Lethal experimentation on human beings: Roe's effect on bioethics.

• Author: Saunders, William L., Jr.

INTRODUCTION

In Roe v. Wade, (1) the Supreme Court of the United States recognized a right under the federal constitution for a woman to terminate a pregnancy. (2) The Court held that a "fetus" was not a "person" for purposes of Constitutional protection. (3) In Roe's companion case, Doe v. Bolton, (4) decided the same day, the Supreme Court extended this new abortion right throughout all nine months of pregnancy, through the health exception that allows an abortion if either the "psychological" or the "physical wellbeing" (5) of the mother is jeopardized.

In Planned Parenthood v. Casey, (6) the Supreme Court affirmed the abortion right. (7) While noting the legitimacy of regulation due to the state's interest in the "life of the fetus," (8) the Court holding was not based on a "privacy right," as Roe itself had been, but under a "liberty interest" derived from the Fifth and Fourteenth Amendments. (9) In Stenberg v. Carhart, (10) the Court struck down a Nebraska statute prohibiting partial birth abortion. (11) By insisting on a health exception in every instance in which an abortion procedure is necessary to preserve the life or health of the mother, (12) the Supreme Court demonstrated that it would subject any state regulation of abortion to strict scrutiny. (13)

The thirty years since the decisions in Roe and Doe have witnessed a continuous public debate and political controversy over their legitimacy. (14) Despite a plea from the plurality in Casey to end this debate and to accept the decisions, (15) the argument continues.

For those who oppose Roe, the decision seriously distorts our federal system. (16) Roe's opponents find no warrant in the federal constitution for a right to abortion. They view the creation of such a right by the Supreme Court as judicial usurpation of the functions that the Constitution allots to the legislature. (17) In the eyes of opponents, the worst consequence is that the decision removes the protection of the law from an entire class of human beings. (18)

For those who support Roe, the Supreme Court rightly recognized a woman's fundamental right to control her own body. (19) Many supporters view any restriction on such a fundamental right as unacceptable. Thus, after Congress passed the "Partial Birth Abortion Ban," (20) but before President George W. Bush signed it into law and despite the fact that the law seeks to proscribe only a particular abortion procedure, (21) opponents filed lawsuits in several different federal district courts seeking to have the ban enjoined. (22)

The supporters of the Roe-related jurisprudence often argue that the right of a woman to control her body is at stake in all of these cases. (23) Indeed, Justice Harry Blackmun, who wrote the Roe opinion, stated: "We, therefore, conclude that the right of personal privacy includes the abortion decision...." (24)

Of course, the primary value of Roe and its progeny is the precedent it sets in cases involving abortion. The Supreme Court has rejected the logic of personal autonomy as a justification for a constitutional right to assisted suicide. (25) Nonetheless, I shall attempt to show that Roe's effects have not been limited to the abortion context. (26) Rather, the legal fictions employed in the Roe jurisprudence that deny the protection of the law to one class of human beings have extended far beyond the abortion context to endanger other human beings in very different situations.

1. HUMAN ORIGIN AND DEVELOPMENT

   There is no mystery about when human life begins. It is only within the political and ideological context that this matter is contested. (27) When the matter is not being debated in a courtroom or on the floor of the Congress, when it is left for scientific analysis, the resolution is clear.

   Human life begins, in the normal, ordinary case, at "conception," that is to say, at fertilization. (28) It begins when the male germ cell, the sperm, penetrates the female germ cell, the oocyte. (29) From that moment onwards, there is a unique, unified, self-directing, self-integrating organism. (30) The sperm cell and the oocyte no longer exist; rather their fusion has resulted in the creation of a new single-celled organism, which, at the single cell stage is called a zygote. (31)

   While it is true that the sperm cell and the oocyte, prior to union, were living human cells, neither was a living human organism. (32) Left alone, each would simply die as it lived, as either a sperm or an oocyte. (33) It is their union that produces a new, distinct living organism. The growth of the organism will be self-directed. (34) The organism's chromosomes, half of which were supplied by the sperm cell and half by the oocyte, (35) will direct its growth. The organism is a complete and unitary being. While it is true that if the organism does not receive nutrition, hydration, and a hospitable environment, it will die, the same is true for every human being, no matter what its stage of development. Indeed, the need for food, water, and shelter is so fundamental that certain international treaties recognize it as a right. (36)

   The organism created from the union of the sperm and the ooctye is the embryo. (37) The embryo is the first stage of human life. (38) Whenever (and by whatever means) a living human embryo is created, a human life begins. As the embryo develops, it passes into the fetal stage; it is born at the infantile stage; and its development continues, unless interrupted, through childhood and adulthood, until it dies. (39)

   H. SEMANTIC GYMNASTICS

   In 1970, in what has become a famous editorial, California Medicine, the journal of the California Medical Association, candidly noted that in order for a right to abortion to be generally accepted, it would be necessary to undermine traditional Western ethics of respect for each human life and the equality of each human life. (40) The aim was to "separate the idea of abortion from the idea of killing." (41) The editorial approved of what it called "semantic gymnastics" whose aim was to deny "the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death." (42)

   It is precisely this scientifically established fact that Justice Harry Blackmun ignored when he wrote the majority opinion in Roe v. Wade. Justice Blackmun claimed that "lilt should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question." (43) He then considered various religious, philosophical, and historical views. (44) He also discussed how the law had previously treated injuries to the fetus in a variety of contexts. (45) Blackmum found a lack of unanimity from these sources concerning "the difficult question of when life begins" (46) but noted that the Supreme Court "need not resolve" the question. (47) This conclusion enabled Justice Blackmun to set up his well-known trimester system for balancing the various interests of the state and the woman in the regulation of abortion. (48)

   Significantly, Justice Blackmun failed to consider the answers provided by another discipline--that of basic embryology. (49) If he had, it would have been clear that the embryo is a developing human being from the very first day. (50) If it had been so recognized, Justice Blackmun would have had to consider its status in determining if it had protection under the Fifth and Fourteenth Amendments. By avoiding the scientific facts about the beginning of human life, Justice Blackmun was able to avoid the Constitutional dilemma presented by that fact. While we cannot know Justice Blackmun's subjective intention, the holding enunciated in Roe engaged in precisely the "semantic gymnastics" upon which California Medicine had commented three years earlier. (51)

3. HUMAN EMBRYONIC STEM CELL RESEARCH (52)

   There has been a vigorous public debate for several years on the question whether human embryonic stem cell research should be permitted, whether it should receive federal funding, or whether it should be prohibited. (53) During the Clinton Administration, the Department of Health and Human Services proposed regulations permitting federal funding of such research under various conditions. (54) During the presidential campaign of 2000, Vice-President Al...