Vernellia R. Randall and Tshaka C. Randall, Built-in Obsolescence: The Coming End to the Abortion Debate, 4 Journal of Health & Biomedical Law 291-310 (2008) (84 footnotes) (Full Document)

Opponents of unfettered access to abortion argue that the fetus enjoys, from the moment of its conception, the same inalienable right to life that any other human enjoys. Advocates of unfettered access to abortion argue that the right to an abortion is protected by the Constitution and based on a woman's right to privacy. This argument has played out repeatedly in the courts since Roe v. Wade and was repeated most recently when the Supreme Court considered a state ban on partial birth abortions. Amazingly, advocates on both sides have missed the true significance of partial birth abortion; that is, partial-birth abortion is an example of the built-in obsolescence of the controversy over abortion, and foreshadows the end of the abortion debate. Both sides of the debate have all but ignored the impact of changing medical technology on the debate as it is currently framed, and, by extension, on reproductive rights.

The current legal and political dispute is grounded in the misconception that the decision to have an abortion is one decision, a decision to terminate a fetus. In fact, in choosing an abortion, a woman is actually making two distinct choices: first, she is choosing to terminate her pregnancy, that is, remove the fetus from her body; and, second, she is choosing to terminate the fetus. Currently, a woman's decision to remove the fetus from her body (the autonomy decision) is necessarily a medical decision to terminate the fetus (the reproductive decision). The current argument in favor of legalized abortion assumes that the woman's autonomy interest is inseparable from the reproductive decision. However, as Laurence Tribe noted in 1973:

Once the fetus can be severed from the [womb] by a process which enables it to survive, leaving the abortion decision to private choice would confer not only a right to remove an unwanted fetus from one's body but also an entirely separate right to ensure its death. Currently, the first decision inevitably leads to the second, however, changing medical technology ensures that this will not always be the case. Over time, medicine will develop to the point where the decisions can be made separately with a live birth of a fetus creating no more risk to the woman than an ordinary abortion. Under those circumstances, the Supreme Court's current abortion jurisprudence offers no legal reason for a woman's interests to be given primacy in the reproductive choice. . For more than thirty years, one side of the abortion debate has argued about a right to life while the other side has argued about right to autonomy. Changing medical technology will allow the law to satisfy both sides. In the future, the law will be able to allow a woman to choose not to carry to term while making it illegal to terminate the life of a fetus.

Legal Framework of the Abortion Debate

In the nineteen sixties, Texas law criminalized all abortions except those undertaken on medical advice for the purpose of saving the mother's life. In the early part of 1970 a single pregnant woman, who at the time wished to remain anonymous, challenged the constitutionality of the Texas criminal laws. A three judge District Court panel declared the Texas laws violated the woman's Ninth and Fourteenth Amendment rights. The Supreme Court, in 1973, affirmed, in relevant part, the District Court's ruling. The Supreme Court's decision in Roe v. Wade had three central parts. The Court affirmed: (1) a woman's right to choose an abortion without undue influence from the state in the first two trimesters; (2) the state's power to restrict abortions in the third trimester; and, (3) the state's interest in the woman's health and the potential life of the fetus. The Court's decision was grounded in a right to privacy implicit in the Constitution. Roe was not the final word on abortion, and since that decision the Court has been asked to address the issue on several occasions. Shortly after Roe, the Court reaffirmed and refined its decision.

In Planned Parenthood of Central Missouri v. Danforth, the Supreme Court struck down a spousal notification provision that required a woman seeking an abortion to notify her spouse before an abortion could be performed in the first twelve weeks of a pregnancy. In its holding, the Court reasoned that a state could not delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy. Since the state could not regulate or proscribe abortion during the first stage, it could not delegate authority to any particular person to prevent abortion during that same period. Danforth is as informative for what it does not say, as for what it does. The Court's analysis in Danforth focused on a question of timing as much as anything else. The Danforth decision struck down a state law that regulated abortion pre-viability, and did so because the state had no authority to regulate abortion during that period. Implicit in Danforth is the understanding that the state may delegate its authority post-viability and may consider the father's reproductive interests.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court again reaffirmed its decisions in Roe and Danforth. The Court additionally refined its jurisprudence regarding abortion. In Roe and Danforth, the Court discussed fetal viability without clearly defining it, instead discussing a trimester framework that relied on what was the then state of medicine which acknowledged that a fetus was viable after two trimesters of gestation. The Court departed from that definition, defining viability generally as, that time when the fetus was potentially able to live outside the womb, albeit with artificial aid. By defining viability in this way, Casey allows for the use of technology in radically shrinking pre-viability.

The Court's jurisprudence on abortion makes at least one concept clear, that while a woman's interest in terminating an unwanted pregnancy is given primacy pre-viability, the state's interest is paramount post-viability. This concept was never clearer than in the Court's 2007 ruling in Gonzales v. Carhart. In Carhart, the Court upheld a state's ban on a late-term abortion procedure, reiterating the pre- and post-viability distinction. This distinction raises serious concerns regarding the future of reproductive rights.

The Impact of Medical Technology

Each day brings medical advances that blur the bright line third trimester rule of Roe v. Wade and turns back the viability clock established in Planned Parenthood v. Casey. To start, there is a significant difference in the survival rate of premature infants now compared to the early nineteen seventies when Roe was decided. At the time of Roe v Wade, fetuses/infants born before twenty-four weeks had very little chance of survival. By 1989, the age at which a fetus could be expected to have a reasonable chance of survival had moved below twenty-four weeks. Today, over fifty percent of those infants survive, although some with seriously compromised health.

Medical technology has always had a significant impact on the survival rates of preterm infants. For instance, the development of antibiotics and blood transfusions, advances in the prenatal and neonatal technology, increased understanding of the physiology and pathology of the newborns, and the development of the subspecialty in pediatrics of neonatologist significantly increased the survival rates of preterm infants. Perhaps the most significant development in the survival of preterm infants has been the medical specialty neonatologist and neonatal intensive care unit. Neonatal intensive care units developed in the nineteen fifties and nineteen sixties provide specialized care of ill or premature infants. They provide better temperature support, isolation from infection risk, specialized feeding, respiratory support and access to specialized physicians, equipment and resources. Over the next ten to twenty years, premature infants will survive at increasingly younger development and at an increasingly higher rate.

In addition, during the next twenty years it is predicted that an artificial womb capable of sustaining a fetus to term will become reality. There are many potential uses for an artificial womb including providing a drug/alcohol free environment during gestation; turning multiple pregnancies from fertility treatment to a single pregnancy; as an alternative to human surrogacy and, of course, as an alternative to fetal termination.

Professor Hung-Ching Liu, the director of the Reproductive Endocrine Laboratory at Cornell University's Center for Reproductive Medicine and Infertility in Manhattan, has already developed an artificial womb and brought rodents to term in the artificial womb. This is significant because rodents' reproductive processes are very similar to those of humans. Similarly, Dr. Yoshinori Kuwabara, a Japanese Professor of Obstetrics at Juntendo University, delivered goats from an artificial womb after just three weeks of gestation. In fact, researchers believe that they will have a functional artificial womb for humans in ten to twenty years. Scientists are now developing the artificial womb for use in cases where the woman is ill and can no longer carry the fetus, or where the fetus is ill and needs to be removed from the woman's womb and cared for where it can be easily monitored. While the development of the artificial womb has focused on the health of mother and child, there is no reason an artificial womb could not be used to bring a child to term in cases where a woman wants to terminate her pregnancy and the father (or the state) wants the infant born alive. Artificial wombs may make it possible that viability will occur near the moment of conception. If a safe transfer technique is developed then even an embryo [could] gestate to full term outside the mother's womb and inside a separate and discrete man-made womb. Finally, an artificial womb might not be required if scientists can develop a technique for transplanting a fetus from a birth mother to a surrogate.

Regardless of the final form it will take, developing neonatal technology including artificial wombs makes it inevitable that the fetal termination decision will be separated from the fetal extraction decision; late-term abortion is an example of this coming dilemma.

Late-Term Abortions as a Current Example

The debate over late-term abortions provides a current context demonstrating the coming dilemma. Late-term abortions are generally defined as abortions that occur at a state of fetal development that would give the fetus a high probability of survival if born alive. Using that definition, late-term abortions exclude all first-trimester abortions; include all third-trimester abortions; and include some second-trimester abortions and exclude others. Late-term abortions are seen as necessary when fetuses are discovered to have congenital defects or to save the life of the mother. Only a fraction of late-term abortions performed, however, are done for fetal anomalies or to save the life of the mother; many are done for non-medical, elective reasons. Of the estimated 30,000 late-term abortions performed each year, as many as eighty percent of these may be elective, that is, the vast majority of these late-term abortions are performed in the twenty-plus week range on healthy fetuses and physically healthy mothers. Even where the pregnancy poses a threat to the woman's life at gestational stages when late-term abortions are typically performed, immediate delivery of the fetus with vigorous supportive care would result in survival of many fetuses.

Whatever the reasons that prompt them, late-term abortions are intended to ensure that an unwanted fetus/infant is not born alive. Because of the size of the fetus, more common abortion techniques such as suction curettage are unsuitable in late-term procedures. More common late-term procedures include amino infusion and dilation and extraction. However, some of these procedures have resulted in some undesired live births or serious complications. All late-term methods have the following in common: they require that a doctor induce labor to dilate the cervix, and terminate the fetus before delivery. Another procedure, Dilation and Extraction (D&X) or partial-birth abortion was specifically developed in response to the live birth problem. D&X involves inducing labor, rotating the fetus so that the feet and legs delivers first and causing the death of the fetus before its head can be born. Thus, because labor is induced and the fetus is born, a D&X or partial-birth abortion involves no more physical risk to the woman than if she decided to have the fetus born alive. This technique is used when the fetus/infant is too large for an abortion by dilation and evacuation and to assure that there is not a failed abortion and the fetus/infant is born alive.

In Gonzalez v. Carhart, the Court focused on which procedure a state might legally ban, however, in line with the Court's previous rulings, a state might legally ban all late-term abortions that resulted in a dead fetus. The American College of Obstetricians & Gynecologists (ACOG) found no circumstances where D&X would be the only option to save the life or preserve the health of the woman. Because labor is induced and the fetus/infant is born, a D&X or partial-birth abortion involves no more physical risk to the woman than if she decided to have the fetus/infant born alive. There is, of course, some danger to the fetus/infant of a pre-term delivery. At less than twenty-four weeks, fetal/infant survival is about thirty percent, between twenty-four and twenty-six weeks gestation fetal/infant survival is between fifty and seventy-five percent.

The problem with the intact D&E/partial-birth abortion debate specifically, and the abortion debate in general, is that it is based on the false presumption that the full authority on whether to reproduce is housed solely in the woman. Thus, partial-birth abortion allows the woman to make both the decision to remove the fetus/infant from her body and the decision to kill the fetus/infant. While commentators argue that intact D&X/partial-birth abortion are the lesser of several evils because they are substantially safer for the mother than the other leading methods of late-term abortion, they make no assertion about the comparative safety between intact D&X/partial-birth abortion and giving birth to a live fetus/infant. In fact, they cannot make that assertion; intact D&E/partial-birth abortion carries inherent health risks more significant than childbirth. In Gonzales v. Carhart, the state law banned a particular procedure, when the state might have just as easily, and more successfully, chosen to ban all post-viability procedures that result in a terminated fetus.

The Future of Reproductive Rights

There are more interests at stake in the abortion decision than those of the pregnant woman. The government has a legitimate interest in protecting both the unborn child and the health of the mother, and the father of the child has a personal interest in the pregnant woman's decision. Thus, unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender. Instead, it is a legal right as to which the law can properly assign different interests to various parties.

Over the last thirty years, the abortion debate has focused on the tension between a woman's right to choose an abortion without undue interference from the state and the state's interest in the life of the fetus and the health of the mother, however, the reproductive decision, in truth, involves three parties with sometimes competing interests: the woman's interest, the man's interest and the state's interest. A woman's right to abortion has been anchored in her right to privacy and her interests in individual autonomy. Specifically, a woman has the right to control what happens to her body (autonomy) which leads to the right to decide whether or not to reproduce. That is, under the current law, once pregnant, a woman can decide to terminate the fetus or give birth.

Theoretically, a man's interests in the abortion decision are similar to the woman's-a right to privacy, autonomy and reproductive rights. Because men have no autonomy interest in the abortion decision, their reproductive interest has been limited because of the primacy given to the woman's autonomy interest. Even though a man may not want to reproduce he cannot force a woman to have an abortion; by the same token, a man who wants to reproduce cannot stop a woman from having an abortion.

The state has an interest in protecting potential life throughout the pregnancy. However, the current balancing of the state's interest versus the woman's interest is centered on viability. The state has little ability to protect the life of fetus if it is not viable. Essentially, pre-viability, the woman's interest in autonomy and right to control her body trumps the state interest in the potential life of the fetus. However, once the fetus is viable, the state can protect the potential life by outlawing abortion in all cases except for when the health of the woman is at stake. As has been discussed, changing medical technology will have a significant impact on how the courts view the primacy of the state and the woman's interest. In addition, the same changes in technology will impact the balance between the woman and the man's interests.

Currently, the constitutional basis for the right to choose an abortion is grounded in the woman's autonomy interest, an interest that does not necessarily implicate reproductive rights. As Tribe observed, the abortion decision involves two separate medical decisions: the decision to remove the fetus from the woman's body (Fetal Extraction) and the decision to kill the fetus (Fetal Termination). While, historically, and currently during most stages of pregnancy, the first decision inevitably leads to the second, changing medical technology ensures that this will not always be the case. Over time, medicine will develop to the point where, the decisions can be made separately with a live birth of a fetus creating no more risk to the woman than an ordinary abortion. Under those circumstances, there is no legal reason that a woman's interests should be given primacy in the reproductive choice. Taking into consideration the changing technology, the reproductive interest could be balanced as a private decision between a man and woman based on their potential responses to the pregnancy. It is also possible that the state's interest in the potential life of the fetus might be exercised in a way that makes all abortions illegal and provides recognition of men's reproductive interest.

Up until this point, a woman's reproductive interest has consistently prevailed over the man's, not because the law gave greater protection to the woman's reproductive interest, but because the woman's autonomy interest gave her decisions regarding reproduction primacy. In fact, it is a fair statement to assert that courts and legislatures have generally not recognized any reproductive interest of men and only indirectly recognized the reproductive interest of women In the future, the courts and legislatures will have to address directly reproductive rights. Whose reproductive interest will prevail may depend on whether there is reproductive conflict and whether there are viability concerns. Where there is reproductive conflict, the legislatures will most likely give priority to the person who wants life, however, that priority for the man will only occur if the conflict arises post-viability.

If both the woman and man want to reproduce (or do not care), there is no reproductive conflict. In this situation there are no viability concerns and no reason for the state to assert its interest, thus both parties' reproductive interest prevails and the result will be pregnancy and live birth. If the woman wants to reproduce and the man does not, there is a reproductive conflict, and because the woman wants life there are no viability concerns. Thus, the woman's reproductive interest prevails and the result will be pregnancy and live birth. If the woman does not want to reproduce and the man wants to reproduce, there is reproductive conflict and there are viability concerns. In this situation, a man's reproductive interest will prevail, but only if the decision is post-viability. If the decision is post-viability, then the man's reproductive interest prevails, and there will be fetal extraction and not fetal termination, however, if the decision is made pre-viability, then the woman's reproductive interest prevails, and fetal termination will occur. If both the woman and man do not want to reproduce (or do not care), there is no reproductive conflict. In this situation, there are no viability concerns, thus both parties reproductive interest might prevail and the result would be fetal termination. However, it is possible that some states will exercise their interest in life and ban all fetal terminations. In this case a woman would be able to exercise her autonomy interest by having fetal extraction, but would not be allowed to choose fetal termination. In such a case, neither party's reproductive interest prevails. See Figure 1.

Figure 1

Regardless of the approach adopted by states, there will be collateral consequences which will need to be addressed in subsequent research. In this section, it is only our intention to point out some of the potential consequences. If changing medical technology results in the recognition of men's reproductive interest this would essentially be an equalization of reproductive rights and responsibilities. This equalization of gender rights does not necessarily mean this change would be entirely equitable in result.

The social impact of being able to extract the fetus from the woman's uterus will be significant. Both states and fathers could exercise their interest in having a live fetus. States could require all women to have fetal extraction. This would place a significant financial and emotional burden on men and women who do not want children. Men who did not want to reproduce have always borne this burden when a woman decided to carry the fetus to term, however, the number of men who will be required to reproduce will increase substantially. For women, the burden of having a child they did not want is one that many women have not had to bear since the legalization of abortion. If a state was to choose to require fetal extraction in all feasible cases, it could have a disproportionately negative impact on poor women and women of color. Poor women may be forced to have children they cannot afford. While this is no different from the situation for poor men, poor women are not in the same place as poor men. Women earn less and where children are involved, women are more likely to be the primary caregiver. As a result of women's financial status the new reproductive reality may cause more illegal terminations, however, it may also increase interest in pregnancy prevention and early stage abortion before fetal extraction is a viable alternative, and advances in technology could eventually make extraction a viable alternative even for embryos.

If extraction is required by the state and neither the woman nor the man wants to exercise their reproductive rights, we may see the establishment of fetal adoptions. If the extracted fetuses are placed for fetal adoption there will be an increase in the already high number of unadoptable minority and disabled babies, particularly black babies. This may result in a significant portion of a generation being raised as wards of the state.

Finally, even though men and women may relinquish their parental rights to the state, because of the significant financial burden on the state resulting from such a decision, states may take physical custody of the extracted baby but require both parents to continue to provide financial support; again, placing an inequitable burden on those least able to afford it. Thus, while abortion as we understand it might be radically altered because of the new reproductive rights reality, gender, class and race issues will persist and in many instances may worsen.

Conclusion

Technology is changing in ways that will have a significant impact on the current abortion debate, and our understanding of reproductive rights. There are three potential state responses to this changing medical technology. First, states may outlaw abortion and force women to use an artificial womb and/or fetal adoption. Under Roe v. Wade states can restrict access to abortion in the third trimester and many states already outlaw abortion post-viability. Furthermore, many states have implemented unconstitutional and unenforceable bans which changing medical technology might make acceptable. However, some states may continue to see the abortion decision as a private decision giving the father more rights and the mother more responsibilities under the equal protection clause. Finally, a state could decide that the fetus is an extension of the woman's body and that anything done to the fetus must be done with the mother's consent to protect her privacy.

None of these options require the Supreme Court to overturn Roe v. Wade and subsequent rulings. The Supreme Court's current abortion jurisprudence stands for the proposition that the woman's autonomy interest outweighs the state's interest in life until viability; after viability the state may exercise its interest so long as the health and welfare of the mother are provided for in any laws enacted. At the time Roe was decided, viability was the third trimester: twenty-four weeks. Over the next twenty years, viability will move back earlier and earlier in the pregnancy, until, conceivably, an embryo will be viable at conception. With changing medical technology, the state's interest in potential life could take precedence over the woman's reproductive interest. The woman's reproductive interest would still exist, but the state could limit her right to exercise it by choosing a procedure that would not result in fetal termination if a living fetal extraction is available. Further, the father's reproductive interest, which has received little support under the current law, would have to become part of any abortion discussion.

In offering this analysis, we are not taking a position on either pro-choice or right to life. It is clear that our prediction could have serious negative impact on women. The current abortion paradigm gives women power in a society where they have little. Further, the personal consequences of having a child exist in the world being raised by another may be different for women than for men. Even after decades of progress, we are still conditioned to believe that a woman's place is in the home, and that there is a special bond between mother and child. While the law may be shaped to allow men and women equal parts in any reproductive decision, those decisions may not have equal consequences. Giving women this choice-both reproductive and autonomy- is one of the few places in our society where women actually have more power than men, in a profound way. If changing medical technology takes that away, the other pulls society gives men may end up leading women to coercive choices. This is true not only in the United States, but around the world as other women look to our system as a model for empowerment. We are not suggesting this argument as a reason to continue to give the woman's decision primacy over the man's when the woman does not want to reproduce but the man does. However, notwithstanding this, changing medical technology will require a reassessment of the respective rights and responsibilities. One side of the abortion debate argues that the Constitution protects a woman's right to choose an abortion; the other side argues that the fetus has a right to life that the law must recognize. New medical technology will allow the law to satisfy both. In the future, the law will be able to allow a woman to choose not to carry to term while making it illegal to terminate the life of a fetus.

1. Professor of Law, University of Dayton; BSN University of Texas, Austin, TX (1972); MSN University of Washington, Seattle, WA (1978); JD Northwestern School of Law Lewis and Clark College, Portland, OR (1987).

2. Assistant Professor of Law, Florida A&M University; BS University of Dayton, Dayton, OH (1994); MA University of Michigan, Ann Arbor, MI (1996); JD University of Pennsylvania School of Law, Philadelphia, PA (2002).