Roe v. Wade Inverted: How the Supreme Court Might Have Privileged Fetal Rights over Reproductive Freedoms
| dc.creator | Nowlin, Jack Wade | |
| dc.date.accessioned | 2019-03-06T22:38:27Z | |
| dc.date.available | 2019-03-06T22:38:27Z | |
| dc.date.issued | 2012 | |
| dc.description.abstract | In Roe v. Wade, the United States Supreme Court privileged reproductive freedoms over fetal rights, but what if the Court had done the reverse in resolving the question of abortion under the Constitution-elevating fetal rights over reproductive freedoms? How might the Supreme Court have justified such a holding? What arguments, doctrines, and cases would the Court have invoked? What might concurring and dissenting opinions have said in response? A full analysis of these questions requires an exploration of a range of issues: the basis of constitutional personhood, the suspect nature of birth-status classifications, the fundamentality of access to the protections of the criminal law, and the application of heightened scrutiny to permissive abortion regimes. The resolution of these issues turns on cross-cutting questions concerning the appropriate methods of constitutional interpretation, the proper judicial role, and the rights and wrongs of abortion policy. This Article also follows Lon Fuller's classic article The Case of the Speluncean Explorers in taking the imaginative format of a hypothetical case set in a hypothetical jurisdiction with a series of fictional judicial opinions addressing the issues: a majority opinion, a concurrence, and a dissent. This unconventional format allows the Article to reimagine Roe v. Wade in a particularly vivid fashion that closely tracks the Court's original opinions and analyses. The Article's hypothetical case involves an equal protection challenge to a permissive abortion regime. The hypothetical jurisdiction is a variation on the United States in which the Court in Roe v. Wade upheld, rather than invalidated, antiabortion legislation. The fictional judicial opinions advance with equal vigor arguments for and against expansive protections for the unborn under the Equal Protection Clause. Part II of this Article discusses in more detail the recurrent project of rewriting Roe and the aims of this Article in reimagining Roe; Part III provides background on the Article's hypothetical jurisdiction and sets out the hypothetical opinions of the justices; and Part IV offers a conclusion. | en_US |
| dc.identifier.citation | 63 Mercer L. Rev. 639 | en_US |
| dc.identifier.uri | https://hdl.handle.net/2346/83164 | |
| dc.language.iso | eng | en_US |
| dc.publisher | Mercer Law Review | en_US |
| dc.subject | Roe v. Wade | en_US |
| dc.subject | Reproductive freedoms | en_US |
| dc.subject | Fetal rights | en_US |
| dc.subject | Abortion | en_US |
| dc.subject | Lon L. Fuller | en_US |
| dc.subject | The Case of the Speluncean Explorers | en_US |
| dc.subject | 62 Harv. L. Rev. 616 (1949) | en_US |
| dc.subject | Equal protection clause | en_US |
| dc.title | Roe v. Wade Inverted: How the Supreme Court Might Have Privileged Fetal Rights over Reproductive Freedoms | en_US |
| dc.type | Article | en_US |