The State's Interest in Potential Life
13 Pages Posted: 29 Apr 2015 Last revised: 13 Aug 2015
Date Written: April 27, 2015
Courts have resolved a range of controversies by casual appeal to the state’s interest in “potential life” that the Supreme Court has held capable of overriding even fundamental rights. My analysis of this potential-life interest reveals its use to mean not one but four species of government concern that I call prenatal welfare, postnatal welfare, social values, and social effects. I demonstrate how these distinct state interests operate -- across a range of different contexts with varying levels of justificatory strength -- to resolve reproductive disputes in more precise and sound ways. I respond to institutional competence and social mediation challenges to disentangling potential-life interests.
Keywords: legal theory, social conflict, reproductive regulation, judicial decisionmaking
JEL Classification: K19, K41
Suggested Citation: Suggested Citation