roe v. Wade and its progeny, I use the term "potential" simply to indicate the significant disagreement on the issue. See 410 U.S. 113 (1973); Webster v. Reprod. Health Servs., 492 U.S. 490 (1989); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). (122.) The following is a helpful description of the in vitro fertilization ("IVF") process, which explains the developmental stages of the embryo: | |
One sperm fertilizes one ovum. The result of this cellular fusion
is a single cell known as a "zygote." ... The zygote proceeds to
multiply by cellular replication.
...
If fertilization is accomplished outside the body [by IVF], the
cellular mass is cultured until it reaches the eight cell stage
(about seventy-two hours after fertilization.) At this point, the
cellular structure (now called a blastomere) may be placed into a
uterus or into a fallopian tube in hopes that it will implant into
the uterine wall and continue developing.
Alternatively, at the eight cell stage, the blastomere can be
frozen in liquid nitrogen. If frozen, the mass is generically termed
a frozen embryo. The frozen embryo can later be thawed and placed
into a fallopian tube or into a uterus to enable implantation and
development into a human fetus....
Medical nomenclature changes from an eight cell blastomere to a
cystic blastocoele and then to an embryo. Biologically the
blastocoels becomes an embryo when a condensation of cells, known as
the "primative streak" appears; the primative streak develops about
ten to twelve days after fertilization.
When the developing embryo reaches a crown-rump length of five
centimeters (roughly two inches), it weighs approximately eight
grams. This occurs at the end of the eighth week when the embryo has
developed into a fetus
| | Weldon E. Havins & James J. Dalessio, The Ever-Widening Gap Between the Science of Artificial Reproductive Technology and the Laws Which Govern That Technology, 48 DEPAUL L. REV. 825, 832-33 (1999). (123.) 842 S.W.2d 588, 589 (Tenn. 1992). The U.S. Supreme Court denied review in Stowe v. Davis, 507 U.S. 911 (1993). (124.) See Davis, 842 S.W.2d at 590. When the case began in the trial court, Mary Sue Davis desired to have the embryos implanted and give birth to them herself. By the time the case reached the Tennessee Supreme Court, however, she was remarried and no longer wanted the embryos. (125.) See id. at 592. (126.) Id. at 596-97. (127.) Relying on medical testimony, the trial court viewed the embryos as "children in vitro," and thus held that it was in the best interest of the children to be born rather than destroyed, Id. at 594. (128.) See id. at 595. (129.) See id. at 604. (130.) See A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000); J.B.v. M.B., 783 A.2d 707 (N.J. 2001); Kass v. Kass, 673 N.Y.S.2d 350 (N.Y. 1998). (131.) See Daniel I. Steinberg, Note, Divergent Conceptions: Procreational Rights and Disputes Over the Fate of Frozen Embryos, 7 B.U. PUB. INT. L.J. 315, 330 (1998) (noting that "special respect" designation yields the same results as a "pure property" designation). (132.) One writer who rejects the "person" designation but agrees that the "special respect" category is appropriate for embryos offers the following advice: | |
It may be too much to expect the law to be responsive to all these
ambiguities-at least immediately; but our ethical thinking in this
area needs to take them into account. We are dealing here with
issues in which our thinking must be stretched to provide nuanced,
sensitive ethical guidance. It would be too heaving handed to
prohibit development of this technology because we do not have a
ready set of rules for dealing with its ethical dimensions. It is
simplistic to thrust these decisions into the procrustean bed of
our moral rules for dealing with already born children. Instead,
we must undertake the task of sorting through the complexities and
ambiguities of these unprecedented human dilemmas and attempt to
come to consensus on the courses of action that maximize all the
values involved. Casuistry (in the best sense) is called for, since
we have a moral landscape before us that has been heretofore
uncharted and that must be filled in through the most careful and
sensitive analysis of all of its features.
| | Glen C. Graber, The Moral Status of Gametes and Embryos: Storage and Surrogacy, in HEALTH CARE ETHICS: CRITICAL ISSUES FOR THE 21ST CENTURY 8, 13 (John F. Monagle & David C. Thomasma eds., 1998) (adopting the conclusions of the Ethics Committee of the American Fertility Society regarding the status of the preembryo). It seems equally simplistic to apply Roe's assumptions about personhood to determine the value of the life of the embryo and the consequences for its treatment. (133.) Roe, 410 U.S. at 153. (134.) See 505 U.S. at 852-53; see also supra Section I.A.3. (135.) See Thomson, supra note 96, at 48-50. (136.) Casey, 505 U.S. at 853; see also supra Section I.A.3. (137.) See supra Sections I.A., I.C.; see also TRIBE, supra note 6, at 130 ("A woman denied the right to decide whether or not to end a pregnancy is not merely being asked to refrain from killing another person but being asked to make an affirmative sacrificed, and a profound one at that, in order to save that person."). (138.) Newer forms of surrogacy utilizing assisted reproductive technologies contravene Roe's assumptions and raise similar concerns. Since 1973, when Roe was decided, surrogacy involving in-vitro f |
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