How New Genetic Technologies Will Transform Roe v. Wade

JB

Roe v. Wade has three holdings: (1) that the unborn are not constitutional persons, (2) that governments have legitimate and important interests in unborn life and (3) that women have a constitutional right to abortion that trumps those state interests. Although people often identify Roe with its third holding about the right to reproductive privacy, Roe's first and second holdings may prove far more important in the long run. Moreover, Roe's third holding will make more sense not as a general claim about reproductive privacy but as a claim about sex equality.

Contraception and abortion were major concerns when Roe was originally decided. But as new genetic and reproductive technologies move to the forefront of public concern, the relative importance of Roe's three holdings will shift, changing the decision's legal and political meaning.

Technological advances will expose important differences between the sex equality and reproductive privacy interpretations of Roe. A reproductive privacy interpretation might offer constitutional protection for genetic engineering of offspring and some forms of private genetic discrimination. An equality interpretation might not, especially if genetic technologies are deployed in ways that undermine women's interests and produce new forms of social inequality.

Where new reproductive technologies do not further equality between the sexes, their connections to the underlying justification for the abortion right become greatly attenuated. Then Roe's first two holdings control: Although the state need not treat fertilized ova or embryos as persons, it may regulate genetic technologies in the public interest. Thus, in the future Roe will stand for a proposition that seems quite different from the way we currently imagine it: How the state regulates the manipulation and treatment of unborn life and the human genome should be left to the political process except insofar as it conflicts with guarantees of equal citizenship and social equality. This interpretation of Roe's three holdings may well produce new alliances among people who previously thought of themselves as pro-choice and pro-life.