The State's Interest in Potential Life

13 Pages Posted: 29 Apr 2015 Last revised: 13 Aug 2015

See all articles by Dov Fox

Dov Fox

University of San Diego: School of Law

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

Fox, Dov, The State's Interest in Potential Life (April 27, 2015). Journal of Law, Medicine and Ethics, Vol. 43, No. 2, 2015, p. 345-57, San Diego Legal Studies Paper No. 15-191, Available at SSRN:

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

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