Dov Fox on Roe v. Wade

In a new piece at the Huffington Post, Bill of Health Contributor Dov Fox explores “The Forgotten Holding of Roe v. Wade — that states have a valid reason to regulate reproductive conduct because of an interest in “potential life.”

That “the State may [legitimately] assert” that interest, Roe held, “as long as at leastpotential life is involved,” explains why the government may, as a constitutional matter, restrict stem cell research that destroys human embryos, for example, whether or not those frozen embryos might otherwise be brought to term. That the fetus “represents only thepotentiality of life,” on the other hand, and accordingly lacks any interests of its own under the Constitution, explains why states may not, as many have tried, accord the legal status of personhood to human life beginning at conception.

The potential-life holding helps to resolve these and many other disputes over embryo contracts, fetal pain, and sex selection, for example, as I show in a forthcoming article. Arecent lawsuit exemplifies the enduring significance of Roe‘s potential-life holding. The case marks the first-ever federal challenge to fetal protection laws that punish women for using drugs during pregnancy.

Alicia Beltran, a Wisconsin woman who’s expecting her first child in January, couldn’t have expected that showing up for her regular prenatal checkup back in July would lead to her arrest and 78-day detention for substance abuse. She wasn’t using any drugs, after all, and her pregnancy was healthy. All she did was refuse to take an anti-addiction drug that the clinic had recommended to treat a dependency to pain pills that (she admitted) she’d once struggled with, but didn’t anymore, as tests confirmed.

Ms. Beltran is now seeking a federal injunction to block the enforcement of the 1998Wisconsin law under which she was detained. That law, like those in several other states including Minnesota, Oklahoma, and South Dakota, authorizes the state to detain and forcibly treat any pregnant woman who “habitually” uses alcohol or controlled substances. Such restrictions are designed, these laws explain, to promote the state’s constitutionally approved interest in “potential life.”

Read the full article here.

Dov Fox

Dov Fox

Dov Fox is Professor of Law and the Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law, where he has been named Herzog Endowed Scholar for exceptional scholarship and teaching. He also won BIOCOM's Life Science Catalyst Award for "significant contributions to human health through research, discovery, and entrepreneurship." His work has been featured in CNN, ABC, NPR, NBC, Reuter’s, Bloomberg, Slate, Daily Beast, Today Show, Boston Globe, and Washington Post. His latest book project, "Birth Rights and Wrongs," is forthcoming with Oxford University Press.

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