Roe may contain within itself the means for overthrowing it without either a Constitutional amendment or another vote by the Court.
A. The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development.* If this suggestion of personhood is established, the appellant’s case, of course, collapses**, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument*.
Texas urges that, apart from the Fourteenth Amendment life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins.
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability.
The codification into law (of the medical fact) that life begins at conception does not resolve the issue of whether the fetus is a person under the Fourteenth Amendment but it would go a long way in that direction.
The Court dissembled on the “difficult question of when life begins.” That really is not in dispute and the resolution of that question further weakens Roe.
The Court also made a distinction between the mother’s life and the “potentiality” of the human life of the fetus. If this fiction is erased by declaring that life - and not merely the potentiality of life - exists at conception then the “compelling” point (the point at which States may begin to restrict abortion rights in favor of the fetus) also goes to the moment of conception. This, again, presents serious problems for the law.
All in all, there is much more to Senator Paul’s legislation than is perhaps immediately apparent.