Roe and the New Frontier

Abstract

Although the legal issue of abortion was 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. The abortion debate rages on the terms of a right to fetal life and an opposing right to a woman's choice, but 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 that a fetus is not a constitutional person into areas of law outside the context of abortion. Beginning with Roe v. Wade, Part 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. evaluates certain popular and legal thought surrounding the abortion debate, painting a fuller 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. Finally, Part III. examines the tenability of a judicial solution to this problem.