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Basically, the ruling had three legal pillars. It held (1) that the constitutional "right of privacy" broadly includes a woman's freedom to choose abortion; (2) that the unborn are not "persons" entitled to constitutional protection; and (3) that the state has a compelling interest in, or may protect, only the viable fetus (the fetus that might survive outside the womb, even with artificial life support).

The weakest point of Roe is the third, which concerns viability of the fetus. Roe allows that after viability, the state may regulate or prohibit abortion. We should note that there is the exception of protecting the mother's health, which can be interpreted very broadly to include emotional distress or familial upset. Narrowing that exception may be. the first small step. For example: Is the undesired sex of the fetus a valid health reason for a late-term abortion? It is possible that this choice would be found to be blatant sex discrimination.

In addition to narrowing the meaning of "therapeutic abortion," this legal pillar can also be weakened by expanding the state's interest in the unborn child. When the Court wrote in Roe that the state has a compelling interest in the viable fetus, it relied on medical evidence estimating viability at approximately 28 weeks. Medical advances since then have added nearly 8 weeks, moving viability to 20 or 21 weeks. Existing in vitro ("test tube baby") fertilization technology, combined with the development of an artificial womb, could put viability at conception. The movable line of viability points up its arbitrariness as a basis for protecting the right to life. The Supreme Court eventually may abandon viability as a "factual" criterion concerning the right to abortion.

Scientific and medical developments challenge other factual premises. The Court called the fetus "potential life." Yet, physicians now treat the child in the womb as a patient. Intrauterine blood transfusions can be done safely, and other fetal surgery is beyond the experimental stage. Photography of the unborn child compellingly illustrates its humanity, exploding the myth that the fetus is "just a blob of tissue."

Recent attention to fetal pain adds to the prolife arsenal. If for no other reason than the humanitarian instincts that ban unanesthetized experimentation on animals, the abortion of the sensing, reacting, unborn child is objectionable. At the same time as these developments, the true physical health risks of pregnancy are being reduced. This challenges the Court's assertion that abortion is safer than pregnancy and further limits the exceptions for therapeutic abortion.

To summarize: Medical technology may provide the factual tools for the assault on Roe, but the legal ammunition is set off by legislation. As we have said, a lawsuit on abortion rights is brought in response to a statute that regulates abortion in some way. In the words of Prof. Kenneth Ripple of the Notre Dame University School of Law, when a legislature finds that "life capable of existence outside of the uterus is in fact present" at an early stage of pregnancy, the courts "would be forced to confront [those] findings."

Later cases would build on the legal victories of earlier cases. Ideally, the Supreme Court would not only declare that the state has a compelling interest in protecting fetal life from conception onward, it would also demolish the other two legal pillars of Roe by declaring that the "right of privacy" does not include abortion, and that the unborn are constitutional persons.

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January (Web-only) 2003, Vol. 47