61 Pages Posted: 4 Jan 2015 Last revised: 30 Jan 2017

Date Written: March 15, 2015

Abstract

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within minutes. In the not-so-distant future, however, new artificial-womb technologies may make this question an urgent one by enabling pre-viable aborted fetuses to survive to full term if a fetus-sparing abortion method is used. Moreover, whether a woman has the right to ensure the death of her fetus may already have important implications for state laws that regulate the destruction or indefinite non-gestation of cryopreserved embryos.

The subject, therefore, is well worth exploring, both as a matter of constitutional principle and for its present and possible future legal ramifications. To do so, this Article analyzes hypothetical state legislation enacted in the wake of two technological breakthroughs that may occur in the coming decades: (1) improved surgical techniques that enable fetuses to be removed alive from their mothers’ wombs at any stage of gestation; and (2) artificial wombs in which these fetuses can be gestated to term. The Article assumes that these dual technologies (which I refer to as “AW”) will be safe for women, not prohibitively expensive, and reasonably effective: many pre-viable fetuses would survive fetus-sparing abortions and successfully be gestated to full term in an artificial womb. The Article then supposes that a state enacts legislation prohibiting fetus-killing abortion methods and providing AW at state expense to any woman who chooses to terminate her pregnancy.

Would such a “fetal-rescue program” be constitutional under the Supreme Court’s controlling decision in Planned Parenthood v. Casey? Although the Article ultimately concludes that fetal-rescue programs are constitutional, the basis for that conclusion is not a categorical rule that the woman has no constitutionally protected liberty interest in ensuring the death of the pre-viable fetus. On the contrary, Part I argues that, under Casey, her liberty interest is “specially protected,” meaning that state-imposed burdens on that interest are subject to more than rational-basis scrutiny. Part II then explains why the appropriate form of heightened scrutiny is the interest-balancing methodology Casey employed in re-establishing the right to elective abortion, rather than the “undue burden” test Casey adopted for state laws that interfere with a woman’s ability to obtain an abortion. Consequently, the constitutionality of fetal-rescue programs turns on whether the state’s interest in protecting the pre-viable fetus outweighs the woman’s protected liberty interest in ensuring its death.

Part III pursues that question by evaluating the woman’s interest in ensuring the death of the fetus and the state’s interest in protecting pre-viable fetal life, analyzing Casey’s implications for the relative strength of those interests, and presenting several arguments bearing on which interest is stronger as a matter of “reasoned judgment.” It concludes that the state’s interest in rescuing the pre-viable fetus via AW outweighs the woman’s interest in ensuring that the fetus does not survive the termination of her pregnancy. In light of that conclusion, Part IV turns to state regulation of cryopreserved embryos. It argues that cryopreserved embryos created using current practices qualify as “postconception potential life” that falls within the ambit of the state’s interest in protecting (and enabling the development of) pre-viable fetal life. Moreover, the woman’s interest in destroying her cryopreserved embryos (or indefinitely preventing their development) is – at most – no stronger than her interest in ensuring the death of her pre-viable fetus. Accordingly, a state may constitutionally prohibit the destruction of cryopreserved embryos and require that they be transferred to the state for adoptive gestation if not used within a reasonable time.