Chapman Law Review
PRO [WHOSE?] CHOICE: HOW THE GROWING RECOGNITION OF A FETUS’ RIGHT TO LIFE TAKES THE CONSTITUTIONALITY OUT OF ROE
Copyright (c) 2009 Chapman Law Review; Rachel Warren
Roe v. Wade’s granting of constitutional protection for the right to terminate an unwanted pregnancy was, in many ways, just the beginning of the true abortion rights debate. The rights of the unborn are a main issue in this debate–mainly whether they have rights as a human person that could protect their lives from ending before birth. While the Court has since declined to officially and fully address the issue, there is a growing recognition of the personhood of the unborn child both from a medical and social standpoint. One cannot help but wonder what impact the expanding recognition of fetal rights will have on the already shaky future of Roe.
This Comment will argue that recent trends in legislation and modern scientific development call for the fulfillment of Roe’s own acknowledgement that the right to life will “collapse” the right to an abortion. Part I lays out the history of abortion jurisprudence, from the cases predating Roe, the Roe decision itself, and finally the cases following Roe. Part II establishes the widespread acceptance of fetal humanity and rights in both science and law, as well as the likelihood that abortion jurisprudence is ripe for upheaval. Part III then calls attention to the unavoidable competing interests of mother and child which the Court must address, as well as preliminary solutions anticipated by others. Part IV concludes that, when weighing these conflicting interests, the right to life must prevail over the right to an abortion.
I. History: Roe v. Wade and its progeny
A. The Road to Roe
Historically, the road leading to the Court’s landmark decisions in Roe v. Wade and Doe v. Bolton was built upon the Fourteenth Amendment’s right of privacy. Eight years before Roe officially constitutionalized the practice of abortion, the Court extended the right of privacy to the use of contraceptives by married couples in Griswold v. Connecticut. This decision marked the first time the Court expanded this right to reproductive decisions. The Court defended the right of privacy within the context of a private activity between spouses within their home, but never addressed practices independent of marriage or outside the home.
The leap from scrutinizing contraceptive restrictions to abortion laws came six years later when the Court addressed a statute that criminalized abortions unless it was “necessary for the preservation of the mother’s life or health.” In United States v. Vuitch, the Court held that a District of Columbia statute was not vague and broadened permissible abortions by expanding the term “health” to include both physical and psychological well-being. The majority did not delve into a privacy rights analysis for this particular statute. However, Justice Douglas’ dissent suggested that a “compelling personal interest in marital privacy” also included “the limitation of family size,” thus giving the Griswold holding a new possible application.
While a decision in Roe was pending, the Court briefly turned back to contraceptive restrictions in Eisenstadt v. Baird and expanded Griswold to include the use of contraceptives by unmarried individuals. Eisenstadt was also significant for abortion rights, as the Court laid groundwork for extending the right of privacy from simply preventing a pregnancy to terminating a pregnancy by asserting that “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Building on these principles, the Court delivered its decisions in Roe v. Wade and Doe v. Bolton in 1973. In this pair of cases handed down on the same day, the Court granted constitutional protection for abortions and rejected the notion of an unborn child’s status as a person under the Fourteenth Amendment, and hence, its right to life.
B. The Landmark Decisions: Constitutional Right of Abortion Solidified
Roe v. Wade and Doe v. Bolton arose out of state statutes that, similar to the one upheld in Vuitch and found in the majority of the states, prohibited abortions except in situations where it was necessary to save the mother’s life. In a 7-2 vote, the Roe Court invalidated the statute and held that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty . . . [or] in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Thus, the constitutional right to an abortion was established.
But what about the constitutional right to life? The competing interest of fetal life turned on the Court’s decision as to whether the fetus was a person and therefore also had protection under the Fourteenth Amendment. One might expect that the right to live becomes inherent once that life begins. However, Justice Blackmun specifically declined to address the issue, writing that the absence of a consensus in scientific and sociological ideology meant that the Court “need not resolve the difficult question of when life begins.” Instead, the Court simply held that the use of the word “person” within the Fourteenth Amendment referred to only post-birth. As such, any interest in the protection of the fetus could not be considered compelling enough to legitimize restrictions through the entire pregnancy.
While the unborn child could not assert any rights, the Court recognized that this newly-established “fundamental right” to an abortion was qualified and therefore subject to possible restrictions that served a compelling state interest. The Court again refused to use the beginning of life as a threshold and instead held that any state interest in preserving the life of the unborn would not be sustained until the fetus reached the point of what Justice Blackmun called “viability”–when the child could “live outside the mother’s womb and ultimately function as a contributing member of society.”
Although science at that time was unclear as to when “viability” began, the Court set standards based on “present medical knowledge” of the trimester progress of the pregnancy and declared that viability was reached only after the first trimester. Within the first trimester, no state interference was permissible; any decision to abort the pregnancy was left to the mother and her physician. In the second trimester, the state may begin to assert regulations, but only if reasonably related to the mother’s physical well-being. Even into the third trimester when the state interest becomes compelling, any regulations must contain an exception “to preserve the life or health of the mother.”
Significantly, however, the Court left the door open to revisit the issue upon more scientific evidence as to the personhood of the fetus, stating that “[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Moreover, the Court stated that if the personhood of the fetus were established, the case for abortion rights “of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [Fourteenth] Amendment.”
In Doe v. Bolton, the Court built upon Roe’s newly-founded principles and expanded Vuitch to define “health” as including “all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient.” The significance of this holding is that states were now severely limited in establishing any compelling interest in restricting Roe’s constitutional right.
C. The Aftermath: Regret and Calls for a Re-Visitation
In the decades that followed Roe and Doe, the Court continued to expand abortion rights based on the unquestioned principles of the right of privacy and non-person fetal character. These expansions included striking down requirements of spousal or parental notification, scrutinizing attempts to restrict public funding for non-therapeutic abortions and narrowing the requirements for informed consent. Within a few years, the Court again addressed the viability issue, reiterating that the health of the woman would always prevail over the life of the unborn child.
Even in affirming Roe and Doe, the holding and reasoning began to be questioned by the Court itself. A decade after Roe, medical technology had advanced enough to detect “viability” as early as twenty weeks. As a result, in City of Akron v. Akron Center for Reproductive Health, three Justices–O’Connor, White and Rehnquist–voted to discard the use of Roe as a precedent. Justice O’Connor criticized the trimester framework as “completely unworkable” because the stages of pregnancy would always “differ according to the level of medical technology available.”
Another significant criticism of Roe arose in Thornburgh v. American College of Obstetricians & Gynecologists. Chief Justice Burger, who had concurred in Roe, now filed a dissenting opinion in which he called for its reexamination. Chief Justice Burger expressed his regret that the concerns listed in the Roe dissents–endorsement of “abortion on demand” and the invalidation of any interest to protect fetal life–had now become an unwanted reality. Justice White attacked Roe’s illogical viability standard, pointing out that “the State’s interest, if compelling after viability, is equally compelling before viability.” Justice Stevens, though concurring in the majority opinion, took the opportunity to explain further that the right to life would trump the right to abortion in all states if the personhood of a fetus were to be recognized, stating:
[I]ndeed, if there is not such a difference [between a child and a fetus], the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures. And if distinctions may be drawn between a fetus and a human being in terms of the state interest in their protection– even though the fetus represents one of “those who will be citizens”–it seems to me quite odd to argue that distinctions may not also be drawn between the state interest in protecting the freshly fertilized egg and the state interest in protecting the 9-month-gestated, fully sentient fetus on the eve of birth. Recognition of this distinction is supported not only by logic, but also by history and by our shared experiences.
This logical reasoning seems to have resonated when the Court found itself addressing the viability issue again only a few years later in Webster v. Reproductive Health Services. The Court adopted the City of Akron and Thornburgh dissents in admitting that its constitutional construction of Roe’s trimester system was “unsound in principle and unworkable” and thus stare decisis should not be invoked to uphold it.
The Court stopped short, however, of overruling Roe. In admonishing the majority for failing to do so, Justice Scalia pointed out that Roe itself precluded any state from attempting to enact an identical statute, and therefore Roe would only ever “be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.”
One of these disassembled “doorjambs” came with Planned Parenthood v. Casey. The plurality opinion rejected Webster’s outlook on stare decisis and announced that Roe was not “unworkable” despite its “engendered disapproval” and thus upheld Roe’s viability standard. Yet, its refusal to overturn Roe was based solely on “precedential force” rather than the “soundness of Roe’s resolution of the issue;” the Casey opinion never affirmed that Roe was a correct constitutional interpretation. Such an omission subtlety, but quite tellingly, distances the Court from Roe’s reasoning and provides evidence of its recognition of the landmark decision’s flaws.
Most significant to abortion jurisprudence applicability, the Casey Court did not label abortion as a “fundamental” right. Instead, the Court acknowledged that Roe’s progeny had vastly ignored the state’s legitimate interest in protecting potential life because the rigid trimester framework made it nearly impossible for any regulation to be imposed within the first twelve weeks of pregnancy. The Court attempted to repair this flaw by replacing Roe’s strict scrutiny standard with an “undue burden” test. This new standard permits states to enact regulations with the “purpose or effect” to protect potential life insofar as it does not place a “substantial obstacle in the path of a woman’s choice.” As a result, state regulations are more likely to pass scrutiny.
Casey’s first major application by the Court was in Stenberg v. Carhart. Here, the Court struck down a partial-birth abortion ban on the grounds that it placed an undue burden in the woman’s path to getting the abortion. Because this procedure, known as Dilation and Extraction (“D&X”), could be performed pre-viability, and because the language of the statute could be confused for a permissible pre and post-viability procedure called Dilation and Evacuation (“D&E”), the Court found that the statute posed an undue, and thus unconstitutional, burden. The Court ignored the obvious viability issue, even though the child would have survived out of the womb had the doctor not killed her before delivery was complete.
In response to Stenberg, Congress passed the Partial-Birth Abortion Ban Act of 2003, which remedied the flaws in the Nebraska statute by clearly describing the procedure so as not to be confused with D&E. Congress also provided an exception to save the mother’s life and, unlike the state legislature, successfully cited findings that the procedure would never be medically necessary to preserve the woman’s health. Thus, when challenged in Gonzales v. Carhart, the Court was obliged to find the undue burden in Stenberg remedied and upheld the ban. In addition to making strides towards protecting the unborn child, Gonzales also disassembled another Roe “doorjamb” by accepting the absence of a health exception. The Court found the exception to save the mother’s life sufficient, even though it essentially requires the woman to go to court first. This is a far cry from Roe’s establishment of abortion on demand. While concurring in the majority, Justice Thomas–joined by Justice Scalia– reiterated that “the Court’s abortion jurisprudence, including Casey and Roe . . . has no basis in the Constitution.”
It is apparent that the abortion issue is as ripe as it has ever been. Casey has re-opened the door to fetal rights, and Roe itself admitted that the legal status of abortion rights should change upon a better understanding of “when life begins.” Thus, an understanding of today’s scientific progress and the state’s acceptance of the unborn child’s personhood has a profound impact on the abortion issue. With the trend moving toward recognition of fetal humanity, a fundamental issue arises which cannot be ignored in an inevitable reevaluation of Roe: does a woman’s right to privacy truly outweigh a child’s right to live?
II. Current Developments: The Rejection of Roe and Acceptance of Fetal personhood
Within the Roe opinion itself, Justice Blackmun’s majority admitted that its rejection of the personhood of–and the constitutional protection for–the life of the fetus was related to the fact that “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus.” While there may not have been such a consensus at that time, the passing of thirty-six years has allowed the expansion of medical technology and social understanding to close this gap. Today, there is a trend toward recognizing the unborn as both a human as well as a person afforded lawful protection. Modern scientific advances in the understanding of human development show that the fetus is indeed a human being from her first day of existence. Societal values as reflected in current state laws show trends towards fetal personhood and citizenship–thirty-six states consider the killing of the fetus a form of homicide. This is an increase from twenty-seven states just five years ago. Further, even several Supreme Court Justices who dissented in Stengerg have expressed recognition of fetal humanity. These developments, coupled with the ongoing cumulative criticism of Roe’s reasoning, call for a reevaluation of the abortion rights issue with new consideration given to the life of the unborn.
A. The Widespread Criticisms of Wrongful Reasoning
An argument for fetal personhood would be moot if Roe and its progeny were universally hailed as an accurate constitutional application. As discussed above, however, the opinion sparked regret and calls for an overturning by the Justices themselves. Congress attempted to take matters into its own hands and tried to pass constitutional amendments to overrule and reverse the case. While both governmental attempts have yet to be successful, scholarly criticism continues to unravel the constitutional flaws. Scholars have overwhelmingly shown that the history of abortion law laid out by Justice Blackmun in Roe is inherently flawed. The grounding for Roe is said to be “untrustworthy and essentially worthless.” Scholars are nearly unanimous in recognizing that the primary purpose of anti-abortion laws was to provide protection for the unborn. For Roe to conclude otherwise was “fundamentally erroneous.” Moreover, notable constitutional law scholars have asserted that Roe has no constitutional foundation.
Indeed, Justice Blackmun’s conclusion that a fetus is not a constitutional “person” was based on his assertion that the State failed to cite a case where the fetus was given such status. However, there was in fact a federal case holding just that–a case cited in the Roe opinion itself. The case was Steinberg v. Brown, where the federal district court in the Northern District of Ohio had declined to extend the Griswold reasoning to abortion rights because at that point, “the preliminaries have ended, and a new life has begun. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.” Moreover, there were more than fifty cases on the books, both federal and state, recognizing that the unborn child had explicit or implicit personhood. The Court had, and still has, no constitutional prohibition to declare a fetus a person.
Thus, Roe and its progeny sit on shaky ground. If a consensus on fetal humanity can be established, then the Court must stay true to Justice Blackmun’s admission and not only revisit, but also overturn, the infamous opinion.
B. Scientific Evidence of Fetal Humanity
To grasp the true significance of scientific developments, one must first become familiar with the state of the medical understandings before Roe. Historically, the commonly accepted signifier of human life was known as “quickening,” the point at which the mother could feel the baby move. The belief was that once quickening was detectible, the unborn must have received a soul. The only reason quickening was ever a standard was because this was the point at which people could determine that the fetus was alive–and because it was alive, it was considered human. As more biological facts of human development were discovered, the quickening theory was dismissed. Instead, scientific technology has lead to the medical conclusion that human life starts at conception.
1. The Beginning of Life
Functions that have traditionally been used to define “life” have been discovered to occur well within the first trimester, before the mother may even know that she’s pregnant. The baby’s heartbeat is detectible by the eighteenth day. Brain cells are developed within the child’s first two weeks, while actual brain activity has been monitored by the fifth week. There is evidence that an unborn child can feel pain within eight weeks–meaning that the child can, in fact, feel pain during even the earliest abortions.
2. Life that is Human
Today, the scientific and medical community has widely recognized the existence of human life from the very moment of conception. Many contemporary human embryologists maintain that a new human being comes to be at sygnamy (fertilization), which is the point at which the maternal and paternal chromosomes merge to form a set. Indeed, research shows that even after initial fertilization, “[n]o substantial changes take place . . . [the child] is the same individual organism as the adult into whom it later develops.” This means that once the chromosomes have merged in sygnamy, there is no further genetic information needed to “make” the unborn child into an individual human being. The only things she needs for growth and development are oxygen, food, water and healthy interaction with her environment.
The evidence of human life continues to mount in the early stages of development. Within five or six days of conception, the child has entered the “blastocyst” stage in which she has fully unique human DNA. A study of the blastocyst stage shows that the cells are capable of becoming only the specialized cells in the human body. While it may be tempting to simply brush off the presence of human DNA as merely “potential life,” biologists have refuted this position. Instead, the modern understanding of biologists is that the discovery of human DNA after just a few days irrefutably demonstrates that the child, no matter how small, “is human life; it is not potential life or potentially human life.”
Thus, “[i]t is scientifically correct to say that an individual human life begins at conception, when egg and sperm join.” This is no theory: scientific proof of a separate embryonic personhood is an indisputable and fundamental truth–a human being exists from conception. The official labels of “blastocyst” or “fetus” matter not–the terms are descriptive of a stage of human life development, similar to the labels of “infant” or “adolescent.”
Science can only go so far in the argument for constitutional protection for the unborn. While it can establish humanity, the law itself must recognize a personhood deserving of protection. As will be shown next, an increase in scientific biological knowledge of the development of the unborn has historically led to more and more restrictive abortion prohibitions.
C. Societal Recognitions of Fetal Personhood
Historically, common law explicitly recognized that the killing of an unborn child was homicide. The crime was, however, generally placed within the realm of manslaughter rather than of murder. The reason for this downgrading is that prior to modern scientific developments, the popular theory of quickening was applied. Contemporary laws have, however, reflected an expansion in the rights of the unborn, including the classification of fetal homicide as murder. If Roe was right, one might expect the opposite trend. The growing rate speaks for itself. In 2004, twenty-seven states deemed the killing of a fetus to be criminal homicide. By the following year, that number had risen to thirty-one. Today, thirty-six states have such laws. At this rate, every state could have such a law in less than a decade. Such fetal endangerment prosecutions reflect a desire to protect the unborn. This trend has manifested itself in both state and federal laws.
1. State Criminal Laws
After Roe held that a pre-viable unborn child is not a person under the Constitution, the opposite occurred in state criminal law. In refusing to take guidance from the Supreme Court’s viability standard for human recognition, twenty-four states have extended legal protection for the life of the unborn, regardless of the stage of pregnancy. Arizona acted first, amending its criminal law provisions to include protection for the fetus without any viability requirements. Twenty-three other states have since followed, the majority of which acting after Casey’s re-opening of the door to the state’s interest. Thirteen more grant protection once the child has reached a specified stage of development of anywhere from seven weeks to viability.
California’s murder statute is a good example of side-stepping Roe’s findings to recognize the killing of a fetal person. The State’s fetal protection against criminal acts extends to the unborn child of at least seven weeks old. The original statute had no reference to the unborn, but was added to correct a California Supreme Court ruling that did not allow a defendant to be found guilty of murder for killing a fetus. While California’s courts initially followed Roe’s viability requirement and defined fetal murder as occurring only when the child would be able to survive on its own, in 1994 this position was abandoned with a recognition that Roe’s principals were “simply inconsistent” with fetal homicide statutes.
Such a trend is truly a modern movement with society “moving briskly toward the recognition of the personhood of the unborn.” As biologists established a better understanding of human science, it is no wonder that criminal liability has followed suit. The states’ respect for the humanity of the fetus has transcended both criminal and tort law: thirty states have laws in place that will immediately make abortion illegal should the Court reverse Roe.
2. Federal Laws Following Suit
Despite failures to legislatively overturn Roe, Congress successfully passed the Partial-Birth Abortion Ban Act of 2003 (“the Ban”). The Ban was passed in response to Stenberg v. Carhart’s striking down of Nebraska’s ban on the D&X procedure. The Ban criminalized abortions that deliberately and intentionally begin to deliver the child until a significant portion of the live infant is born and then “performing an overt act that the [physician] knows will kill the partially delivered living fetus.” Where the Court in Stenberg had declined to address the live birth issue, Congress recognized that to allow such a procedure would be to confuse the “medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.”
In calling the procedure “gruesome and inhumane,” Congress explained that a purpose for the Ban was to protect unborn children, as future citizens, from experiencing “the pain associated with piercing his or her skull and sucking out his or her brain.” Here, there is a congressional admission that the fetus is a citizen in need of protection, that having “potential life” and being a “future citizen” means that one is entitled to current rights. Also significant is that Congress outlawed the procedure due to the pain inflicted on the unborn child. If pain is the threshold for human life and protection, the fetus would be a human at least at the point in which she has sensory abilities.
The second major federal fetal rights law is the Unborn Victims of Violence Act of 2004 (“the Act”). Also known as “Laci and Conner’s Law,” the Act makes it a separate federal crime to cause death or bodily harm to an unborn child. Thus, the murder of a pregnant woman constitutes a double homicide. Moreover, the law recognizes two victims, even if the mother survives the offense. Significant to the fetal rights movement is the fact that the Act defines “a child in utero” as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” This gives the unborn child protection under federal law as a separate person from the moment of known pregnancy–viable or not. This “advances the theory that unborn children should be afforded legal rights and protections under the Constitution.”
It is not surprising that scholars immediately noted the conflict between this legislation and the reasoning in abortion jurisprudence. And yet, the Act reflects the social climate of the country: the legislative history notes that eighty-four percent of Americans believe that separate homicide charges are necessary for an unborn child. Congress cited its purpose for the Act was to “respond to [the] overwhelming desire of the American public to provide, under Federal law, that an individual who injures or kills an unborn child . . . will be charged with a separate offense.”
D. The Time is Right to Correct the Wrong
Science and legislatures are not the only entities recognizing the personhood of the fetus: the Court is getting close as well. As notable constitutional law scholar, Erwin Chemerinsky, has noted, “[t]here is no area of constitutional law that cannot be changed by one or two appointments to the [C]ourt.” The anti-Roe trend was certainly accelerated by Justices Brennan and Marshall resigning and being replaced by Justices Souter and Thomas. Three of the Justices appointed by Presidents Reagan and George H.W. Bush made up the plurality opinion in Casey. Though the Court upheld abortion rights, this case marked a significant turning point as the Court upheld an abortion restriction similar to those it had struck down less than a decade earlier. More recently, the additions of Chief Justice Roberts and Justice Alito seem to have significantly quickened the pace towards fetal rights, with Justice Alito supplying the crucial fifth vote in Gonzales v. Carhart and Chief Justice Roberts procuring the first unanimous vote in the Court’s abortion jurisprudence in Ayotte v. Planned Parenthood. Indeed, with these appointments, the Court is currently only one vote shy of completely overturning Roe.
With the Supreme Court “in flux,” a reconsideration of Roe is an unavoidable possibility. When that day comes, the Court will have to take into account all of the current scientific and sociological developments. It would not be the first time the Court has reversed itself to correct a false assumption. This is especially true when one is reminded that at one time, women and slaves were also considered less than a “person” for the purpose of constitutional protection.
If the time is right, then this begs the question–now what? If Roe is reversed and constitutional protection is granted to unborn children, how does this affect a woman’s right to terminate an unwanted pregnancy? The next two sections address the conflict of interests and explore compromises before proposing a solution that is consistent with constitutional jurisprudence.
III. The Problem: Right to Life v. Right to Privacy
A. Stating the Obvious: Recognizing the Conflicting Interests
The law of non-contradictions necessitates a conclusion that “an unborn child cannot be a person and a non-person at the same time and in the same respect.” Recognizing that the unborn child is a person and yet unequal under the law is simply unjust. Instead, an unborn child who is granted recognition as a person is entitled to legal protection. Thus, if the fetus is finally given a classification as a constitutional person, then any legislature that permits abortion is allowing others to deprive the unborn child of life without due process of law and without equal protection–a completely unconstitutional allowance.
While the right to privacy has long been considered a sacred right, it is not an absolute right and can be limited by the conflicting right of the unborn. No matter where one stands on the abortion issue, simple logic dictates that it is wrong to continue to allow the absolute right of abortion in light of the “accelerating of protections for the rights of the unborn.” Rather, there is a conflicting interest between the right to an abortion and the right to life that must be resolved.
B. Preliminary Solutions: Why They are Not Enough
While many scholars have come to a consensus that the unborn child has a right to life, few have taken it a step further and offered a solution to the conflicting interests. Some have recognized that the unborn child is entitled to protection from tortious acts under the law and yet refrain from extending this conclusion to protect the child from death by abortion. However, a law that protects the fetus from abuse or neglect would be inconsistent if it then allows the even more grievous tortious act of inflicting involuntary death.
Other scholars argue that the conflicting interests should be solved by leaving it up to the states to decide whether the fetus is a person. However, this is not solving the underlying issue–it is merely delegating the decision. Moreover, even if it were left to the states, more issues would arise as a result of inconsistent laws. Consider the obvious problem that will arise when citizens of an anti-abortion state cross into a pro-abortion state in order to get the procedure. If the fetus is a protected citizen of one state, would this status change simply because her mother traveled into another state? What if the child is conceived in a state that deems the child a person, yet his mother is a resident of a state (or later moves to a state) where no personhood is recognized until birth? Federalism simply cannot be relied on in this context because the truth as to the beginning of human life is not discretionary. History dictates that personhood is not something that can change based on geographic location: the Thirteenth Amendment was passed precisely to remove the state’s power of deeming a class of citizens non-persons simply because of their race. In the same way, there should be no state-by-state determination of personhood based on the arbitrary factors of age, size and economic status. There needs to be consistency among all of the states to prevent such disputes, as they subject the existence of human life to varying degrees of interpretation when it is instead a question of fact.
At least one scholar has suggested that deeming a fetus a person is problematic because it treats women as incubators, inferring that this alone should preserve the right to an abortion. This, however, has nothing to do with addressing the conflict between the interests. Even if the woman is an “incubator,” this argument does not adequately address the right to life versus the right to be free from being an “incubator.” Instead, it is merely a restatement of the conflict between a woman’s liberty interest of being free from carrying an unwanted child and that child’s interest in living. But hardship on a woman’s liberty interest has no bearing on the actual physical personhood of the child she is carrying; while it may make some more comfortable with the idea of abortion, it does not diminish or resolve the underlying issue.
Another scholar has suggested that the conflict of interests is three-fold: state, child and mother. To resolve these interests, a balancing test is proposed in which the “interests of unborn children should be weighed alongside those of pregnant women and the state in legislative enactments and judicial review of abortion laws.” Because this scholar concludes that this would be a case-by-case analysis, there is no suggestion of how to apply this balancing test. A case-by-case analysis is unworkable. In every case, the fundamental interests are the same: interest in protecting future citizens versus interest in saving one’s life versus interest in obtaining an abortion. Without offering a solution of how to weigh the competing interests, all that is present is, again, an acknowledgement of the problem.
Thus, scholars have generally left an actual solution still wanting. Below is a proposal that is more consistent in applicability and resolving of the underlying issue.
IV. Solution: Right to Life Must Prevail
The solution to the conflicting interests comes from what one might find an unlikely source: Roe itself. The opinion suggests that the right to life would prevail over the right to privacy. Recall Roe’s own admission that once “personhood is established, the [case for abortion rights] of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” Here, Justice Blackmun does not state that when fetal personhood is accepted, the right to life becomes inherent only at a certain point in the pregnancy. Nor does he state that when fetal personhood is accepted, a balancing test must be employed. To the contrary, the fetus’ life is constitutionally protected and the entire case for abortion rights collapses. This means that abortion’s right of privacy cannot be sustained against the right of life. Simply put, the right of a human being to live, in any analysis, must always trump the liberty right to terminate that life.
Merely because the unborn child lacks the capacity to assert her rights and equal protection under the law is not an excuse to ignore and deny those rights. Clearly, the unborn child would benefit from exercising her Fourteenth Amendment right to live, her right to prevent involuntary death. The unborn child has the right to choose life for herself. The fact that she cannot express it for herself does not diminish this right. Normally, the child’s guardian would represent this right, but here this is the very person with the conflicting interest. Thus, it is necessary for the state to step in and protect the child’s rights.
Abortion supporters will likely rebut this proposition by asserting that the right of privacy gives the woman autonomy over her own body without government interference; that a woman will be subjected as an “incubator” if not given the choice whether to carry her child to term. The proposed solution is not meant to discriminate against women’s rights, but rather to promote the rights of the unborn human being who has no choice but to be carried by her mother for the first nine months of her existence.
Moreover, the right of privacy assumes that the actions one is taking affect only oneself. As soon as the actions have a negative impact on another person, the actions transcend from private to social. The unborn child is only lacking in independence because her age requires her mother’s womb to assure survival. This is no different from a post-birth child who depends on her parent’s provisions of food and clothing to survive. For that matter, it is no different from any disabled or incapacitated adult.
A fundamental truth of human rights is that the value of human life cannot be measured by age, size or desirability. To deny an unborn child equal protection as a person simply because she is small and young is scientifically incorrect. To permit a mother to end the life of her developing baby simply because she does not want the inconvenience of a pregnancy or parenthood is constitutionally wrong. Roe itself called for the recognition of fetal personhood in light of an expansion of medical and social developments, and once recognized, this person’s life must be protected above another’s lesser right. While it may not be the easiest solution to swallow and would take a humble Court ready to correct more than three decades of embarrassing missteps, it is the right thing to do.
Immediate and constant criticisms of Roe and its progeny, together with the Court’s own admission that the issue must be readdressed when more information is known, make reconsideration inevitable. The Court cannot forever hide from the scientific truths that have been discovered, nor the trends in legislation. Thus, the recognition of fetal personhood is no longer an “if” but a “when.” And when that day comes, the Court must render a solution to the competing interests between mother and child. To stay consistent with both constitutional and human rights principals, the Court should stay true to its admission in Roe and let the right to abortions “collapse.”