Abortion Evolution: How Roe v. Wade Has Come to Support a Pro-Life & Pro-Choice Position

Abstract

Roe was decided in January 1973, almost five decades ago. Following the Court’s reasoning, if greater consensus develops that human life begins by a certain point during pregnancy, the right to privacy and to abortion after that point would be curtailed by the rights of the new human life. Science and law have developed significantly since Roe. The question begged attention—how have science and law progressed in the past four and a half decades? I began exploring whether any greater consensus had developed since 1973 on the issue of when human life begins. The search proved surprisingly rewarding. The results merit attention.

To structure the analysis, this Article describes and explores support for the following positions: (1) the view that human life begins at conception; (2) the view that human life begins just after implantation; (3) the view that human life begins with the coming of the heartbeat; and (4) the view that human life begins when brain development has reached a critical point. The article addresses developments in state law, federal law, and international law. The article also notes scientific developments, including technological development of the sonogram, accepted definitions of death, and the debunking of a persistent scientific myth that has complicated embryological understanding.

Finally, noting the arbitrariness suggested by Justice Blackman in attributing significance to the moment of viability,14 this Article applies the reasoning of Roe to the new factual and legal landscape. Up-to-date application of Roe’s legal reasoning to current scientific knowledge and legal precedent yields a groundbreaking conclusion about abortion rights. We are failing in our fidelity to Roe. We are no longer abiding by the Supreme Court’s reasoning in Roe.