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[Vol. 63:1250 the onset of the second trimester, the health hazards associated with abortion were sufficiently serious to outweigh the risks of continuing the pregnancy to term. Thus, the states' interest in safeguarding the well-being of the woman led the Court to permit state regulation of abortion procedure in ways reasonably related to the protection of maternal health.12 The Court felt that subsequent to the point at which the unborn attain viability13 the states' interest in the protection of "potential life" would become compelling. During this final period of pregnancy, the state could, at its option, prohibit abortion except when necessary to preserve the life or health of the mother.1

B. Structuring the Interests

14

By characterizing the major interests affected by a woman's decision to procure an abortion as those of the woman and the state, the Court was able to avoid the underlying conflict between fundamental personal rights-the clash between a woman's right to privacy and her unborn offspring's right to live—which lies at the heart of the abortion issue. Since the Court characterized the basic conflict as one between an individual's right to privacy in decisions regarding reproduction and a set of state-asserted interests, including a concern for "potential" life, any discussion of the primary nonmaternal15 interests involved-those

12. See Part II infra.

13. Roe, 410 U.S. at 163.

14. "Viability" is defined as the ability of the unborn to survive outside the uterus. This stage of maturity can, under present medical technology, be reached as early as 20 weeks. See TIME, March 31, 1975, at 82 (smallest surviving infant weighed 395 grams). The Court placed viability at 28 weeks, but conceded that it may occur as early as 24 weeks. Roe, 410 U.S. at 160.

15. In any decision concerning abortion, the marshalling of the interests at stake must reflect the potential effects under various results. Rather than characterizing the interests as either maternal or state-which may ignore other interests at least as important as those of the state and encourage a bias in favor of maternal interests-the interests involved are best characterized as either maternal or nonmaternal.

For the woman, pregnancy represents a substantial burden, both mental and physical. Abortion is one means by which to avoid some of these problems. For the unborn, abortion is an ultimate event which terminates existence. The unborn's interest in life clearly does not depend upon the existence of a public policy concerning abortion. For the state, an anti-abortion policy may seek to protect the unborn either because of a belief that those who are incapable of protecting their own interests need the protection of the state, or for more pragmatic reasons (for example, to increase the labor force). Likewise, a pro-abortion policy might be aimed at enabling a woman to end an unwanted pregnancy, or at facilitating a state policy to limit population growth.

There are other nonmaternal interests affected by a decision regarding abortion policy, the clearest of which are the interests of the father. Since Roe, however, the father's rights have been regarded as unpersuasive in comparison to the mother's decision to abort. See, e.g., Coe v. Gerstien, 376 F. Supp. 695 (S.D. Fla. 1974), (three-judge court), appeal dismissed, cert. denied, 417 U.S. 277, aff'd in part sub nom., Poe v. Gerstien, 412 U.S. 279 (1974) (per curiam affirmance of denial of injunction against

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of the unborn-could be avoided by assuming that those interests were somehow less than "real." The device which the Court employed to sidestep a resolution of the more difficult issues presented by the conflict between personal rights was both subtle and deceptively simple. The Court wrote:

Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest [emphasis added], recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone [emphasis by the Court].17

This slight shift in characterization of the interests at stake allowed the Court to eschew any frank discussion of the "difficult question of when life begins"18 and to reject the "rigid" claims argued by both sets of adversaries.19 By resorting to the concept of "potential life"20 to define the existence of the prenatal human organism, and by assuming that an individual's life must be "meaningful" before there is logical

enforcement of the statute) (statute provision requiring consent of father); Doe v. Rampton, 366 F. Supp. 189 (1973) (same); Jones v. Smith, 278 So. 2d 339 (Fla. App. 1973), cert. denied, 415 U.S. 958 (1974) (same).

It should be noted that if one assumes at the outset that the unborn have no interests, one has effectively decided the most difficult question presented by abortion. All that is left is to balance interests which are less than "ultimate" for those involved.

16. By characterizing the unborn as "potential" life the Court assumed at the outset that it was dealing with something less than actual human life. Such a characterization goes a long way toward deciding the ultimate issue; once the unborn are reduced to the status of "potential" life, their destruction is made to seem less serious. Thus, by giving constitutional recognition only to the "less rigid" claim that only potential life exists before birth, the Court implicitly decided the "difficult question of when life begins," which it so eloquently sought to avoid later in the opinion. See Roe, 410 U.S. at 150, 159. In the Court's eyes this potentiality exists until live birth, at which point actual life begins. See Roe, 410 U.S. at 164-65 (in the post-viability stage the state may protect the "potentiality" of life).

17. Roe, 410 U.S. at 150.

18. Id. at 159.

19. The "rigid" claims of the opposing parties are essentially two: one side argues that a woman has an absolute right to procure an abortion at any time; the other side claims that the unborn are living human beings deserving of constitutional protection. The Court rejected both of these claims, opting for a limited right in the first case, and adopting the "less rigid" claim of "potential" life in the second. The second claim, however, was actually the central issue of Roe v. Wade, for if the unborn are living human beings entitled to constitutional protection the claim of a right to abortion fails. Roe, 410 U.S. at 156-57. The Court never discussed just why the "rigid" claim on behalf of the unborn had to be rejected, but it is fair to assume that rejection of the proposition that actual human life was involved made its subsequent decision on the meaning of the word "person" much easier. Indeed, it would have been difficult for the Court to explain just why a living human being is not a "person" within the meaning of the Constitution. 20. See note 16 supra.

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[Vol. 63:1250 justification for protecting it,21 the Court was able to compromise the interests of the unborn by defining away their rights. While the Court felt that no "person" entitled to constitutional protection existed at conception or at any other period prior to live birth,22 the state could assert a compelling interest in protecting the unborn once they reached viability.23 The Court completely omitted any discussion of why the unborn should or should not have rights of their own. The rationale behind this marshalling of interests and the necessity for this approach to the issues were unexplained.

In an attempt to buttress its ultimate conclusion that the unborn can find no protection under the Constitution, the Court attached great weight to its professed inability to find agreement in the community at large as to when life begins. The validity of such a justification, however, is open to serious question. In fact, the answer to "the difficult question of when life begins" is a matter of common understanding. The increasing sophistication of the science of biology has made it impossible to deny that biologically, human life exists before birth.24 In fact, it is only within the context of the abortion controversy that this basic fact is called into question.25 In an editorial frankly discuss

21. Roe, 410 U.S. at 163.

22. Id. at 158.

23. Id. at 163-64.

24. W. WINDLE, PHYSIOLOGY OF THE FETUS 3 (1971):

...

Embryonic development is at one end [of the spectrum of human development], maturation follows and aging comes at the farther end of a continuing growth spectrum in which the only sharply defined boundary is at the beginning. The other boundary is a variable one. It may be a day or a hundred years. Be that as it may, development goes on until the spectrum has been completed or aborted by accident, genocide or disease. Fetal life is normally only a small part of it, birth just an event along the way. See GRAY, ANATOMY OF THE HUMAN BODY 56-57 (C.M. Goss, 25th ed. 1948); C. HERTWIG, TEXTBOOK OF THE EMBRYOLOGY OF MAN AND MAMMALS (E.L. Mark transl. 1905); P. WIESS, PRINCIPLES OF DEVELOPMENT: A TEXTBOOK OF EXPERIMENTAL EMBRYOLOGY 3-9, 14-17 (1939); E. WITSCHI, Development of Vertebrates 7 (1956). See generally L. BARTH, EMBRYOLOGY 1-13 (rev. ed. 1953); Editorial, A New Ethic for Medicine and Society, CALIFORNIA MEDICINE, September, 1970, at 68 (hereinafter cited as CALIFORNIA MEDICINE).

25. The basic difficulty within the abortion controversy is a failure to agree on a definition of the term "human life." Human life can be defined to include all individuals who are biologically human (members of the species Homo sapiens), or it can be defined as a quality attaching when certain societally defined criteria have been fulfilled. It is the latter definition of "human" to which the Court was alluding when it claimed to find disagreement in the community at large, including the medical and scientific communities, as to when "life," meaning "human life," begins. See Roe, 410 U.S. at 159. For purposes of this Comment, however, "life" is equated with biologically human life so that subjective criteria for establishing those qualities which make one "human" in the eyes of society can be avoided. Compare CALIFORNIA MEDICINE, supra note 24, at 68, with the following:

Whenever scientific debate becomes unreasonably strident, and its participants unusually intransigent, one cannot help but suspect that technical matters are

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ing the changing attitudes toward the value to be placed upon individual human lives, California Medicine, the official journal of the California Medical Association, noted that all of the rhetoric surrounding the abortion controversy betrays "a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous, whether intra- or extra-uterine until death.”26

So, by sidestepping discussion of biological fact, the Court was able to recognize that viability, a concept fairly new to the controversy over abortion,27 signaled the period in which the state's interest in potential life would become compelling.28 Yet, even when viability has been reached, protection of the unborn is illusory because state protection of the unborn is not constitutionally compelled and may be set aside when the life or health of the mother is in jeopardy.29 Since, in the Court's opinion, the unborn have no constitutionally cognizable

no longer the real issue. In such circumstances it is not unusual to find that opponents completely understand and accept the contents of each other's arguments. They carry on the debate because they favor opposing policies, not because they disagree about scientific matters. They perceive a policy decision as an implicit consequence of their technical conclusions, and having a personal preference for a particular policy they tend to defend whatever technical conclusion is most conducive to their favored policy. In short, scientific objectivity is abandoned in favor of scientific advocacy.

Blank, The Delaney Clause: Technical Naiveté and Scientific Advocacy in the Formulation of Public Health Policies, 62 Calif. L. Rev. 1084, 1119 (1975).

26. CALIFORNIA MEDICINE, supra note 24, at 68.

Thus, while the trimester approach to resolving the abortion issue appears warranted if the sole question to be decided is the relative safety of “early" (first trimester) as opposed to "late" abortion for the woman involved, it is too artifical to support rigid constitutional rules governing either the existence of fundamental personal rights during the prenatal period or the extent of state police power over the timing and quality of the medical procedures involved in abortion. In purely biological terms, the trimester is a construct having little significance other than as a convenient means by which to estimate the progress of prenatal development. See sources cited note 24 supra.

Since the end result of the abortion cases is to deny all constitutional protection to the unborn, the analytical framework upon which the decisions rest can hardly be characterized as a "balance" between fetal and maternal interests without doing violence to the meaning of the word.

27. Historically, the key points considered in the framing of abortion policy were conception, quickening, and birth. Quickening was chosen by the early common law as an interim point because it represented the first concrete proof that the child was alive. See, e.g., State v. Cooper, 22 N.J.L. 52 (1849). Choosing viability as the relevant point in the protection of the unborn, however, makes the bodily integrity of the fetus dependent not on whether it is alive, but whether it is sufficiently mature to lead a "meaningful" life should it survive the abortion procedures. Roe, 410 U.S. at 163.

28. Id. at 163. It is important to recognize that the Court did not refer to this point as the beginning of the "third trimester," although some courts seem to have taken this approach. See, e.g., Hodgson v. Anderson, 378 F. Supp. 1008, 1016 (D. Minn. 1974). Furthermore, although the point of viability was not strictly limited in the Court's opinion, the lower courts seem to be interpreting the opinion as if it had been limited. See id. at 1016.

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[Vol. 63:1250 interest in the preservation of their own lives, the state's interest in protecting their lives would not be sufficiently compelling to require a balancing of the life interest of the unborn with the interest of its mother.3

30

30. The Court buttressed its argument that the Constitution does not protect the unborn against governmentally sanctioned destruction at the hands of their mothers' physicians with the contention that abortion laws typically contain an exception for the life of the mother. This fact is undisputed. What is disputed, however, is that the exception destroys the rule.

Clearly, the fact that there may be exceptions to any criminal law does not destroy the law's proscriptions. The law relating to self-defense is, perhaps, the best example of the law's recognition that there are situations where the interest of one individual in the preservation of his or her own life is held to negate the criminality of the homicide or battery with which the person is charged. The life exception to the rules against abortion has the same genesis.

The other "inconsistencies between Fourteenth Amendment status and the typical abortion statute" noted by the Court are equally devoid of merit. The Court pointed out that, under Texas law, a woman could not be liable for an abortion performed upon her as a principal or as an accomplice. Roe, 410 U.S. at 151 & nn.49-50. While this may have been true to some degree in Texas, it was certainly not true in all other states. See, e.g., Smith v. State, 33 Me. 51 (1833); In re Vince, 2 N.J. 443, 67 A.2d 141 (1949). Vince was cited by the Court in support of the opposite contention. Roe, 410 U.S. at 151 & n.50.

The Texas rule that a woman could not be considered an accomplice is deserving of independent scrutiny. The rule first found expression in Watson v. State, 9 Tex. Crim. 237 (1880), in which the court addressed itself not to the woman's legal culpability, but to the evidentiary effect of her being considered an accomplice:

The rule that she does not stand legally in the situation of an accomplice, but should rather be regarded as the victim than the perpetrator of the crime, is one which commends itself to our sense of justice and right. . . . But, though not strictly an accomplice inasmuch as she is in a moral point of view implicated in the transaction, it would be proper for the jury to consider that circumstance in its bearing on her credibility.

Id. at 244-45 (emphasis added). Thus, even in Texas, a woman was considered to be "implicated" in the abortion, a crime which was defined in terms of its effect upon the fetus, not the mother. See, e.g., Moore v. State, 37 Tex. Crim. 552, 567-72, 40 S.W. 287, 290 (1897). The major case upon which the Texas court in Watson relied was Rex. v. Hargrave, 5 Carr. & Payne 170, 24 Eng. Com. L. Rep. 509, 510 (1838):

Although all persons present at and sanctioning a prize fight, where one of the combatants is killed are guilty of manslaughter, as principals in the second degree; yet they are not such accomplices as require their evidence to be confirmed, if they are called as witnesses against other parties charged with the manslaughter.

Since the Texas rule was based upon evidentiary rather than substantive considerations, it was not essentially different than the rule in those jurisdictions which did not prosecute the woman who procured an abortion. The rule proscribing prosecution was equally based upon evidentiary considerations: the courts needed the woman's testimony to bring the abortionist before the bar. In re Vince, supra at 451, 67 A.2d at 145.

The final "inconsistency" raised by the Court in support of the contention that abortion laws were intended solely to protect the woman was the differentiation of penalties between abortion and murder. Since criminal liability is solely a creature of statute, one must assume that the perceptions of the legislators who framed the penalty provisions governed the scope of the laws. The crime of abortion is one which has always involved unique evidentiary and circumstantial problems, a fact which explains why the penalties affixed were differentiated from those of murder. See, e.g., ch. 4 § 119 [1898]