How to swing Justice Anthony Kennedy – on Roe v. Wade

The latest strategies to overturn Roe v. Wade turn on Roe’s missing explanation for why the life of the fetus is not compelling enough to override Roe’s fundamental privacy. The most quoted, most honest liberal commentators have been saying the same for years.

Harvard's Lawrence tribe wrote in his 1973 law review: "One of the most curious things about Roe is that behind its own verbal smokescreen the substantial judgment on which it rests [any substantive valuation of fetal life] is nowhere to be found."  (HLR, Vol. 87:1, p. 7 – Roe offered “no reason at all” why viability should make fetal life compelling either; ibid. p 4)

A negative claim that the Roe court never explained itself has gotten no where with wobbling–on-the-edge justices for 40 years. An undeniable claim that prolife legislation meets Roe’s core test of legitimate abortion prohibitions should be undeniable – at least to Roe’s less than fully committed high court supporters.

Roe constrained legislatures with a test that is supposed to constrain only judges. The judiciary may not legitimately balance rights versus substantive interests using their personal, controversial judgments of the weight of the opposing interests. Roe ruled that where abortion law is concerned that legislatures are constrained exactly the same way – I will call this a “consensus test."

The Roe Court itself could have legitimately adopted the most reasonable and broadly available consensus available on when life begins – I will call this the "medical consensus" – we will get back to that.

Roe’s core decision was: "In view of all this we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake."

" In view of all this …"
The whole history of abortion practices dating to antiquity;
reasons, ancient and modern, for prohibiting abortion;
the discovery of a fundamental constitutional right to bodily privacy;
places in the Constitution where the word "person" does not include the preborn;
precedents leaning away from abortion rights, precedents leaning toward;
Roe’s not very current list of theories of when life may begin – with which we will concern ourselves – but which being mostly theological need no comment:
conception,
mediate animation,
quickening,
viability,
birth.

Roe’s signers would have us believe they (and legislatures) could not tell when life had begun even by four weeks overdue – but would have no trouble at 12 weeks early arrival. Time to apply science – medical science.

That's all -- almost.

A couple of other things. One week under a fixed medical consensus line will be 95% the same baby – an undeniably compelling state interest – goodbye consensus test. Last of all: when medical science makes possible removing fetuses temporarily for care and returning those legal persons to the womb to complete gestation, will the courts allow one class of fetuses slave and the other free?