THE BLOG

The Forgotten Holding of Roe v. Wade

11/10/2013 08:47 pm ET | Updated Jan 23, 2014

Most people identify Roe v. Wade with a single landmark judgment. This is the case that extended the constitutional right of privacy to a woman's decision about whether to keep a pregnancy. Indeed, political, judicial, and scholarly debates about Roe have fixated on the source, content, and legitimacy of that individual right to abortion.

Lost in these debates is Roe's altogether distinct holding -- on the other side of the constitutional ledger -- that the state's interest in "potential life" constitutes a valid reason to regulate reproductive conduct. This neglected holding about potential life is surprisingly powerful and complex. It informs a vast range of pressing controversies and in ways that are unclouded, at least directly, by the freighted question of abortion. And its legal implications span the political spectrum.

That "the State may [legitimately] assert" that interest, Roe held, "as long as at least potential life is involved," explains why the government may, as a constitutional matter, restrict stem cell research that destroys human embryos, for example, whether or not those frozen embryos might otherwise be brought to term. That the fetus "represents only the potentiality of life," on the other hand, and accordingly lacks any interests of its own under the Constitution, explains why states may not, as many have tried, accord the legal status of personhood to human life beginning at conception.

The potential-life holding helps to resolve these and many other disputes over embryo contracts, fetal pain, and sex selection, for example, as I show in a forthcoming article. A recent lawsuit exemplifies the enduring significance of Roe's potential-life holding. The case marks the first-ever federal challenge to fetal protection laws that punish women for using drugs during pregnancy.

Alicia Beltran, a Wisconsin woman who's expecting her first child in January, couldn't have expected that showing up for her regular prenatal checkup back in July would lead to her arrest and 78-day detention for substance abuse. She wasn't using any drugs, after all, and her pregnancy was healthy. All she did was refuse to take an anti-addiction drug that the clinic had recommended to treat a dependency to pain pills that (she admitted) she'd once struggled with, but didn't anymore, as tests confirmed.

Ms. Beltran is now seeking a federal injunction to block the enforcement of the 1998 Wisconsin law under which she was detained. That law, like those in several other states including Minnesota, Oklahoma, and South Dakota, authorizes the state to detain and forcibly treat any pregnant woman who "habitually" uses alcohol or controlled substances. Such restrictions are designed, these laws explain, to promote the state's constitutionally approved interest in "potential life."

States like Wisconsin that defend their fetal protective measures in the name of potential life fail to take seriously the Supreme Court's refusal to confer on the fetus its own constitutional interest in being born healthy or even at all. Fetuses lack individual such interests, Roe held, because "the unborn have never been recognized in the law as persons." Only after a fetus is born does its acquire its own interests under the U.S. Constitution. The state's interest in protecting even a fully developed fetus is accordingly weaker, Roe held, than its parens patriae interest in protecting children.

New scientific evidence illuminates why the state's child-welfare and fetal-welfare interests differ not only in time, but in kind. It's easy to suppose that a child's having been exposed to drugs in utero invariably harms him after he is born. But an emerging scientific consensus affirms that the adverse health outcomes suffered by just some drug-exposed newborns are caused less by illicit drugs than by other factors like second-hand smoke and lack of prenatal care. These studies cast the longstanding assumption that prenatal drug exposure harms children as "at best grossly misleading, arising more from bias and prejudice than from the scientific literature."

To the extent that prenatal drug use does harm children, punishing pregnant women who use drugs does a poor job of promoting the delivery of healthy offspring. Fear of detection and reprisal for drug use during pregnancy impairs prenatal welfare by pressuring drug-dependent pregnant women to forego the clinical care essential to preventing miscarriage -- or even to terminate pregnancies they would otherwise keep.

Besides, states can readily improve newborn health in more effective and less restrictive ways than criminal penalties or civil confinement. Most obviously, they should expand access to prenatal care that reduces the incidence of stillbirth, premature delivery, and related health problems. Cases like Ms. Beltran's remind us what Roe made clear forty years ago: that the Constitution affords less solicitude to the welfare of fetuses than of children. That's why states like Wisconsin may not criminalize conduct during pregnancy that so burdens a woman's right to choose to be a mother.

Dov Fox is Assistant Professor of Law at the University of San Diego and most recently the author of Interest Creep.