The summer 1998 issue of The Human Life Review carries an article by Robert Destro titled “Is Roe v. Wade Obsolete?”
Destro describes recent divorce litigation involving custody of frozen embryos: “For Mr. Kass, the frozen ‘pre-zygotes’ were property … Maureen Kass had a different view. Relying on Roe [v. Wade,] she argued that ‘a female participant in the [in vitro fertilization] procedure has exclusive decisional authority over the fertilized eggs created through that process, just as a pregnant woman has exclusive decisional authority over a non-viable fetus.’”
But “the New York appellate courts unanimously agreed….That a woman's right to privacy and bodily integrity are not implicated before implantation occurs
…” The literal words of Roe v. Wade cannot be read in any other way. Roe v. Wade “rests on an explicit ‘balance’ struck by the Supreme Court between the interests of pregnant women and the right of the State of Texas to assert its sovereign power to protect the unborn from harm. Not only did this ‘balance’ affirm (at least in theory) a limited power to protect the unborn after viability, it simply assumed that unborn children capable of existing outside the womb of their mother were within the protective ambit of state law … this raises an intriguing question: Is Roe v. Wade obsolete?”
Destro notes that “Because the ‘rule’ (or ‘holding’) of Roe v. Wade does not apply to many of the controversies that arise under the new reproductive technologies, the Court of Appeals would naturally look to state law. It too provides little guidance: Legislatures have not decided what should be done either … Kass levels the field, and puts pro-life and abortion rights advocates in a roughly equal political bargaining position.”
The silver lining in Kass's disposal of the frozen zygotes’ right to life is that “the embryonic human beings … either have, or can have, a separate existence
… in a small but increasing number of cases, technology has made it possible for the ‘right to terminate a pregnancy’ to coexist with the child's right to life.”
Kass shines a light on the difference between Roe and unlimited pro-abortion advocates: “To pro-abortion activists… Roe v. Wade means that the states may “never” intervene to protect the life of an unborn child
… But this is not what the Court said in Roe v. Wade. Its words — which have the force of law — speak for themselves. ‘[Jane Roe] and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.’”
“Partial-birth abortion legislation challenges the ‘broad’ reading of abortion rights… [at the “end” of pregnancy and] Kass demonstrates that Roe v. Wade is increasingly irrelevant at the ‘start’ of pregnancy too … The debate over ‘partial-birth’ abortion demonstrates
… that the phrase ‘termination of pregnancy’ need not be viewed, in all instances, as a euphemism. ‘Termination of pregnancy’ and the death of the unborn child are biologically speaking separate events. It serves the interests of pro-abortion advocates to use the terms interchangeably. We must develop a new vocabulary.”
When we look at abortion or “right to die” cases, one “issue is what, if any, protection the law provides to individuals in need of technology to survive…Unfortunately, the courts have made a judgment that is all too common. They have decided, once again, that some human beings are ‘more equal’ than others.” “They have done this before, and we are still living with the consequences. In Dred Scott v. Sandford, the United States Supreme Court held that persons of African descent had no rights a white person or State was bound to respect…” Destro argues that the contractual claim to ownership of frozen embryos recognized by the Kass decision “is the functional equivalent of slavery … Although Roe holds that no state may ‘override the rights of the pregnant woman that are at stake’ when she seeks to terminate a pregnancy, the post Roe case law, both state and federal, makes it clear that Roe does not control when the status issue arises in a case ‘other than’ legal abortion. In many, if not most, of these cases, the unborn child is viewed by the law in the same manner as any other ‘person in the whole sense…’ The task of the pro-life movement is to make the case — convincingly — that Congress and state legislatures should provide protection to unborn human beings in every setting where a ‘liberal'reading of the Roe law permits it to do so.” In so doing, we will be taking advantage of technology, which “is pushing Roe v. Wade toward the ‘dustbin of history.’”
Ellen Wilson Fielding writes from Davidsonville, Maryland.
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