The State's Interest in Potential Life

Abstract

Most people identify Roe v. Wade with a single landmark judgment. It extended the constitutional right of individual privacy to a woman’s decision about whether to terminate a pregnancy. Indeed, political, judicial, and scholarly debates about the case have focused on the origin, content, and balancing of that substantive due process right to abortion.Largely missing from these debates is Roe’s distinct holding, on the other side of the constitutional ledger, that the government has a valid reason to regulate reproductive conduct in the name of “potential life.” Despite decades of intensive litigation and academic commentary on the metes and bounds of reproductive privacy, scholars have paid little attention to the state’s interest in potential life that it is routinely found to implicate.