The State's Interest in Potential Life

Roe v. Wade, 410 U.S. 113 (1973).

See, e.g., Davis v. Davis, 842 S.W.2d 588, 603 (Tenn. 1992); Cohen I. G. , “The Constitution and the Rights Not to Procreate,” Stanford Law Review 60, no. 4 (2008): 1135–1196, at 1135, 1144–1145, 1154.

Reva Siegel and Jed Rubenfeld have addressed the possible meanings of the state's interest in potential life in more detail than any other scholars, and each have done so in just a single paragraph. See Siegel R. B. , “Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart,” Yale Law Journal 117, no. 8 (2008): 1694–1800, at 1694, 1739, 1746–1747; Rubenfeld J. , “On the Legal Status of the Proposition That ‘Life Begins at Conception,”’ Stanford Law Review 43, no. 3 (1991): 599–636, at 599, 610–611.

Roe, 410 U.S. at 162, 150 (emphasis in original). This interest in potential life does not, the Court has held, extend to sperm or eggs, considered separately, before they are combined into a single organism. Its reach is limited to the still-unborn organism that those cells form together “postconception.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 859, 871 (1992).

Gonzales v. Carhart, 550 U.S. 124, 146 (2007).

6. Corkey v. Edwards, 322 F. Supp. 1248, 1253 (W.D.N.C. 1971), vacated by 410 U.S. 950 (1973).

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 914 (1992) (Stevens, J., concurring and dissenting in part).

Because the state's interest in potential life is not “implicated” by conduct that takes place before the union of sperm and egg, the Court has held, it “cannot be invoked to justify” the “regulation of contraceptives.” Carey v. Population Serv. Int'l, 431 U.S. 678, 690 (1977).

9. Casey, 505 U.S. at 870.

See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905) (upholding the state's authority to mandate smallpox vaccinations in service of the public health); Arar v. Ashcroft, 585 F.3d 559, 574–76 (2d Cir. 2009) (invoking national security justification to authorize the restriction of constitutional remedies available to foreign nationals).

Roe, 410 U.S. at 150.

Skinner v. State of Okla. Ex' Rel. Williamson, 316 U.S. 535 (1942).

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992).

Id., at 896–97.

Id. at 150, 154, 162.

Id., at 150.

Id., at 156, 161–162.

Id., at 162.

Id., at 163.

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).

Roe , 410 U.S. at 162–63.

Casey , 505 U.S. at 869.

Roe , 410 U.S. at 150.

Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 795 (1986) (White, J., dissenting).

Roe , 410 U.S. at 163.

See, e.g., Thornburgh, 476 U.S. at 778 (Stevens, J., concurring) (listing among possible candidates that might explain the “progressive[]” growth of the potential-life interest the fact that “the organism's capacity to feel pain, to experience pleasure, to survive and to react to its surroundings increases day by day”).

Maher v. Roe, 432 U.S. 464, 478 (1977).

See Fox D. , “Luck, Genes, and Equality,” Journal of Law, Medicine & Ethics 35, no. 4 (2007): 712–726, at 713.

See Cohen I. G. , “Beyond Best Interests,” Minnesota Law Review 96, no. 4 (2012): 1187–1274, at 1208–1111. In this and a companion piece, Professor Cohen limits his analysis to those “cases where the State seeks to influence who will be conceived not who will be born.” Cohen I. G. , “Regulating Reproduction: The Problem with Best Interests,” Minnesota Law Review 96, no. 2 (2011): 423–519, at 441. He therefore brackets from examination the regulation of practices that affect the already existing embryos and fetuses that the Supreme Court has defined as “potential life.” See supra notes 4.

See 21 C.F.R. § 101.79 (2013).

See, e.g., Houghton L. A. , “Long-Term Effect of Low-Dose Folic Acid Intake: Potential Effect of Mandatory Fortification on the Prevention of Neural Tube Defects,” American Journal of Clinical Nutrition 94, no. 1 (2011): 136–141, at 140–141.

Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 697 (Ill. 1987).

See Procanik v. Cillo, 478 A.2d 755, 762 (N.J. 1984) (affirming that “[w]hatever logic inheres in…denying the child's own right to recover” for preconception “medical malpractice” that caused him to be born – in a way that he himself could not have been otherwise – with an injury whose treatment incurs the “crushing burden of extraordinary expenses” “must yield to the injustice of that result”).

Johnsen D. E. , “Shared Interests: Promoting Healthy Births without Sacrificing Women's Liberty,” Hastings Law Journal 43, no. 3 (1992): 569–614, at 570.

See, e.g., Ginsberg v. New York, 390 U.S. 629, 639 & n.7 (1968).

See Cohen , “Best Interests,” supra note 29, at 1265–1269.

See Maher v. Roe, 432 U.S. 464, 474, 478 (1977).

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992).

Stenberg v. Carhart, 530 U.S. 914, 956–57 (2000) (Kennedy, J., dissenting).

See, e.g., Fox D. Griffin C. L. Jr. , “Disability-Selective Abortion and the Americans with Disabilities Act,” Utah Law Review 2009, no. 3 (2009): 845–905, at 853–855.

See, e.g., Meyer M. J. Nelson L. J. , “Respecting What We Destroy: Reflections on Human Embryo Research,” Hastings Center Report 31, no. 1 (Jan.-Feb. 2001): 16–31, at 16, 19, 22.

Richardson V. , “Aborted Fetus Cells Used in Anti-Aging Products,” Washington Times, November 3, 2009, at A1.

See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860 (2005).

See Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947).

Roe v. Wade, 410 U.S. 113, 116 (1973).

Webster v. Reprod. Health Servs., 492 U.S. 490, 571, 566–67 (1989) ( Stevens J. , concurring and dissenting in part).

Dworkin R. , Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Knopf, 1993): At 165 (emphasis added).

See Sanger C. , “Infant Safe Haven Laws: Legislating in the Culture of Life,” Columbia Law Review 106, no. 4 (2006): 753–829, at 807.

Fox D. , “Retracing Liberalism and Remaking Nature: Designer Children, Research Embryos, and Featherless Chickens,” Bioethics 24, no. 4 (2010): 170–178, at 172.

See Robertson J. A. , “Symbolic Issues in Embryo Research,” Hastings Center Report 25, no. 1 (Jan.-Feb. 1995): 37–38, at 37.

Harris v. McRae, 448 U.S. 297, 319 (1980).

Gonzales v. Carhart, 550 U.S. 124, 158 (2007).

Id., at 141, 157, 158.

Id., at 157–158 (internal quotation marks omitted).

See id., at 158. That the social values interest was not illegitimate was justification enough for those five justices that Congress's ban on a particular method of terminating a pregnancy did constitute an undue burden on abortion generally. The undue burden framework established in Casey elevates judicial analysis of the potential-life interest to a prominent place. For this is the interest that the plurality of the Court held that any legitimate regulation of abortion must, in the first place, advance. Only if it duly “further[s] the State's interest in fetal life” need a court even analyze whether such regulation is designed not to “hinder,” but to “inform the woman's free choice” about whether to carry a pregnancy to term, and whether it “plac[es] a substantial obstacle in the path of…[her] choice.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874–79 (1992). This standard requires courts to determine, as a baseline inquiry before reaching these other concerns, the extent to which any challenged regulation of abortion serves that potential-life interest that the joint opinion held too weak before viability to legitimately restrict, in its purpose or substantial effect, a woman's decision about whether to continue a pregnancy. Id.

Id., at 877.

See id.; id., at 882–883 (consent provision); id., at 886–887 (waiting period provision).

See id., at 882–883, 886–887.

Lawrence v. Texas, 539 U.S. 558 (2003).

Id., at 571.

See id.

Id., at 577–578 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) ( Stevens J. , dissenting)).

See id., at 580 ( O'Connor J. , concurring).

Id., at 599 ( Scalia J. , dissenting).

Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745 (5th Cir. 2008).

Williams v. Morgan, 478 F.3d 1316, 1318 (11th Cir. 2007).

Reliable Consultants, 517 U.S. at 745.

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

Id., at 69.

Id., at 108–109 (Brennan, J., dissenting).

Id., at 109.

Id., at 109–111.

See, e.g., Hoffmann-La Roche, Inc. v. Zeltwanger , 144 S.W.3d 438, 447 (Tex. 2004).

See Cohen I. G. Sayeed S. , “Fetal Pain, Abortion, Viability, and the Constitution,” Journal of Law, Medicine & Ethics 39, no. 2 (2011): 235–242, at 238, 241.

No controlling precedent has categorically ruled out that multiple non-compelling and mutually reinforcing interests could converge into a compelling one capable of overriding rights. But neither have any cases endorsed this possibility, while many have tacitly declined the invitation to do so and others have expressly rejected such interest aggregation, if only in nonbinding dicta or concurring opinions. See, e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 759–60 (2007) ( Thomas J. , concurring) (arguing in the Fourteenth Amendment context that “the combination of” “‘three essential elements”’ said to comprise a compelling interest, “does not,” if “[n]one of these elements is [itself] compelling,” thereby “produce an interest any more compelling than that represented by each element independently”); California Democratic Party v. Jones, 530 U.S. 567, 584–85 (2000) (holding that California's blanket primary violated a political party's First Amendment right to free association in part because, even though the primary served several legitimate state interests, none of those was by itself compelling).

Cf. Cohen, “Best Interests,” supra note 29, at 1217–1218 (referring to the harms that preconception conduct imposes on third parties as “reproductive externalities”).

See Donohue J. J. III Levitt S. D. , “The Impact of Legalized Abortion on Crime,” Quarterly Journal of Economics 116, no. 2 (2001): 379–420, at 381, 386–407.

See Fox D. , “Silver Spoons and Golden Genes: Genetic Engineering and the Egalitarian Ethos,” American Journal of Law & Medicine 33, no. 4 (2007): 567–623, at 581–583.

Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905).

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 915 (1992) (Stevens, J., concurring and dissenting in part).

Webster v. Reprod. Health Servs., 492 U.S. 490, 569 (1989) (Stevens, J., concurring and dissenting in part).

See Maher v. Roe, 432 U.S. 464, 478 n.11 (1977).

Heller v. Doe, 509 U.S. 312, 321 (1993).

Romer v. Evans, 517 U.S. 620, 635 (1996).

City of Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 452 (1985) (Stevens, J., concurring).

U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 535 (1973).

Romer , 517 U.S. at 632.

See Webster v. Reprod. Health Servs., 492 U.S. 490, 569 (1989) (Stevens, J., concurring and dissenting in part).

See Gonzales v. Carhart, 550 U.S. 124 (2007).

Id., at 157–158.

Id., at 158.

Id. at 157–158.

Id., at 158 (quoting Washington v. Glucksberg, 521 U.S. 702, 732 & n.23 (1997)).

Roe v. Wade, 410 U.S. 113, 150, 162–64 (1973) (emphasis omitted).

See Robertson J. A. , “Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis,” University of Pennsylvania Journal of Constitutional Law 14, no. 2 (2011): 327–390, at 335.

Gonzales v. Carhart, 550 U.S. 124, 165 (2007).

Id., at 166. But see id., at 161–163 (upholding the federal law based in part on Congress' findings, convincingly rejected by the lower court, that the regulated abortion procedure was never medically necessary).

See, e.g., Act of May 1, 2012, §§ 1–2, 2012 Ga. Laws Act 631; 2011 Ind. Legis. Serv. P.L. 193–2011 (H.E.A. 1210) (West); H.R. 5711, 96th Leg., Reg. Sess. (Mich. 2012); Neb. Rev. Stat. § 28–3,104(1) (Supp. 2010); Okla. Stat. Ann. tit. 63, § 1–738.10 (West 2011); 2011 Ala. Act. (H.B.18); 2011 Kansas Sess. Laws Ch. 41 (H.B. 2218). The Arizona and Idaho fetal pain laws were struck down for placing an undue burden on abortion. See 2012 Ariz. Sess. Laws ch. 250, overturned by Isaacson v. Horne, 716 F.3d 1213, 2013 WL 2160171, at *8 (9th Cir., 2013); Idaho Code Ann. § 18–501 (West 2011), overturned by McCormack v. Hiedeman, 900 F. Supp. 2d 1128, 1149 (D. Idaho 2013).

See, e.g., Isaacson, 716 F.3d at 2160171; McCormack, 900 F. Supp. at 1149; Women's Med. Prof'l Corp. v. Voinovich, 911 F. Supp. 1051, 1071–72 (S.D. Ohio 1995), aff'd, 130 F.3d 187 (6th Cir. 1997). Glenn Cohen and Sadath Sayeed have suggested an alternative way to construe fetal pain statutes as seeking not to prevent fetal pain, but to establish the capacity for such pain sensation as “itself a criterion of constitutional personhood, such that pain-capable fetuses are constitutional persons.” See Cohen Sayeed , supra note 78, at 240. However, the unborn have never been thus recognized in the law as persons” or “accord[ed] legal rights.” Roe v. Wade, 410 U.S. 113, 156, 162 (1973).

See Women's Med. Prof'l Corp., 911 F. Supp. at 1071–72.

See id., at 1072 & n.28.

See id., at 1073.

See id.

Id., at 1071–72 and n.28.

Id., at 1074.

See, e.g., Stenberg v. Carhart, 530 U.S. 914, 920–21 (2000) (recognizing that citizens hold “virtually irreconcilable” beliefs about when “life begins”).

Calabresi G. , Ideals, Beliefs, Attitudes and the Law: Private Law Perspectives on a Public Law Problem (Syracuse: Syracuse University Press, 1985): At 95–96 (internal quotation marks omitted).

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

Id., at 150 (emphasis added).

Id., at 163 (emphasis added).

Gonzales v. Carhart, 550 U.S. 124, 172 (2007) ( Ginsburg J. , dissenting).

Roe, 410 U.S. at 150.

Calabresi G. , “Bakke as Pseudo-Tragedy,” Catholic University Law Review 28, no. 3 (1979): 427–444, at 429.

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 914–15 (1992) (Stevens, J., concurring and dissenting in part).

See Fox , supra note 51, at 173.

Stenberg v. Carhart, 530 U.S. 914, 921 (2000).

See Fox , supra note 51, at 173.