1 410 U.S. 113 (1973).

2 Roe v. Wade gets only partial credit for these changes, since they resulted from larger social, economic and demographic forces. But Roe v. Wade facilitated the movement and symbolized the power that women would have over work and reproductive decisions. Kristin Luker argues that the controversy over Roe represents a status battle between lower-class and middle and upper-class women over whether the proper role of women would be defined in terms of work or motherhood. See K. LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 158-91 (1984).

Despite its feminist import, much of the “rights” language in Roe v. Wade speaks of physicians’ rights. Perhaps Justice Blackmun's previous service as general counsel to the Mayo Clinic was responsible for the medical cast of the opinion. Later cases made clear that the woman's right to abort was the ground on which the physician's right to carry out an abortion depended.

3 Scott v. Sandford, 60 U.S. 393 (1856).

4 Koop, The Slide to Auschwitz, in RONALD REGAN, ABORTION AND THE CONSCIENCE OF THE NATION 49-50 (1984).

5 Ely, , The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 944 (1973)CrossRefGoogle Scholar; see generally Amicus Curiae Brief at 24, Thornburgh v. American College of Obstetricians, 476 U.S. 747 (No. 84-495) (1986) (Solicitor Charles Fried made a similar point in urging the Court to reverse Roe v. Wade); Caplan, The Tenth Justice, THE NEW YORKER 30-31 (Aug. 17, 1987).

6 381 U.S. 479 (1965).

7 405 U.S. 438 (1972).

8 A notable exception is the recognition by state supreme courts that the right of privacy includes the right to refuse life-sustaining medical treatment. See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). Both cases cited Roe v. Wade for this proposition.

9 410 U.S. 113, 153, 163 (1973).

10 367 U.S. 497 (1961).

11 Id. at 541 (emphasis and changes in original); see also Moore v. City of East Cleveland, 431 U.S. 494 (1977)(an example of this effect). Many scholars have defended this view. For one of the most powerful defenses of this position, see Laycock, , Taking Constitutions Seriously: A Theory of Judicial Review, 59 TEXAS L. REV. 343 (1981)Google Scholar.

12 198 U.S. 45, 64 (1905).

13 Purists who object to any substantive due process decision unless stated explicitly in the Constitution or clearly intended by the framers will not find this assertion satisfactory. They argue that since the framers did not intend the fourteenth amendment to ban the abortion laws then in effect, arguments about the importance of avoiding pregnancy and the status of the fetus should be addressed to the legislatures, which alone have the authority to decide these questions. In their view, judicial dialogue on this subject, even if rationally possible, is ultra vires.

14 381 U.S. at 485-86. Since married couples may legally have sex, the decision means that their choice to avoid conception in the course of having sex is protected.

15 405 U.S. 438 (1972). One may still have a right to contraception even though one does not have a right to engage in the act requiring contraception. Thus Eisenstadt and Roe do not necessarily mean that fornication, adultery and cohabitation laws are unconstitutional. While many persons assert a right to engage in sex with consenting others, the Supreme Court has evaded decision on whether nonmarital heterosexuals have such a right. See Bowers v. Hardwick, 478 U.S. 186, 191 (1986).

16 Roe v. Wade is novel and nonincremental, however, in its evaluation of prenatal and fetal status. The Supreme Court had never previously addressed that issue.

17 There are important limitations on such a right. First, it is a presumptive right and may be overridden for good cause. Second, the right protects only against state interference and not private refusals, state refusals to fund, or other regulations that do not “interfere” with exercise of the right. Harris v. McCrae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977).

Since the move from Griswold to Roe v. Wade creates no new paradigm of analysis, it does not entail an expansion of nonprocreative rights, as has been made clear by other cases. See, e.g., Bowers, 478 U.S. at 186; Whalen v. Roe, 429 U.S. 589 (1977); Paul v. Davis, 424 U.S. 693 (1976); and Village of Belle Terre v. Borras, 416 U.S. 1 (1974). Rights to express sexuality, use drugs and control one's own body generally, turn out, upon reflection, not to be rights that Roe v. Wade protects because these rights do not involve procreation, family and childrearing. Some state courts, however, have found Roe v. Wade to be authority for a right to refuse medical treatment necessary to keep them alive. See, e.g., Saikewicz, 373 Mass. at 739, 370 N.E.2d at 424, and Quinlan, 70 N.J. at 40, 355 A.2d at 663.

18 Eisenstadt, 405 U.S. at 453.

19 See infra text accompanying notes 23-49.

20 In Griswold, Justices Harlan and Douglas place a great emphasis upon the privacy of the home as a justification for the right they recognized. This approach, however, does not withstand scrutiny, because drug use, child abuse or other crimes in the home would not be protected. Surely a couple would be free to use contraceptives outside of the home (hotel, car, park). Despite its discussion of the importance of the home in assessing privacy rights, the Court was making a normative judgment about a couple's right to engage in sex and avoid procreation. See also Bowers, 478 U.S. at 206-09.

21 410 U.S. at 153. The Court's emphasis on childrearing reflects the traditional assumption that women are primarily childrearers. Such a view implicitly recognizes the importance of the gestational bond, and might be cited by those who think that a surrogate mother may not relinquish the rearing role in advance of birth or conception because of the strength of that bond.

22 Recognition of the burdens of childrearing as a justification for abortion suggests that a mother or father would have a fourteenth amendment right to relinquish offspring for adoption. Relief from rearing through adoption, however, should be distinguished from relief from the psychosocial burdens of having biological offspring for whom one has no rearing rights and duties. The right to relinquish for adoption does not imply the right to commit infanticide to avoid those psychosocial burdens, for the death of the offspring is not necessary for relinquishment of the rearing role, even though adoption might cause suffering for the relinquishing parent.

The socio-cultural meanings surrounding genetic transfer without rearing make it an important personal interest, but it is unclear to what extent it should be constitutionally protected. Such an interest justifies the use of contraceptives and gives persons control over their gametes and embryos for reproductive purposes. The state's interest in protecting viable fetuses and newborns, however, may override this right, even if it is deemed to be fundamental. Whether symbolic measures such as mandatory embryo donation laws are constitutional depends on the fundamental right status of this interest. See infra text and accompanying note 78.

23 The Court has recognized a right of bodily integrity against state seizure in other contexts. State imposition of pregnancy and childbirth requires strong justification because seldom in law or social practices are bodily intrusions beyond limitations of liberty mandated. Vaccination and blood tests for alcohol levels involve one-time, relatively minor intrusions, for the sake of generalized social needs, as does compulsory military service. Unwanted pregnancy, on the other hand, involves a continuous intrusion that alters body shape and risks morbidity and mortality for the sake of a specific individual. Surely the state should have to meet a very high standard of scrutiny to justify the bodily intrusions entailed in anti-abortion laws. See also note 43 infra.

24 See infra text accompanying notes 43-45 for a discussion of the question of the waiver of bodily integrity in the case of pregnancy resulting from protected or unprotected sexual intercourse.

25 See infra text accompanying notes 52-72.

26 Margaret Atwood's powerful novel of coerced reproduction for the good of society shows the injustice of such a policy when the burdens and benefits of procreative corvee are not equitably distributed. M. ATWOOD, THE HANDMAID's TALE (1986).

27 See R. MCCORMICK, How BRAVE A NEW WORLD 311-12 (1981) for a summary of the traditional Catholic view; see also VATICAN, CONGREGATION FOR THE DOCTRINE OF THE FAITH, INSTRUCTION ON THE RESPECT FOR HUMAN LIFE IN ITS ORIGIN AND ON THE DIGNITY OF PROCREATION (1986).

28 Griswold, 381 U.S. at 505-07 (White, J., concurring). Eisenstadt extended this right to single persons as well, though it does not necessarily follow that they have a right to engage in the sexual intercourse for which the contraceptives would be protection. See supra note 15.

In Griswold the state did not assert this moral concern directly, but tried to argue that it deterred nonmarital sex. Justice White neatly dispatched this argument. 381 U.S. at 505-07. The clear implication is that a strictly moral objection to birth control would not suffice.

29 For discussion of potentiality, see infra notes 32-45.

30 Roe, 410 U.S. at 163.

31 Protecting embryos or fetuses on symbolic grounds would not justify overriding a fundamental right, even though symbolizing respect for human life is a rational basis that justifies legislation that does not interfere with fundamental rights. For a discussion of mandatory embryo donation laws, see infra note 78 and accompanying text.

32 Such symbolic concerns are powerful and important and are recognized in many contexts. See Feinberg, , The Mistreatment of Dead Bodies, 15 HASTINGS CENTER REP. 31 (Feb. 1985)CrossRefGoogle Scholar; Merryman, , Thinking About the Elgin Marbles, 83 MICH. L. REV. 1881, 1883 (1985)CrossRefGoogle Scholar. But they generally would not justify overriding a fundamental right.

33 Grobstein, , The Early Development of Human Embryos, 10 J. MED. & PHIL. 213, 214 (1985)CrossRefGoogle Scholar.

34 Id. at 215.

35 Since conception or fertilization is a process extending over several hours and not a clearly marked point, the claim that the fertilized egg is a person is additionally problematic. No one is sure that the egg is truly fertilized until it cleaves and forms two cells. Jones, , The Process of Human Fertilization: Implications for Moral Status, 48 FERT. & STERIL. 189, 190-92 (1987)CrossRefGoogle Scholar.

36 See Grobstein, supra note 33, at 219-21.

37 Id. Sentience at this stage may be defined as a sufficient neurologic structure to feel pain, though it is difficult to know how much pain can be felt and how precisely to value it.

38 But abortion would not necessarily then be prohibited, because the right to life does not ordinarily give a person the right to use another's body. Robertson, , The Legal Implications of a Human Life Amendment, in DEFINING HUMAN LIFE: MEDICAL, ETHICAL AND LEGAL IMPLICATIONS 161, 165-67 (Shaw, M. & Doudera, A. eds. 1983)Google Scholar. See also note 43 infra.

39 Equally untenable is the position that embryos and fetuses are just like any other human tissue, deserving no special respect for their own sake. Actions affecting embryos and fetuses could affect the person born from them. Moreover, their potential to become a new person makes them a. powerful vehicle for symbolic meaning. Thus, the Court has found that fetal protection is a rational basis for state action in the first two trimesters, even though an interest in protecting fetuses would override a fundamental right only after viability.

40 We may debate whether infants, late fetuses, and severely retarded and comatose adults are persons precisely because they seem to have sufficient neurologic and cognitive capacity to qualify, despite apparent deficits. Tooley, , Abortion and Infanticide, 2 PHIL. & PUB. AFF. 37, 43-50 (1971)Google Scholar.

41 Roe v. Wade, 410 U.S. 113, 156-57 (1973).

42 U.S. CONST, amend. XVI, § 1.

43 The point here derives from Judith Thompson's A Defense of Abortion, 1 PHIL. & PUB. AFF. 47, 58-60 (1971)Google Scholar(analyzing this issue). See also Regan, , Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1597-98 (1979)CrossRefGoogle Scholar.

44 See infra text accompanying notes 79-81 for discussion of whether it outweighs the interest in avoiding genetic parentage tout court.

45 Dresser, , Respecting and Protecting Nonhuman Animals: Regan's The Case for Animal Rights (Book Review), 1984 AM. B. FOUND. RES. J. 831 (1984)Google Scholar.

46 Peter Singer effectively demolishes the potentiality argument with his imaginative set of hypotheticals in P. SINGER & D. WELLES, MAKING BABIES: THE NEW SCIENCE OF CONCEPTION 71-75 (1984). See also Singer, & Dawson, , IVF Technology and the Argument from Potential, 17 PHIL & PUB. AFF. 87 (1988)Google Scholar; Bigelow, & Pargetter, , Morality, Potential Persons and Abortion, 25 AMER. PHIL. Q. 173, 177-78 (1988)Google Scholar.

47 Ely, supra note 5, at 924.

48 Among commentators Nancy Rhoden comes closest to developing a rationale for the viability line, focussing on the advanced stage of development. But she does not explain why such significance should be assigned to that stage. Rhoden, , Trimesters and Technology: Revamping Roe v. Wade, 95 YALE L.J. 639, 669-70 (1986)CrossRefGoogle Scholar.

49 Waiver of the right to avoid gestational burdens by choosing to continue the pregnancy may have occurred at a much earlier stage than viability, though it clearly has occurred by the time viability is reached.

50 Hunter, Late Trimester Abortions, A REPRODUCTIVE AGENDA FOR THE 1990's (Taub ed. 1988) (book not yet in print).

51 Roe v. Wade, 410 U.S. 113, 163-64 (1973).

52 Of course, if induction of premature birth by abortion impaired the newborn's health, as is now likely, then this argument needs modification. The Court would then have to face directly why viability or survival should be protected. If the underlying concern is the welfare of such advanced fetuses, then terminations impairing that welfare by increasing the risks beyond those of a term birth could be banned as harmful to fetal interests. See also infra note 39.

53 On the assumption that the health of the resulting infant will not be affected by the termination. See supra note 52.

54 It was rare in 1973 for 1000 gram Fetuses to survive; they now do so routinely. It is likely that viability as currently understood will be pushed back into the second trimester. Moreover, fertilized eggs outside the mother or two- or three-day-old embryos are viable because the embryo can be transferred to another woman and brought to term in her body. This is the case even though they may lose viability for a while once implantation occurs. Blastocysts conceived in vivo may also be removed by lavage, transferred to another uterus and brought to term, if they are removed prior to implantation. Technically, this is not an abortion. Bustillo, , Nonsurgical Ovum Transfer as a Treatment in Infertile Women: Preliminary Experience, 25 J.A.M.A. 1171, 1172-73 (1984)CrossRefGoogle Scholar. Successful ectogenesis — complete external gestation — would make fertilized eggs and embryos viable outside of the mother from conception.

55 But see supra note 52.

56 462 U.S. 416(1983).

57 Id. at 456-58 (O'Connor, J., dissenting).

58 The suit could fail on the ground that an induced premature birth at that stage carries greater risks for the fetus than coming to term. If so, the viability line needs to be rethought, and the mental capacities that justify protection and which presumably exist at viability should be specified. If they exist, they probably would require continued pregnancy to the point where the risks of inducing a premature birth become comparable to those of a term delivery.

59 The difficult question is determining whether treatment would benefit the child, in light of its risks and benefits and the child's handicapped condition. See Robertson, , Procreative Liberty and the Control of Conception, Pregnancy and Childbirth, 69 VA. L. REV. 405, 458-62 (1983)CrossRefGoogle Scholar.

60 Whether she could cause fetus’ death in utero, prior to removal, will depend on whether the fetus is viable. If viable, she could be prevented from doing so. See infra notes 63-67.

If nonviable, she may have that right since the state would only have a weak symbolic interest in assuring that the nonviable fetus dies passively rather than actively in the abortion procedure itself. See infra note 68.

61 371 Mass. 497, 359 N.E.2d 4 (1976).

62 Id. at 511-14, 359 N.E.2d at 11-14; see also Rhoden, , The New Neonatal Dilemma: Live Births From Late Abortions, 72 GEO. L.J. 1451, 1476-90 (1984)Google Scholar.

63 Planned Parenthood, Kansas City, Mo. v. Ashcroft, 462 U.S. 476, 486 (1983).

64 ARK. CODE ANN. tit. 20, § 707 (1987)(requiring presence of a physician other than one performing abortion).

65 TEX. CODE ANN. § 17.011 (Vernon 1986). However, the theory behind such a law — that a woman who chooses to abort is not a fit parent — could be challenged.

66 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976).

67 Id. at 77-79; but see Thornburgh v. American College of Obstetricians, 476 U.S. 747 (1986) (striking down requirement that postviability abortions employ techniques most likely to assure fetal survival unless “a significantly greater medical risk to the life or health of the mother” were presented).

68 The state might assert an interest in assuring that fetuses die passively after expulsion, rather than actively by the expulsion procedure itself. This interest is recognized in the societal preference for passive rather than active euthanasia. One difficulty in making such a distinction in the context of abortion is that causing a previable fetus’ death passively requires a very active intervention to remove it from the life-support system of its mother's body. Restricting previable abortion techniques to create the illusion of passive rather than active death as a symbolic statement would not override a fundamental right and might not even satisfy a rational basis standard in such a case. In this situation, it is arguably a distinction without a difference.

69 See generally Robertson, & Schulman, , Pregnancy and Prenatal Harm to Offspring: The Case of Maternal PKU, 17 HASTINGS CENTER REP. 23, 25-26 (1987)CrossRefGoogle Scholar; Rhoden, , The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans, 74 CAL. L. REV. 1951, 1991-92 (1987)CrossRefGoogle Scholar.

70 Morning sickness, body changes, maternal-fetal bonding and other effects plus the greater risks of later abortion would constitute a significant bodily intrusion.

71 A twenty-four-hour delay between signing a consent form and undergoing the abortion was struck down by the Court in Akron. 426 U.S. at 449-51. That provision sought to reinforce or alter consent, however, and was not imposed to protect fetal welfare, which is a very different interest.

72 The analysis here assumes that prior to viability the fetus is not a rights-bearing entity and that the purpose of the state's protection of the fetus until viability is to make a symbolic commitment to human life.

73 Skinner v. Oklahoma, 316 U.S. 535 (1942).

74 Robertson, , Embryos, Families and Procreative Liberty: The Legal Structure of the New Reproduction, 59 So. CAL. L. REV. 939, 957-67 (1986)Google Scholar(argues for the right of coitally infertile married couples to reproduce with noncoital techniques involving embryos, gamete donors, and surrogate gestators).

75 Roe, 410 U.S. at 153.

76 See Robertson, supra note 74, at 975-87; see also Robertson, , Ethical and Legal Issues in the Cryopreservation of Human Embryos, 47 FERT. & STERIL. 371, 375-76 (1987)Google Scholar.

77 LA. REV. STAT. ANN. §§ 9:121-9:133 (West Supp. 1987).

78 Robertson, , In Vitro Conception and Harm to the Unborn, 8 HASTINGS CENTER REP. 13, 13-14 (1978)CrossRefGoogle Scholar. See also supra note 46.

79 The genetic tie tout court or “without more” signifies the relationship one has with biologic offspring when one has no rearing obligations or social relations with them. One is related genetically and no more.

80 The Court generally is wary of creating fundamental rights based on psychosocial burdens alone. It may not extend protection to this interest when no gestational or rearing burdens attach. If this prediction is correct, the state would be free to symbolize its respect for human life by enacting mandatory embryo donation laws and preventing couples from discarding embryos formed from their gametes.

81 See supra notes 74-76.

82 Public opinion polls consistently show that a strong majority support some right to abortion in the early stages of pregnancy and in later stages for health or reasons of genetic defect. Beck, American Abortion Dilemma, NEWSWEEK Jan. 14, 1985, at 20, 20-22.