American Bioethics: Crossing Human Rights and Health Law Boundaries

No bioethics or health law issue in America has defied so many attempts to alter its contours as abortion.¹ Abortion was a contentious issue in bioethics when American bioethics entered early adolesence in the late 1960s, and it remains intransigent today. The political and bioethics debates on abortion over the past 30 years have shifted among various dichotomous views of the world: life versus choice, fetus versus woman, fetus versus baby, constitutional rights versus state rights, government versus physician, and physician and patient versus state legislatures. Hundreds of statutes and almost two dozen U.S. Supreme Court decisions on abortion later, the essential aspects of Roe v. Wade,² the most controversial health-related Court decision in history, remain substantially the same as they were in 1973. Both courtroom and legislative attempts to overturn Roe have failed. Pregnant women have a constitutional right to choose abortion. The fetus is not a person under the Constitution. States still cannot make abortion a crime (either for the woman or the physician) before fetal viability. States can outlaw abortion after fetal viability only if there is an exception that permits abortion to protect the life or health of the pregnant woman. And states can impose restrictions on abortion before fetal

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