Hostname: page-component-78c5997874-g7gxr Total loading time: 0 Render date: 2024-11-19T09:26:25.419Z Has data issue: false hasContentIssue false

The State's Interest in Potential Life

Published online by Cambridge University Press:  01 January 2021

Extract

Most people identify Roe v. Wade with a single landmark judgment. It extended the constitutional right of individual privacy to a woman’s decision about whether to terminate a pregnancy. Indeed, political, judicial, and scholarly debates about the case have focused on the origin, content, and balancing of that substantive due process right to abortion.

Largely missing from these debates is Roe’s distinct holding, on the other side of the constitutional ledger, that the government has a valid reason to regulate reproductive conduct in the name of “potential life.” Despite decades of intensive litigation and academic commentary on the metes and bounds of reproductive privacy, scholars have paid little attention to the state’s interest in potential life that it is routinely found to implicate.

Type
Symposium
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Roe v. Wade, 410 U.S. 113 (1973).Google Scholar
See, e.g., Davis v. Davis, 842 S.W.2d 588, 603 (Tenn. 1992); Cohen, I. G., “The Constitution and the Rights Not to Procreate,” Stanford Law Review 60, no. 4 (2008): 11351196, at 1135, 1144–1145, 1154.Google Scholar
Reva Siegel and Jed Rubenfeld have addressed the possible meanings of the state's interest in potential life in more detail than any other scholars, and each have done so in just a single paragraph. See Siegel, R. B., “Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart,” Yale Law Journal 117, no. 8 (2008): 16941800, at 1694, 1739, 1746–1747; Rubenfeld, J., “On the Legal Status of the Proposition That ‘Life Begins at Conception,”’ Stanford Law Review 43, no. 3 (1991): 599–636, at 599, 610–611.CrossRefGoogle Scholar
Roe, 410 U.S. at 162, 150 (emphasis in original). This interest in potential life does not, the Court has held, extend to sperm or eggs, considered separately, before they are combined into a single organism. Its reach is limited to the still-unborn organism that those cells form together “postconception.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 859, 871 (1992).Google Scholar
Gonzales v. Carhart, 550 U.S. 124, 146 (2007).Google Scholar
6. Corkey v. Edwards, 322 F. Supp. 1248, 1253 (W.D.N.C. 1971), vacated by 410 U.S. 950 (1973).Google Scholar
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 914 (1992) (Stevens, J., concurring and dissenting in part).Google Scholar
Because the state's interest in potential life is not “implicated” by conduct that takes place before the union of sperm and egg, the Court has held, it “cannot be invoked to justify” the “regulation of contraceptives.” Carey v. Population Serv. Int’l, 431 U.S. 678, 690 (1977).Google Scholar
9. Casey, 505 U.S. at 870.Google Scholar
See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905) (upholding the state's authority to mandate smallpox vaccinations in service of the public health); Arar v. Ashcroft, 585 F.3d 559, 574–76 (2d Cir. 2009) (invoking national security justification to authorize the restriction of constitutional remedies available to foreign nationals).Google Scholar
Roe, 410 U.S. at 150.Google Scholar
Skinner v. State of Okla. Ex’ Rel. Williamson, 316 U.S. 535 (1942).Google Scholar
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992).Google Scholar
Id., at 896–97.Google Scholar
Id. at 150, 154, 162.Google Scholar
Id., at 150.Google Scholar
Id., at 156, 161–162.Google Scholar
Id., at 162.Google Scholar
Id., at 163.Google Scholar
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).Google Scholar
Roe, , 410 U.S. at 162–63.Google Scholar
Casey, , 505 U.S. at 869.Google Scholar
Roe, , 410 U.S. at 150.Google Scholar
Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 795 (1986) (White, J., dissenting).Google Scholar
Roe, , 410 U.S. at 163.Google Scholar
See, e.g., Thornburgh, 476 U.S. at 778 (Stevens, J., concurring) (listing among possible candidates that might explain the “progressive[]” growth of the potential-life interest the fact that “the organism's capacity to feel pain, to experience pleasure, to survive and to react to its surroundings increases day by day”).Google Scholar
Maher v. Roe, 432 U.S. 464, 478 (1977).Google Scholar
See Fox, D., “Luck, Genes, and Equality,” Journal of Law, Medicine & Ethics 35, no. 4 (2007): 712726, at 713.Google Scholar
See Cohen, I. G., “Beyond Best Interests,” Minnesota Law Review 96, no. 4 (2012): 11871274, at 1208–1111. In this and a companion piece, Professor Cohen limits his analysis to those “cases where the State seeks to influence who will be conceived not who will be born.” Cohen, I. G., “Regulating Reproduction: The Problem with Best Interests,” Minnesota Law Review 96, no. 2 (2011): 423–519, at 441. He therefore brackets from examination the regulation of practices that affect the already existing embryos and fetuses that the Supreme Court has defined as “potential life.” See supra notes 4.Google Scholar
See 21 C.F.R. § 101.79 (2013).Google Scholar
See, e.g., Houghton, L. A. et al., “Long-Term Effect of Low-Dose Folic Acid Intake: Potential Effect of Mandatory Fortification on the Prevention of Neural Tube Defects,” American Journal of Clinical Nutrition 94, no. 1 (2011): 136141, at 140–141.CrossRefGoogle Scholar
Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 697 (Ill. 1987).Google Scholar
See Procanik v. Cillo, 478 A.2d 755, 762 (N.J. 1984) (affirming that “[w]hatever logic inheres in…denying the child's own right to recover” for preconception “medical malpractice” that caused him to be born – in a way that he himself could not have been otherwise – with an injury whose treatment incurs the “crushing burden of extraordinary expenses” “must yield to the injustice of that result”).Google Scholar
Johnsen, D. E., “Shared Interests: Promoting Healthy Births without Sacrificing Women's Liberty,” Hastings Law Journal 43, no. 3 (1992): 569614, at 570.Google Scholar
See, e.g., Ginsberg v. New York, 390 U.S. 629, 639 & n.7 (1968).Google Scholar
See Cohen, , “Best Interests,” supra note 29, at 1265–1269.Google Scholar
See Maher v. Roe, 432 U.S. 464, 474, 478 (1977).Google Scholar
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992).Google Scholar
Stenberg v. Carhart, 530 U.S. 914, 956–57 (2000) (Kennedy, J., dissenting).Google Scholar
See, e.g., Fox, D. Griffin, C. L. Jr., “Disability-Selective Abortion and the Americans with Disabilities Act,” Utah Law Review 2009, no. 3 (2009): 845905, at 853–855.Google Scholar
See, e.g., Meyer, M. J. Nelson, L. J., “Respecting What We Destroy: Reflections on Human Embryo Research,” Hastings Center Report 31, no. 1 (Jan.-Feb. 2001): 1631, at 16, 19, 22.CrossRefGoogle Scholar
Richardson, V., “Aborted Fetus Cells Used in Anti-Aging Products,” Washington Times, November 3, 2009, at A1.Google Scholar
See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860 (2005).Google Scholar
See Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947).Google Scholar
Roe v. Wade, 410 U.S. 113, 116 (1973).Google Scholar
Webster v. Reprod. Health Servs., 492 U.S. 490, 571, 566–67 (1989) (Stevens, J., concurring and dissenting in part).Google Scholar
Dworkin, R., Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Knopf, 1993): At 165 (emphasis added).Google Scholar
See Sanger, C., “Infant Safe Haven Laws: Legislating in the Culture of Life,” Columbia Law Review 106, no. 4 (2006): 753829, at 807.Google Scholar
Fox, D., “Retracing Liberalism and Remaking Nature: Designer Children, Research Embryos, and Featherless Chickens,” Bioethics 24, no. 4 (2010): 170178, at 172.CrossRefGoogle Scholar
See Robertson, J. A., “Symbolic Issues in Embryo Research,” Hastings Center Report 25, no. 1 (Jan.-Feb. 1995): 3738, at 37.CrossRefGoogle Scholar
Harris v. McRae, 448 U.S. 297, 319 (1980).Google Scholar
Gonzales v. Carhart, 550 U.S. 124, 158 (2007).Google Scholar
Id., at 141, 157, 158.Google Scholar
Id., at 157–158 (internal quotation marks omitted).Google Scholar
See id., at 158. That the social values interest was not illegitimate was justification enough for those five justices that Congress's ban on a particular method of terminating a pregnancy did constitute an undue burden on abortion generally. The undue burden framework established in Casey elevates judicial analysis of the potential-life interest to a prominent place. For this is the interest that the plurality of the Court held that any legitimate regulation of abortion must, in the first place, advance. Only if it duly “further[s] the State's interest in fetal life” need a court even analyze whether such regulation is designed not to “hinder,” but to “inform the woman's free choice” about whether to carry a pregnancy to term, and whether it “plac[es] a substantial obstacle in the path of…[her] choice.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874–79 (1992). This standard requires courts to determine, as a baseline inquiry before reaching these other concerns, the extent to which any challenged regulation of abortion serves that potential-life interest that the joint opinion held too weak before viability to legitimately restrict, in its purpose or substantial effect, a woman's decision about whether to continue a pregnancy. Id.Google Scholar
Id., at 877.Google Scholar
See id.; id., at 882–883 (consent provision); id., at 886–887 (waiting period provision).Google Scholar
See id., at 882–883, 886–887.Google Scholar
Lawrence v. Texas, 539 U.S. 558 (2003).Google Scholar
Id., at 571.Google Scholar
Id., at 577–578 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).Google Scholar
See id., at 580 (O'Connor, J., concurring).Google Scholar
Id., at 599 (Scalia, J., dissenting).Google Scholar
Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745 (5th Cir. 2008).Google Scholar
Williams v. Morgan, 478 F.3d 1316, 1318 (11th Cir. 2007).Google Scholar
Reliable Consultants, 517 U.S. at 745.Google Scholar
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).Google Scholar
Id., at 69.Google Scholar
Id., at 108–109 (Brennan, J., dissenting).Google Scholar
Id., at 109.Google Scholar
Id., at 109–111.Google Scholar
See, e.g., Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).Google Scholar
See Cohen, I. G. Sayeed, S., “Fetal Pain, Abortion, Viability, and the Constitution,” Journal of Law, Medicine & Ethics 39, no. 2 (2011): 235242, at 238, 241.CrossRefGoogle Scholar
No controlling precedent has categorically ruled out that multiple non-compelling and mutually reinforcing interests could converge into a compelling one capable of overriding rights. But neither have any cases endorsed this possibility, while many have tacitly declined the invitation to do so and others have expressly rejected such interest aggregation, if only in nonbinding dicta or concurring opinions. See, e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 759–60 (2007) (Thomas, J., concurring) (arguing in the Fourteenth Amendment context that “the combination of” “‘three essential elements”’ said to comprise a compelling interest, “does not,” if “[n]one of these elements is [itself] compelling,” thereby “produce an interest any more compelling than that represented by each element independently”); California Democratic Party v. Jones, 530 U.S. 567, 584–85 (2000) (holding that California's blanket primary violated a political party's First Amendment right to free association in part because, even though the primary served several legitimate state interests, none of those was by itself compelling).Google Scholar
Cf. Cohen, “Best Interests,” supra note 29, at 1217–1218 (referring to the harms that preconception conduct imposes on third parties as “reproductive externalities”).Google Scholar
See Donohue, J. J. III Levitt, S. D., “The Impact of Legalized Abortion on Crime,” Quarterly Journal of Economics 116, no. 2 (2001): 379420, at 381, 386–407.CrossRefGoogle Scholar
See Fox, D., “Silver Spoons and Golden Genes: Genetic Engineering and the Egalitarian Ethos,” American Journal of Law & Medicine 33, no. 4 (2007): 567623, at 581–583.Google Scholar
Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905).Google Scholar
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 915 (1992) (Stevens, J., concurring and dissenting in part).Google Scholar
Webster v. Reprod. Health Servs., 492 U.S. 490, 569 (1989) (Stevens, J., concurring and dissenting in part).Google Scholar
See Maher v. Roe, 432 U.S. 464, 478 n.11 (1977).CrossRefGoogle Scholar
Heller v. Doe, 509 U.S. 312, 321 (1993).Google Scholar
Romer v. Evans, 517 U.S. 620, 635 (1996).Google Scholar
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985) (Stevens, J., concurring).Google Scholar
U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 535 (1973).Google Scholar
Romer, , 517 U.S. at 632.Google Scholar
See Webster v. Reprod. Health Servs., 492 U.S. 490, 569 (1989) (Stevens, J., concurring and dissenting in part).Google Scholar
See Gonzales v. Carhart, 550 U.S. 124 (2007).Google Scholar
Id., at 157–158.Google Scholar
Id., at 158.Google Scholar
Id. at 157–158.Google Scholar
Id., at 158 (quoting Washington v. Glucksberg, 521 U.S. 702, 732 & n.23 (1997)).Google Scholar
Roe v. Wade, 410 U.S. 113, 150, 162–64 (1973) (emphasis omitted).Google Scholar
See Robertson, J. A., “Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis,” University of Pennsylvania Journal of Constitutional Law 14, no. 2 (2011): 327390, at 335.Google Scholar
Gonzales v. Carhart, 550 U.S. 124, 165 (2007).Google Scholar
Id., at 166. But see id., at 161–163 (upholding the federal law based in part on Congress' findings, convincingly rejected by the lower court, that the regulated abortion procedure was never medically necessary).Google Scholar
See, e.g., Act of May 1, 2012, §§ 1–2, 2012 Ga. Laws Act 631; 2011 Ind. Legis. Serv. P.L. 193–2011 (H.E.A. 1210) (West); H.R. 5711, 96th Leg., Reg. Sess. (Mich. 2012); Neb. Rev. Stat. § 28–3,104(1) (Supp. 2010); Okla. Stat. Ann. tit. 63, § 1–738.10 (West 2011); 2011 Ala. Act. (H.B.18); 2011 Kansas Sess. Laws Ch. 41 (H.B. 2218). The Arizona and Idaho fetal pain laws were struck down for placing an undue burden on abortion. See 2012 Ariz. Sess. Laws ch. 250, overturned by Isaacson v. Horne, 716 F.3d 1213, 2013 WL 2160171, at *8 (9th Cir., 2013); Idaho Code Ann. § 18–501 (West 2011), overturned by McCormack v. Hiedeman, 900 F. Supp. 2d 1128, 1149 (D. Idaho 2013).Google Scholar
See, e.g., Isaacson, 716 F.3d at 2160171; McCormack, 900 F. Supp. at 1149; Women's Med. Prof’l Corp. v. Voinovich, 911 F. Supp. 1051, 1071–72 (S.D. Ohio 1995), aff’d, 130 F.3d 187 (6th Cir. 1997). Glenn Cohen and Sadath Sayeed have suggested an alternative way to construe fetal pain statutes as seeking not to prevent fetal pain, but to establish the capacity for such pain sensation as “itself a criterion of constitutional personhood, such that pain-capable fetuses are constitutional persons.” See Cohen, Sayeed, , supra note 78, at 240. However, the unborn have never been thus recognized in the law as persons” or “accord[ed] legal rights.” Roe v. Wade, 410 U.S. 113, 156, 162 (1973).Google Scholar
See Women's Med. Prof’l Corp., 911 F. Supp. at 1071–72.Google Scholar
See id., at 1072 & n.28.Google Scholar
See id., at 1073.Google Scholar
Id., at 1071–72 and n.28.Google Scholar
Id., at 1074.Google Scholar
See, e.g., Stenberg v. Carhart, 530 U.S. 914, 920–21 (2000) (recognizing that citizens hold “virtually irreconcilable” beliefs about when “life begins”).Google Scholar
Calabresi, G., Ideals, Beliefs, Attitudes and the Law: Private Law Perspectives on a Public Law Problem (Syracuse: Syracuse University Press, 1985): At 95–96 (internal quotation marks omitted).Google Scholar
Roe v. Wade, 410 U.S. 113, 156 (1973).Google Scholar
Id., at 150 (emphasis added).Google Scholar
Id., at 163 (emphasis added).Google Scholar
Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting).Google Scholar
Roe, 410 U.S. at 150.Google Scholar
Calabresi, G., “Bakke as Pseudo-Tragedy,” Catholic University Law Review 28, no. 3 (1979): 427444, at 429.Google Scholar
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 914–15 (1992) (Stevens, J., concurring and dissenting in part).Google Scholar
See Fox, , supra note 51, at 173.Google Scholar
Stenberg v. Carhart, 530 U.S. 914, 921 (2000).Google Scholar
See Fox, , supra note 51, at 173.Google Scholar