Electronic copy available at: http://ssrn.com/abstract=1889452
COMPROMISING THE UNCOMPROMISABLE: A PRIVATE
PROPERTY RIGHTS APPROACH TO RESOLVING
THE ABORTION CONTROVERSY
Dr. Walter Block1 and Roy Witehead2
In this article we advocate a liberty and private property rights
approach to the issue of abortion. While some contend that the famous
cases of Roe v. Wade and Planned Parenthood v. Casey settles forevermore
the question of whether a woman had a legal right to an abortion, a great
deal of controversy stdl lingers. This is so because abortion has become all
too commonplace. About thirty-five percent of all American women w d
obtain an abortion during their childbearing years.' This easy availability
fuels the ire of and represents the equivalent of a holocaust to anti-abortion
advocate^.^ Some believe that 39 mdlion lives have been snuffed out by
abortion since Roe was de~ided.~ President George W. Bush is critical of
the easy availability of abortion^.^ Critics claim his administration is
engaged in a war against women's reproductive rights by appointing anti-
abortion advocates to the federal standing advisory cornrnittee of the FDA
on reproductive health and trying to establish a link between breast cancer
1. PhD, Wirth Eminent Scholar Endowed Chair in Economics, Loyola University,
New Orleans. The senior author of this article wishes to thank David Kennedy, Anthony
Sullivan, and the Trustees of the Earhart Foundation for the financial support necessary to
write this article. The opinions expressed herein, of course, reflect the thinking of the
This article is dedicated to the anti-abortionists most akin to the abolitionists in the
early part of the 19th century who not only wrote and spoke out against slavery, but
actually did something to stop it: namely, those who physically interfered with abortion
clinics and wi~h abortionists. But, as will be explained below, this applies only to those
who help stop abortions when eviction is an option.
The authors of the present article wish to congratulate the editors of the Appalachian
Journal of Law for their courage in publishing it. This article was accepted for publication
previously by both the Thomas M. Cooley Law Review and the Manitoba Law Journal; in
each case, the editors reneged and refused publication despite their initial acceptance.
2. JD, LLM, Associate Professor of Business Law, University of Central Arkansas.
3. 410 U.S. 113 (1973).
4. 505 U.S. 833 (1992).
5. See generally Roger Simon, The Argument that Never Ends, U.S. News, www.usnews.
com/usnews/issue/030120/usnews/20roe.htm (Jan. 20, 2003).
8. See id., where White House Chief of Staff Andrew Card is quoted as saying that
ending abortion is "a high moral priority" for the president.
Appalachian Journal of Law
slim as they are in the House and Senate, will lead to a push for the aboli-
tion of a woman's right to an abortion.
Some members of the Senate have made it clear that they intend to
do what they can to overcome the holding of Roe v. Wade.'' Anti-abor-
tion activists believe that there are two key steps that must be achieved in
order to overturn Roe v. Wade." First, they must establish by law, govern-
ment policy, and most important, in the minds of voters, that a fetus12 is a
human being.13 If a fetus is human" it warrants the equal protection of the
law afforded to the mother. Secondly, anti-abortion activists seek to get
more conservative judges appointed.15 On the other hand, those opposed
to whittling away the so-called privacy right to abortion announced in Roe
v. Wade, desperately seek to thwart the confirmation of conservative
judges. Witness the brutal and unprecedented filibuster of an appeals court
judge in the case of Miguel Estrada.
Many believe that the current Republican majorities, as
Before turning to our discussion of the liberty and property interest
involved in the abortion question, we commence with a discussion of the
guiding cases of Roe v. Wade l6 and Planned Parenthood v. Casey.17 Roe was
a pregnant single woman who brought an action challenging the Texas
criminal abortion laws that prevented procuring or attempting an abortion
9. Caryl Rivers & Rosalind C. Barnett, The War Against Reproductive Rights, Boston
Globe A15, (Mar. 1, 2003).
10. See generally Jim VandeHei, GOP Looks To Move Its Social Agenda, Wash. Post A1
(Nov. 25, 2002).
12. The question of whether the mother is carrying a fetus or an unborn child is an
emotionally charged one in the abortion debate. Witness the uproar that followed when
the Boston Globe described an unborn child lulled in the mother's womb by a stray gunshot
as a fetus. Several readers were "horrified" by the Globe's alleged insensitivity for the life of
what they regarded as a living baby. They thought the Globe was taking sides in the
abortion debate. The paper's concern about the outburst of criticism required a response
by its ombudsman. The paper's editors decided in the future to use terms "like the chdd
the wonian was bearing," rather than fetus. See Christine Chinlund, Fetus or Baby, Boston
Globe A13 (Feb. 17, 2003).
13. Supra n. 5. See also, Meghan Cox Gurdon, Mother $All Rights, Wdl St. J., Jan. 21,
2003, where the author writes, "Abortion doctors dispatch unwanted 'fetuses,' but at
crowded fertility clinics those same organized clusters of cells are referred to as 'babies.'
Well, which is it?"
14. In Mississippi "it" is a person. The Mississippi Supreme Court recently decided that
a non-viable fetus was a person for the purposes of the state's wrongful death statute. See
Federal Credit Union v. Tucker, 853 So.2d 104 (Miss. 2003).
15. Supra n. 5.
16. Roe, 410 U.S. 113.
17. Planned Parenthood, 505 U.S. 833.
20051 Compromising the Uncompromisable 3
except on medical advice for the purpose of saving the mother's life.18
The only exception to the Texas criminal proscription was the purpose of
saving the life of the mother.19 Roe claimed she was entitled to terminate
her pregnancy by an abortion performed by a competent physician under
safe medical condition^.^^ She could not obtain an abortion in Texas
because her life was not threatened by the pregnancy.21 This plaintiff
alleged she could not afford to travel to a jurisdiction where abortions were
legal." She said that the Texas statutes infringed upon her right of person-
nel privacy under the First, Fourth, Fifih, Ninth, and Fourteenth Amend-
ments of the Con~titution.~~
In effect, she claimed that the Texas statute
infringed the right of a pregnant woman to terminate her pregnancy.24
This right is discovered, according to Roe, in the personal liberty rights
found in the Fourteenth Amendment's Due Process Clause and/or in the
personal, marital, familial, and sexual privacy protected by the B i l l of
Speahng for the majority, Justice Blackman indicated that there are
three "recognized" important life and health risks associated with abor-
t i ~ n . ~ ~ They are: "a. the skill of the physician, b. the environment in
which the abortion is performed, and above all c. [tlhe duration of preg-
nancy, as determined by uterine size and confirmed by menstrual
Given the foregoing, the Court decided that the state has at least
three legitimate interests in regulating abortion. One is to see that the
abortion is performed under conditions that insure safety for the patient.28
This interest includes the physician and his staff, facilities used, and the
availability of adequate care for any complication or emergency that might
arise either during or after the procedure.29 Justice Blackman pointed out
that this interest is justified by the high mortality rate at non-regulated
18. Roe, 410 U.S. at 120.
19. Id. at 118.
20. Id. at 120.
24. Id. at 129.
25. Id. See generally, Griswold v. Connecticut, 381 U.S. 479, 481-486, where the Court
decides that the Connecticut statute forbidding the use of contraceptives violates the right
of marital privacy which is within the penumbra of specific guarantees of marital rights.
The Court concludes that the idea of allowing the police to search the marital bedroom for
evidence of the use of contraceptives is repulsive to the privacy that protects the marriage
relationship. Id. at 486.
26. Id. at 145.
27. Id. (internal quotation marks excluded).
28. Id. at 150.
4 Appalachian Journal of Law [VOL. 4:l
"abortion ~ S . " ~ O
protecting the health of the mother.
Finally, the state has an interest, or even a duty, to protect prenatal
life." Justice Blackrnan indicated that some wish that ths interest com-
menced at c~nception.~~
If life begins at conception, obviously, the only
legitimate justification for abortion would be to protect the life of the
mother." But the Court did not adopt that approach. The majority
decided that they could give recognition to a less rigid rule to determine
when a potential life is involved.34
The Court said that while the Constitution does not mention any
specific right to privacy, it has long recognized a right of personal privacy
and that there is some guarantee of zones of privacy under the Constitu-
t i ~ n . ~ ~ In any event, the right of privacy, wherever found, includes a
woman's decision on whether or not to have an abortion.36 AU sorts of
detrimental results might naturally flow from the state denying a woman's
right to an abortion. Among them are psychological harm, lack of child-
care, the trauma of the unwanted child, the stigma of being an unwed
mother, the mental and physical health of the mother, the resources of the
mother, and the mother's ability to care for the childa3'
Roe argued that a reasonzble consideration of these factors made the
woman's right to an abortion absolute." In other words, she could termi-
nate her pregnancy at any time for whatever reason she chose. The Court
The Court held that at some point in the pregnancy, the state's inter-
est in safeguarding health, maintaining medical standards, and protecting
the life of the fetus, become compelling enough to sustain legitimate regu-
lation of the factors that govern the abortion decision.'O As a consequence,
the mother's privacy interests are not absolute.
The Court continued, "We, therefore, conclude that the right of per-
sonal privacy includes the abortion decision, but that this right is not
unqualified and must be considered against important state interests in reg-
ulation."" The majority believed that at some point the government's
As a consequence, the government has an interest in
33. Id. (otherwise, abortion would clearly be murder.)
34. Id. at 150-152.
35. Id. See Gviswold v. Connecticut, 381 U.S. 479, (1965)(holding that a privacy right to
use contraceptives fit within the penumbra of rights found in the Bill of Rights).
36. Roe, 410 U.S. at 153.
40. Id. at 154.
Compromising the Uncompromisable
interest in protection of health, medical standards, and prenatal life,
became compelling enough to justitjr regulations that limited the woman's
right to an abortion." It is long established that when fundamental rights
are involved that any regulations impacting those rights are only justified
when there is a compelling state interest.43 But the government has a com-
pelling interest in protecting health and prenatal life that justifies regula-
tion, according to this finding.44
The Court next took up the question of whether or not a fetus is a
"person" within the meaning of the Fourteenth Amendment of the Con-
~titution.~This is a critical issue because if a fetus" is a person from the
moment of conception47 then a right-to-life would be guaranteed by the
Fourteenth Amendment." Sadly, for judges, there is little authority in the
Constitution for deciding on a definition of a "per~on."'~ In almost all
instances this word is used in the post-natal sense.'' As a consequence, the
Court was convinced that the word "person" does not refer to the
unborn." That said, the Court's conclusion that a fetus is not a person
does not foreclose the state's interest in regulating abortion. Why?
42. Id. at 155.
43. Id. (citing Kramer v. Union Free Sch. Dist., 395 U.S. 621, 627 (1969)).
44. Id. at 156.
45. Id. at 157.
46. Recently the Michigan Court of Appeals took up the question of whether an
expectant mother who stabbed to death her boyfriend could use a "defense of others
defense" because she feared for her fetus. The fetus was in its sixteenth or seventeenth
week and would not be considered viable under Roe v. Wade. One of the issues was
whether an unborn child was a person entitled to the defense. The trial court ruled that
there had to be a "living human being independent of the mother." The Michigan Court
of Appeals decided that the defense could be used because the state's public policy was to
protect a fetus from an intentional act. They found the basis for the public policy in the
Michigan's Fetal Protection Act. See People ofthe State ofMichigan v. Kurr, 253 Mich.App.
317 (Mich. App. 2002), appeal denied, 467 mch. 943 (2003).
47. One commentator sums up the question in stark terms. "If the fetus isn't human,
then getting an abortion is no hfferent than getting a tattoo or a nose job. It's a victimless
procedure that is nobody's business and should be legal. If a fetus is human, then the logical
conclusion is inescapable: abortion by definition is homicide and should be illegal except
when, to save the her own life, the mother aborts in self-defense." See Norah Vincent,
Wrong Foctis on Abortion Issue, Los Angeles Times (Jan. 9, 2002). (available at www.latimes.
48. Roe at 156-157. See supra n. 5, where the Simon article points out that to some in
our society abortion represents an American holocaust resulting in the "mass murder of the
unborn that has claimed more than 39 ndion lives since the Supreme Court made
abortion legal on Jan. 22, 1973.".
49. Id. at 157.
51. Id. at 158.
6 Appalachian Journal of Law
Because at some point in the life cycle, the fetus surely becomes a person
entitled to life.j2
The pregnant woman is not alone in her privacy. She is joined by
and possesses an embryo and later a fetus, and it is appropriate according to
the legal philosophy we are examining, for the state, at some point, to
develop an interest in the health of both the mother and that of the poten-
tial human life.j3
Texas argued that life begins at c~nception.'~ The Court indicated
that it need not resolve the difficult question of when life begins because
even those trained in philosophy and theology are unable to agree on an
answer.j5 And it refused to speculate on the correct an~wer.~"
The Court pointed out that on the question of when life begins, the
common law found great significance in q~ickening.~' On the other hand,
physicians and scientists have regarded quickening with less interest and
have generally focused on conception, live birth, or some interim point in
which the fetus becomes "viable."58 The Court concluded that viabilitys9
usually occurs at about twenty-eight weeks but, in some cases, may occur
The majority announced that it would not agree that by adopting the
Texas theory that life begins at conception that the state may override the
privacy rights of the pregnant woman." The Court, however, also
announced that the government had a legitimate interest in protecting the
health of the pregnant woman and the potentiality of the human life she
bears.62 How best to do that was the tricky question. The Court recog-
nized that the interest of a woman seeking an abortion and the interest of
the potential life in her womb may conflict with one another. At some
point during the woman's pregnancy, the interests of each party become
"~ornpelling."~~ The question to be resolved is "When is that point?"
First, the Court dealt with the health of the mother. It announced
that with respect to the state's legitimate interest of helping her, the "com-
pelling" point, in light of present medical kn~wledge,'~
is at approximately
52. Id. at 159.
57. Id. at 160.
59. Id. (the ability to live outside the womb.)
61. Id. at 162.
63. Id. at 162-163.
64. Does this mean that me&cal advances might result in a different "point?" See below
for a discussion of this question.
Compronzising the Uncompromisable
the end of the first trimester." From this point on, the state may monitor
the abortion procedure to the extent that the regulation relates to the pres-
ervation and protection of maternal health.66
It follows, on the other hand, that for the period of pregnancy prior
to the "compelling" point, the doctor and the pregnant woman are free to
determine whether or not the patient's pregnancy should be terminated."
If they so decide, the woman is entitled to an abortion, free from any
interference from the state.68
Next, the Court dealt with the interests of what is called "potential
life. "" Consequently, the state's legitimate interest in potential life, the
so-called "compelling7' point, is at ~iability.~' At this stage of the preg-
nancy the state has a compelling interest in the potential human life con-
tained in the woman's womb.71 The Court decided that the Texas penal
code was too restrictive because it made no distinction between abortions
performed early in pregnancy, before the viability of life, and those per-
formed later.72 Secondly, it was too restrictive in that it limited abortion to
a single reason, "saving" the mother's life.73
The Court indicated that its decision allowed the state to place more
stringent restrictions on the availability of abortion as the length of the
pregnancy increases, as long as they are tailored to consider the "compel-
ling" interest of both the mother and potential life.
65. Id. at 163 (The court said this is a reasonable point because mortality in abortion
prior to this point is less than mortality in normal childbirth).
66. Id. (The court listed examples of permissible regulation as "qualifications" of the
doctor, "licensure" of the doctor, and designation of the facility as a clinic or a hospital.)
70. Id. (The ability to live outside the womb.)
71. Id. (Once the state has a compelling interest in the viable life it may regulate
72. Id. at 164.
73. Id. at 164-165. Here, the court summarized and repeated its decision. The court
indicated: "A state criminal abortion statute of the current Texas type, that excepts &om
criminality only a life-saving procedure on behalf of the mother, without regard to
pregnancy stage and without recognition of the other interests involved, is violative of the
Due Process Clause of the Fourteenth Amendment. (a) For the stage prior to
approximately the end of the first trimester, the abortion decision and its effectuation must
be left to the medical judgment of the pregnant woman's attending physician. (b) For the
stage subsequent to approximately the end of the first trimester, the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion procedure in
ways that are reasonably related to maternal health. (c) For the stage subsequent to viability,
the State in promoting its interest in the potentiality of human life may, if it chooses,
regulate and even proscribe, abortion except where it is necessary, in appr~priate medical
judgment, for the preservation of the life or health of the mother."
Appalachian Journal of Law
Roe v. Wade was decided in 1973. For nineteen years the Court's
determination that the Constitution protects a woman's right to terminate
her pregnancy in its early stages was sharply questioned. Finally, in 1992
in the case of Planned Parenthood o f Southeastern Pennsylvania v. C~sey,'~
Supreme Court was given an opportunity to reexamine the principles that
undergird Roe. Recall that Roe decided that a woman's decision to termi-
nate her pregnancy is a "liberty" protected by the substantive rights found
in the Due Process Clause of the Fourteenth Amendment. Obviously, the
Fourteenth Amendment does not specifically describe the limits of the
substantive rights contained therein. Consequently, the adjudication of
substantive due process rights requires the Supreme Court to exercise its
judgment in determining boundaries between the individual's liberty and
the demands of society in protecting the unborn. Those boundaries were
again explored in Planned Parenthood. The issues raised in Planned
Parenthood were framed by six provisions of the Pennsylvania Abortion Act
of 1982. Briefly they are that the Act requires that: 1. the woman seelng
the abortion give her informed consent prior to the abortion procedure; 2.
that she be provided certain information at least 24-hours before the abor-
tion is performed;75 3. that in the case of a minor, she have the consent of
one of her parents;76 4. that a married woman who seeks an abortion must
indicate in writing that she has notified her husband of the intended abor-
t i ~ n ; ~ ~
5. compliance is exempted with the first three requirements in the
event of a "medical emergen~y;"~'
and, 6. there are reporting requirements
placed upon facilities that provide abortion service^.^' The district court
found that all provisions at issue were uncon~titutional.~~
Appeals for the Third Circuit upheld a l l the regulations except for the
husband notification req~irement.~'
The High Court comnienced its analysis by stating that the Due Pro-
cess Clause of the Fourteenth Amendment provides a coilstitutional pro-
tection of a woman's decision to terminate her pregnan~y.'~ The Court
indicated the controlling word in the Fourteenth Amendment that governs
The Court of
74. 505 U.S. 833 (1992).
75. Id. at 844.
80. Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa. 1990), afd in part and rev'd
in part, 947 F.2d 682 (3d. cir. 1991), afd in part revJd in part, 505 U.S. 833 (1992).
81. Planned Parenthood v. Casey, 947 F.2d 682 (1991), afd in part and rev'd in part, 505
U.S. 833 (3 992).
82. Planned Parenfhood, supra note 74 at 846.
Compromising the Uncompromisable 9
a woman's right to an abortion is "liberty."83 The Court commenced its
analysis by reaffirming what it called the three essential holdings of Roe:
1. The right of a woman to have an abortion before viability and
without undue interference from the state.84 (As previously indicated,
before viability, the state's interest will not support the imposition of a
substantial obstacle to the woman's elective right to an elective procedure.)
2. The state's power to restrict abortions after fetal viability, when
the law has exceptions for pregnancy problems that might endanger the
woman's life or health.85
3. The state has a legitimate interest from the outset of pregnancy in
protecting the health of the woman and the life of the fetus that may
The Court clearly indicated that it continued to follow each of the
foregoing three principle^.^' The majority concluded that any reservations
the justices may have expressed about the central holding of Roe are clearly
outweighed by the individual liberty interests involved when they are
combined with the force of the doctrine of stare decisi~.~~
pointed out that although much criticized, Roe has not been proven
The High Court said that even if the three principle holdings of Roe
were in error that would only concern the strengths of the state's interest
in fetal protection. That is, the central recognition afforded women's lib-
erty interest by the Constitution would stand even if Roe was o~erruled.~~
According to the Court, the liberty interest, which supports the Roe deci-
'[Tlhe interest in independence in making certain kinds of
important decisions.' While the outer limits of this aspect of
protected. liberty have not been marked by the Court, it is
clear that among the decisions that an individual may make
without unjustified government interference are personal
decisions relating to marriage, procreation, contraception,
family relationships, and child rearing and education.''
The High Court forcefully stated that there is a constitutional liberty
interest on the part of a woman to have some freedom to terminate her
88. Id. at 853.
89. Id. at 855.
90. Id. at 858.
91. Id. at 858. (citing Carey v. Population Serv., 431 U.S. at 684-685 (citations omitted)).
10 Appalachian Journal of Law
pregnancy.92 As a consequence, the Court believed it was unable to repu-
diate the constitutional basis on which Roe was decided.93 But that right
is not completely free from reasonable state regulation that protects the
interest of both the woman and the unborn
in Roe, at the point of viability the government has an interest of sufficient
force to regulate the right of the woman to terminate her pregnancy.95
The Court then faced the central criticism that the line drawn by the
Roe court to allow government intervention, the viability of the fetus, was
somewhat puzzling.96 The Planned Parenthood court's response was that the
claims of women to retain the ultimate control over their destiny and their
bodies, claims implicit in the very meaning of liberty, required it to decide
when the unborn child was ~iable.~'
The Court said, "Liberty must not be
extinguished for want of a line that is clear."98 But the duty of the court
required it to draw a line.
The Court forcefully concluded that the line should be drawn at via-
bility. Thus, before that time a woman has a right to choose to have an
abortion." There are two reasons to abide by that principle. First, while
there is always a risk that the judicial act of line drawing may seem arbi-
trary, Roe was a reasonable decision reached with great care.'''
doctrine of stare decisis requires that the Court adhere to the principles
announced in Roe. Secondly, viability is the time when there is a possibil-
ity of maintaining and nourishing a life outside the womb. Consequently,
the independent existence of a second life can reasonably be the object of
state protection that now overrides the liberty interest of the woman."*
The Court was much concerned that overturning Roe's limitation on
state power would result in serious inequity to people who had relied on
the decision for close to two decades. The judges pointed out that men
and women have organized intimate relationships and made choices that
define themselves and their places in society relying on the availability of
an abortion in the event that contraception should fail.lo2 The majority
believed that the ability of women to participate equally ir, the economic
and social life of the nation had been greatly advanced by their capacity to
control their reproductive lives.lo3 Overruling Roe would come at a great
And, as the Court said
92. Id. at 869.
99. Id. at 870.
101. Id. See Roe, 410 U.S. at 163.
102. Planned Parentlzood, 505 U.S. at 856.
Compromising the Uncomprornisable
cost for people who have adopted their thmlung and their lifestyles on the
basis of the holding of that case.lo4
It is possible that maternal health care advances after the Roe decision
may very well allow safe abortions at a later time than the current viability
standard.lo5 Also, post Roe neonatal care may have advanced viability to a
point somewhat earlier in time. Io6 However, these possible changes only
go to the time limits of the competing interests of the mother and the
They have no bearing on the correctness of the critical
holding of Roe that viability - at whatever stage in the pregnancy this
applies - marks the earliest point in which the state's interest in fetal
development is sufficient to justify a legislative ban on abortion.lo8
Additionally, the Court was much concerned that overruling Roe's
central finding, in addition to being contrary to the doctrine of stare decisis,
would also weaken the Court's authority to exercise judicial power and
function as a supreme court of the land. Afier all, the Court's authority
depends greatly on its reputation for fairness and consistency. Decisions
like Roe, said the judges, are entitled to a strong and effective use of the
doctrine of precedence to counter the resistance to implementati~n.'~~
Overturning the central ideas found in Roe would result in a great loss of
confidence and unnecessarily damage the Court's reputation.
The judges then announced a number of guiding principles that
should control their assessment of the Pennsylvania statute. They are: 1.
To protect the central liberty rights recognized by Roe and at the same
time to accommodate the state's compelling interest in protecting potential
life, an undue burden standard should be employed.lI0 An undue burden
exists and is an invalid law, if its purpose or effect is to place substantial
obstacles in the path of a woman seeking an abortion before her fetus
attains viability."' 2. The Court rejected Roe's rigid trimester frame-
work."' It declared that the state might take reasonable measures to insure
that the woman's choice about whether to have an abortion is informed.l13
Measures, h~wever, designed to advance this informed choice interest
should not be invalidated when their purpose is to persuade the woman to
choose childbirth over abortion."'
3. Finally, the government may
attempt to further the health and safety of a woman seeking an abortion
104. Id. at 856.
105. Id. at 860.
107. Id. at 861.
108. Id. at 860.
109. Id. at 865.
110. Id. at 878.
111. Id. at 870.
112. Id. at 878.
Appalachian Journal of Ldw
but may not impose health regulations that present a substantial obstacle to
the woman's ability to obtain an abortion.Il5 4. Adoption of any of these
broad standards does not overrule Roe's critical holding that a state may
not prohibit any woman from malung the ultimate decision to terminate
her pregnancy prior to the potential life's viability.Il6 Finally, it was
decided that the government may regulate or proscribe, but only after via-
bility has been reached."'
The majority then applied this reasoning to the Pennsylvania law.
First, the High Court determined that the state's medical emergency defi-
nition, intended to assure compliance with the abortion regulations, would
not in any way impose a threat to a woman's life or health."' Conse-
quently, it does not violate the essential holdings of Roe. Second, the hus-
band notification provision constitutes an undue burden of the woman's
interest in an abortion and is therefore invalid.l19 The Court was clearly
concerned that a number of women might be prevented from obtaining an
abortion because of this provision. The judiciary was not convinced that
the father's interest in the fetal welfare was equal to the mother's protected
liberty interest.''' Obviously, the state regulation with respect to the fetus
will have a greater impact on the pregnant woman's body than it will on
The Court also found the state's informed consent provision that
required consultation before the procedure was not an undue burden on
the woman's right to terminate a pregnancy.121 It said that requiring the
woman be informed of the availability of information relating to the con-
sequences to the fetus does not interfere with her constitutional right of
privacy and does not override her right to an ab0rti0n.l~~
Despite the controversy surrounding the implementation of Roe, the
Court was firmly convinced that it was in the continuing national interest
to uphold the core values of that opinion. As previously indicated, those
core values are embedded in the "liberty" interest found within the Four-
116. Id. at 879.
118. Id. at 880.
119. Id. at 895.
120. Id. at 881.
121. Id. at 883. On this issue the High Court on February 24, 2003, refused to hear the
appeal of a 7th Circuit decision which held that a requirement that a woman get face to
face counseling at least 18 hours prior to obtaining an abortion was constitutional and did
not unreasonably interfere with her liberty interest in an abortion. A lower court had
found that about ten percent of women who received counseling changed their mind about
getting an abortion. See, A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d
684 (2002), cert. denied, A Woman's Choice-East Side Women's Clinic v. Brizxi, 537 U.S. 1192
Compromising the Uncompromisable
teenth Amendment. The reference to a liberty interest is important but
generally ignored. It indicates that the majority did not rest their decision
solely on the right of privacy, which requires a balancing of interests.
Instead it rested on "liberty" that is specifically mentioned in our constitu-
tion. Liberty interests of the individual are presumed constitutional, and
the burden is on the government. The government bears the burden of
proving the necessity of restricting a liberty interest. This was recognized
by the Casey opinion by the quote, "Neither the Bill of Rights nor the
specific practices of states at the time of the adoption of the Fourteenth
Amendment marks the outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects. See U.S. Const., Amend.
Why is our reliance on a liberty interest wise? Because that appears
to be the way of the Supreme Court. In Lawrence v.
nedy's opinion concerning the conduct of two gay men in their own
home is based on "liberty" not privacy. He begins:
Liberty protects the person from unwarranted governmental
intrusions into a dwelling or other private places. In our tra-
dition the state is not omnipresent in the home. And there
are other spheres of our lives and existence, outside the
home, where the state should not be a dominant presence.
Freedom extends beyond spatial bounds. Liberty presumes
an autonomy of self that includes freedom of thought, belief,
expression, and certain intiinate conduct. The instant case
involves liberty of the person both in its spatial and transcen-
Clearly Justice Kennedy has shifted the burden of proof If liberty is
the issue, the government is compelled to justify any restriction of the
individual's liberty as necessary. If privacy is the issue, the burden is on the
individual to show that the right of privacy being exercised is somehow a
fundamental right. This is not to say that the government may never
restrict liberty. Surely, behavior that is violent to the rights of others may
be prohibited without violating liberty rights. This is why it is so neces-
sary to properly define the status of fetus or unborn child. Is it not reason-
able to suppose that among those other spheres of liberty referred to by
Justice Kennedy is the abortion decision and the liberty interests of the
mother and the fetus? This we attempt.
Having explored the current legal status of the issue of abortion, we
now turn to a compromise for the seemingly uncompromisable conflict
that daily rages between fierce, and often violent, anti-abortion critics of
123. Id. at 848.
124. 539 U.S. 558 (2003).
125. Id. at 562.
14 Appalachian Journal of Law
Roe v. Wade like Operation Rescue and the pro-choice forces of groups
such as Planned Parenthood.
TO THE COMPROMISE
There is a strong analogy between the anti-abortionists active in the
modern era and the abolitioni~tsl~~ who tried to end slavery in the pre-
Civil War1" period. Each attempts (attempted) to safeguard the well-being
and even the very lives of a particularly helpless group of people.
If anything, the present day pro-life forces are in a worse position than
their nineteenth century counterparts. For one thing, the fetus is far more
helpless than was the black slave. The latter could "run away" with the
help of the Underground Railroad and other such institutions. No three-
week old fetus has the maturity to initiate or even remotely cooperate in
any such venture. True, the pro-lifers can try to convince a pregnant
woman not to abort, but in order to save the baby's life they have to con-
vince the potentially evil doer
trast, the organizers of the underground railroad did not have to convince
the masters of anything - not very likely, in any case - but only the slaves, a
far less difficult task.
Another analogy in this regard is that between abortion and the Nazi
holocaust. Both incidents are associated with massive slaughter of
innocents. If the immorality of an act is correlated with the helplessness
and innocence of the victims, then the moral outrage now directed at
Nazis might better be vented in the direction of pro-choicers. For surely
the Jews who were slaughtered, no matter how innocent of any wrong
doing themselves, were at least more responsible for their fate than the
fetuses victimized by ab0rti0n.l~~
This practice attacks the weakest and most defenseless members of
our society. It is one thing to do away with adults, as in the case of the
Jewish Holocaust, the Bosnian "ethnic cleansing," or the mass murder in
Rwanda. The suffering is pitiful, but at least for the most part the victims
not of course the fetus. In con-
126. Afgen, The Abolitionist, http://afgen.com/slavel .html, (last accessed Feb. 16, 2005);
Infoplease, Abolitionists, http://www.infoplease.com/ce6/history/A08O219O.html, (last
updated Feb. 16, 2005).
127. Strictly speaking, a "Civil War" is conducted between two contendmg forces, each
of whom wishes to rule the entire country. A more accurate description of the
conflagration of 1861-1865 would thus be "War between the States." Pejoratives on the
other side of this debate are "War of Northern Aggression" and "First War of Southern
Secession." For intellectual support of the latter two see Thomas DiLorenzo, The Real
Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Un~zecessary War (Random H. &
Hurnnlel 2002); Jeffrey Rogers, Emancipating Slaves, Enslaving Free Men: A History of the
Arnerican Civil War (Open Ct. 1996).
128. Who, by analogy now takes on the position of the slave master, not the slave.
129. This is meant not to "blame the victims" of the holocaust, but to underscore the
even greater blamelessness, or, better, helplessness, of the fetus.