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Tennessee Law Review

Document Type

Article

Abstract

While legal scholars and Supreme Court Justices on both sides of the national abortion controversy argue that Roe v. Wade was incorrectly decided, this Article accepts the Court's decision as a provisional holding that was based on the relevant societal, scientific, and legal records available to the Court in 1973. However, the stare decisis analysis outlined by the Court in Planned Parenthood v. Casey dictates that precedent can be overturned when a change in relevant facts robs a ruling of its original justification. If the Court agrees to hear a challenge to Roe, it will likely assess whether the relevant factual records relied upon by the Court in Roe are still responsive to present realities.

In 1973, the Court in Roe held that a state's interest in protecting life becomes compelling at fetal viability and fetuses do not have constitutional rights. The Court made these determinations because it could not find a consensus view on when life begins and it found that states were reluctant to recognize fetuses as legal persons outside of the abortion context. Today, the Court can take notice of recent scientific and legal developments: (1) an academic study found a consensus of biologists around the world (96%) agree with the biological fact that a human's life begins at fertilization and (2) there are now eight legal contexts in which fetuses are protected as human persons under the law; today, thirty-eight states have fetal homicide laws that recognize non-abortive killings of fetuses as homicides or murders of human persons.

If the Court considers these developments, which establish fetuses as humans in fact and persons under the law, then it would likely hold that Casey's stare decisis standard for reexamining precedent has been satisfied and Roe's viability standard has been robbed of its original justification. Because U.S. senators and Supreme Court Justices have held that all humans are persons within the meaning of the Fourteenth Amendment to the Constitution, these developments could also lead the Court to recognize that all humans have the constitutional right to equal protection under the law throughout their lives, from fertilization until death. Whether the Court overturns Roe and returns the abortion issue to the states, recognizes fetal rights, or uses a new justification to retain or expand abortion rights, this Article argues that the Court cannot allow our Nation to be governed by abortion jurisprudence that rests on outdated and incorrect factual records of the science of fetal development and the legal status of preborn humans.

Publication Date

2020

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