Roe and the new frontier.

• Author: Roy, Lisa Shaw

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.

1. 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.

   1. 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...