“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” (HLR, Vol 87: 1, p 7 – Laurence Tribe)
Roe enshrined bodily privacy in constitutional theory -- seemingly no one takes exception to that today. Roe went on to proclaim it takes a "compelling state interest" for a law to override fundamental privacy.
Then Roe fudged.
“One reads this passage several times before becoming convinced that nothing has been inadvertently omitted.”
‘ … the compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation … after viability thus has both logical and biological justifications.’
“Truly, this mistakes a 'definition for a syllogism' and offers no reason at all for what the Court has held." (Ibid. p 4 -- quoting John Hart Ely, YLJ 1973 April; 82: p 924)
The Roe majority took upon itself what would correctly be be seen as a legislative job -- matching the compelling interest standard to the stages of prenatal development -- as opposed to interpreting words of law. There being no consensus on the worth or rights of fetuses "deeply rooted in this Nation’s history and tradition" -- the Roe majority found itself out in substantive-sorting land all by its lonesome.
But instead of coming back with a substantive delineation of prenatal life (v. privacy) -- Roe served up a fiat trimester policy that gave prochoice nearly everything it wanted.
Roe disguised its baked-in substantive holdings on fetuses by not articulating any one in any part.
What will any future Supreme Court be able to say once medical technology enables extracting a fetus temporarily from the womb and then returning it to complete its gestation -- when the cosmic question is legal personhood in the womb?
Coming soon?!
