In Roe v. Wade, (1) the Supreme Court of the United States recognized a right under the federal constitution for a woman to terminate a pregnancy. (2) The Court held that a "fetus" was not a "person" for purposes of Constitutional protection. (3) In Roe's companion case, Doe v. Bolton, (4) decided the same day, the Supreme Court extended this new abortion right throughout all nine months of pregnancy, through the health exception that allows an abortion if either the "psychological" or the "physical wellbeing" (5) of the mother is jeopardized.
In Planned Parenthood v. Casey, (6) the Supreme Court affirmed the abortion right. (7) While noting the legitimacy of regulation due to the state's interest in the "life of the fetus," (8) the Court holding was not based on a "privacy right," as Roe itself had been, but under a "liberty interest" derived from the Fifth and Fourteenth Amendments. (9) In Stenberg v. Carhart, (10) the Court struck down a Nebraska statute prohibiting partial birth abortion. (11) By insisting on a health exception in every instance in which an abortion procedure is necessary to preserve the life or health of the mother, (12) the Supreme Court demonstrated that it would subject any state regulation of abortion to strict scrutiny. (13)
The thirty years since the decisions in Roe and Doe have witnessed a continuous public debate and political controversy over their legitimacy. (14) Despite a plea from the plurality in Casey to end this debate and to accept the decisions, (15) the argument continues.
For those who oppose Roe, the decision seriously distorts our federal system. (16) Roe's opponents find no warrant in the federal constitution for a right to abortion. They view the creation of such a right by the Supreme Court as judicial usurpation of the functions that the Constitution allots to the legislature. (17) In the eyes of opponents, the worst consequence is that the decision removes the protection of the law from an entire class of human beings. (18)
For those who support Roe, the Supreme Court rightly recognized a woman's fundamental right to control her own body. (19) Many supporters view any restriction on such a fundamental right as unacceptable. Thus, after Congress passed the "Partial Birth Abortion Ban," (20) but before President George W. Bush signed it into law and despite the fact that the law seeks to proscribe only a particular abortion procedure, (21) opponents filed lawsuits in several different federal district courts seeking to have the ban enjoined. (22)
The supporters of the Roe-related jurisprudence often argue that the right of a woman to control her body is at stake in all of these cases. (23) Indeed, Justice Harry Blackmun, who wrote the Roe opinion, stated: "We, therefore, conclude that the right of personal privacy includes the abortion decision...." (24)
Of course, the primary value of Roe and its progeny is the precedent it sets in cases involving abortion. The Supreme Court has rejected the logic of personal autonomy as a justification for a constitutional right to assisted suicide. (25) Nonetheless, I shall attempt to show that Roe's effects have not been limited to the abortion context. (26) Rather, the legal fictions employed in the Roe jurisprudence that deny the protection of the law to one class of human beings have extended far beyond the abortion context to endanger other human beings in very different situations.
I. HUMAN ORIGIN AND DEVELOPMENT
There is no mystery about when human life begins. It is only within the political and ideological context that this matter is contested. (27) When the matter is not being debated in a courtroom or on the floor of the Congress, when it is left for scientific analysis, the resolution is clear.
Human life begins, in the normal, ordinary case, at "conception," that is to say, at fertilization. (28) It begins when the male germ cell, the sperm, penetrates the female germ cell, the oocyte. …