HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, November 30, 2021

Rescuing Roe

Gary J. Simson (Cornell University), Rosalind Simson (Mercer University), Rescuing Roe, 24 N.Y.U. J. Legis. & Pub. Pol’y (forthcoming 2022):

The fate of Roe v. Wade is clearly hanging in the balance. The Dobbs case that the Supreme Court is deciding this Term squarely raises the question of whether Roe should be overruled, and five, if not six, of the Justices appear to be inclined to vote to overrule it.

Can Roe be saved? We believe it can, but only if the Court can be persuaded to recognize that the two propositions that lie at the heart of Roe – that a woman’s right to decide whether to have an abortion is constitutionally fundamental, and that the government’s interest in protecting potential life does not become compelling until the point of fetal viability – rest on a much firmer foundation than the one provided in Roe and later cases. 

We offer a defense of both propositions that we believe has the capacity to sway those members of the Court who are skeptical of Roe but open to persuasion to stand by it. Our defense has that potential not only because of its novelty and cogency but also because the Court could adopt it without repudiating established doctrines that play a significant role in areas of the law beyond reproductive rights. 

In large part the novelty of our defense stems from the use to which it puts a nonlegal source – an article that philosopher Judith Thomson wrote shortly before Roe. We demonstrate that Thomson’s moral argument for a right to abortion has enormous unappreciated force for the current legal debate about abortion. 

In “A Defense of Abortion,” Thomson proposed conceptualizing abortion, not as killing the unborn, but rather as refusing to continue providing the life-sustaining services essential for the fetus’s health and growth. She then maintained that even assuming the fetus at every stage in pregnancy has the same right to life as any person, it does not follow that pregnant women are always, or even usually, morally obligated to sustain the fetus’s life. The human right to life, she contended, does not include a right to whatever services one needs for continued life. 

We begin by discussing Dobbs, the increasing number of laws at least as restrictive of abortion rights as the Mississippi law in Dobbs, and the incompatibility of those laws with the two key propositions in Roe. Next, we draw on Thomson’s argument to explain why the decision whether to have an abortion comes within the fundamental right to privacy. In response to those who have challenged the fundamentality of the abortion right by questioning the fundamentality of the broader privacy right, we offer a distinctive defense of the fundamentality of the privacy right. 

We then make use of Thomson’s moral argument to establish that, prior to the point of fetal viability, the government’s interest in protecting potential life is not sufficiently weighty to qualify as “compelling.” We conclude by underlining the importance of our analysis not only for the Court but also for state supreme courts as they interpret state constitutional provisions fairly understood as independent guarantees of the abortion rights recognized in Roe.

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