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).
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