Membership Has its Privileges?: Life, Personhood, and Potential in Discussions about Reproductive Choice

Abstract

In 1973 the Supreme Court of the United States established that women have a constitutionally protected right to choose whether to terminate their pregnancies. The right, however, is not absolute. It must be weighed against competing State interests. As the title of Dov Fox’s excellent essay points out, one of the primary competing interests asserted in Roe was The State’s Interest in Potential Life. But the Roe Court determined that this interest in potential life alone was insufficient to justify regulation of the procedure pre-viability. Then, 17 years later, the Court stated in Casey that Roe’s framework “undervalue[d] the State’s interest in potential life,” and instead of just discussing potential life, the Court also referenced the State’s “legitimate interest from the outset of pregnancy in protecting…the life of the fetus that may become a child.”