Roe and the New Frontier
Roy, Lisa Shaw, Harvard Journal of Law & Public Policy
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
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. …