THE DEATH OF ABORTION: IF ROE V. WADE IS OVERTURNED, CAN THE RIGHT TO CHOOSE BE UPHELD UNDER THE ARGUMENTS USED TO ESTABLISH AN INDIVIDUAL'S RIGHT TO PHYSICIAN-ASSISTED SUICIDE?

• Author: McCoy, Jennifer

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views ... [T]he right of personal privacy includes the abortion decision, but this right is not unqualified and must be considered against important state interests in regulation. (1)

1. INTRODUCTION

   Throughout the judicial history of the United States, courts have never been tasked with establishing a man's right to control his own reproductive health. (2) However, only forty-five years ago, women fought their way up to the Supreme Court to receive recognition for the same liberties afforded to men. (3) Issued in the early 1970s, the Roe v. Wade decision shaped women's rights regarding their reproductive health. (4) This decision not only granted women control over their bodies, but it also emboldened them with the power to stand up for their personal reproductive rights through case law. (5) However, with the appointment of Justice Brett Kavanaugh to the Supreme Court, states are again questioning whether Roe v. Wade should remain valid case law in the federal judicial system. (6)

   Overturning Roe v. Wade not only will be catastrophic to a woman's right to control her body, but will also undo decades of wellestablished precedent. (7) Although abortions would not be considered unconstitutional per se, the Supreme Court could still determine that abortions should not receive special protection as a fundamental right. (8) Consequently, states would be free to pass laws that restrict abortions at any and all stages of pregnancy. (9) States could potentially revert women's reproductive rights back to the restrictive period prior to Roe v. Wade. (10) However, if Roe v. Wade is overturned and the right to abortion is no longer constitutionally protected under the Fourteenth Amendment, states may pass laws that affirmatively give women the freedom to make decisions about their own reproductive health, as opposed to reverting to the oppressive world that existed before. (11)

   Outside the scope of abortion rights, some states have passed laws that grant individuals the freedom and control over their bodies--specifically in the context of physician-assisted suicide. (12) In Roe v. Wade, the Court addressed the strain that legalizing a woman's right to choose may put on some physicians--a concern that was at the forefront of the argument against physician-assisted suicide. (13) Both individual states and the United States Supreme Court have used the Fourth Amendment Due Process Clause and the right to privacy to argue that people possess an "individual right" to control decisions that affect "how their bodies and mind should be treated." (14) If Roe v. Wade is overturned, perhaps states can use a parallel argument to those made in support of the right to physician-assisted suicide--as both discuss control over one's own body. (15) This Note will address and determine whether states may also successfully utilize this argument to preserve the women's right to choose. (16)

2. FACTS

   Recently, the Supreme Court granted certiorari to review a Louisiana law that restricts a woman's access to abortion--a decision expected to be issued by June 2020. (17) With the current conservative majority on the Supreme Court, an opportunity arises for the Court to find not only that the Louisiana law is constitutional, but also that the state's interests meet the standard of strict scrutiny--effectively overturning Roe v. Wade. (18) This potential decision would overturn thousands of subsequent cases that rely on Roe's authority, and may also cement the current restrictive laws already enacted by many states. (19)

   If the Supreme Court decides to uphold the Louisiana law, it will create a growing concern for the women's rights movement across the United States. (20) First, if these restrictions are placed on a woman's ability to have an abortion, it could potentially create traumatic experiences for rape victims, especially if their attacker was a close friend or family member. (21) Second, states will have the power to make abortions fully illegal, or alternatively, impose substantial barriers to women's access to abortions by requiring the paternal father's consent. (22) Finally, women may be subjected to possible criminal repercussions, as was the reality before Roe v. Wade. (23)

   Since 2019, many states have enacted laws restricting a woman's right to choose. (24) All of the following states have passed laws that banned abortion in some form, but many have since been overturned by a federal court judge: Alabama, Louisiana, Kentucky, Utah, Ohio, Missouri, Mississippi, Iowa, Arkansas, Georgia, North Dakota and Pennsylvania. (25) Enacting these laws revitalized the conversation whether Roe v. Wade could be, or should be, overturned. (26) Many of the states that passed these restrictive laws asserted that there was a compelling state interest to protect the fetus after a fetal heartbeat is detected--which can occur as early as six weeks into pregnancy. (27) These laws make it extremely difficult for women to get abortions and severely restrict their access to medical contraceptive options. (28) Since eleven states adopted these restrictive bills--commonly referred to as "heartbeat bills"--women in over one-fifth of the states in the United States are extremely limited in how they may exercise their fundamental right to choose an abortion. (29)

   If a state has the authority to restrict a woman's right to choose, a state also has the power to affirmatively protect that right. (30) In New York, for example, the state legislature preemptively passed the Reproductive Health Act to protect a woman's right to assert control over her reproductive health at the state level. (31) Lawmakers suggested passing the Reproductive Health Act to address the gap in New York law, which did not ensure that health care providers would give the best health advice they could-potentially because there was still a risk they could be criminally prosecuted for giving abortion advice. (32)

3. HISTORY

   1. History of Right to Abortion

      Throughout history--as early as ancient Rome--various cultures utilized different abortion methods to prevent unwanted pregnancies. (33) It was not until the early nineteenth century, however, that morality and legality issues arose regarding abortion and states began to pass some form of restrictive abortion law. (34) Every state enacted laws that criminalized abortion and focused heavily on shutting down the facilities that performed such procedures. (35) As a result of the criminalization of abortion, a woman was held criminally responsible for manslaughter after receiving an abortion in 1971--two years before Roe v. Wade. (36) However, as women's rights to reproductive freedom diminished throughout the nineteenth and twentieth centuries, other fundamental rights granted under the Fourteenth Amendment expanded. (37)

      The origin of an individual's right to choose can be found in the Supreme Court's Fourteenth Amendment jurisprudence, where the Court set apart the right to abortion as a fundamental right that warranted protection. (38) The Court in Roe held that some liberties are so important that they are deemed "fundamental rights", and the government cannot infringe upon them unless a strict scrutiny analysis is met; that is, the government's action must be necessary to achieve a compelling purpose and there is no less restrictive alternative that could accomplish those same goals. (39) Over the past sixty years, the Supreme Court analyzed the nuances of the fundamental right to choose by assessing whether this right originated from the Equal Protection Clause or the Due Process Clause under the Fourteenth Amendment. (40) In Meyer v. Nebraska, the Court held that the unenumerated fundamental rights provided under the Fourteenth Amendment included the liberty interests of a family, such as marriage and child rearing. (41) Subsequently, the Supreme Court further expanded upon the protections afforded under the Fourteenth Amendment, specifically regarding child rearing. (42) The Supreme Court subsequently held in Skinner v. Oklahoma that it was unconstitutional to force an individual twice convicted of a felony to be sterilized because "marriage and procreation are fundamental to the very existence and survival of the race." (43) By the mid-nineteenth century, it became evident that the Court recognized the right to procreate under the Constitution. (44)

      The Court first analyzed the use of the strict scrutiny standard for contraceptive rights in Griswold v. Connecticut. (45) In Griswold, the Court held that, because individuals possess a constitutional right to marital privacy granted to them under the "penumbra of the Bill of Rights[,]" state statutes cannot prohibit marital couples from obtaining contraceptives. (46) In Eisenstadt v. Baird, the Court furthered this point and stated that "[i]f the right to 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." (47) The Court consequently adopted reproductive autonomy for all individuals, regardless of their marital status, and established a fundamental right protected under the Equal Protection Clause of the Fourteenth Amendment. (48) Despite the Court's commitment to protecting a woman's right to prevent unwanted pregnancy and society's advancements in science and medicine, the Court still had not addressed whether an abortion was considered a constitutionally protected fundamental right at the time. (49)

      Roe v. Wade is the first, and perhaps most influential, case in the history of women's reproductive right to choose. (50) The Court evaluated this issue of first impression after a pregnant woman challenged a Texas state criminal abortion statute that only permitted abortions when...