THE FROZEN EMBRYO ANALOGY

By SHERRY COLB


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Thursday, Jul. 13, 2000

On June 28, 2000, the Supreme Court invalidated a Nebraska statute banning "partial-birth" abortion. Nebraska argued that "partial-birth" abortions differ from other types of abortions. Properly analyzed, however, the procedure for a partial birth abortion is no different from other (legal) abortions. A comparison between abortion debates and disputes over frozen embryos will illuminate why this is so.

In a series of rulings beginning in 1973, the Supreme Court has held that the Constitution protects the right to terminate a pregnancy until fetal viability (and later, if necessary to the mother's life or health). In the Nebraska case, the Court found that the statute was unconstitutional because it did not exempt pre-viability abortion or medically necessary abortion from its prohibition. The case involved a straightforward application of existing doctrine.

Public ambivalence about "partial-birth" abortion, however, stood in sharp contrast to this doctrinal simplicity. Across the country, an ordinarily pro-choice public overwhelmingly supported legislation prohibiting this particular abortion procedure. In a "partial-birth" abortion, as defined by the 1995 proposed congressional legislation (and as adopted by many states), the term "partial-birth" abortion refers to "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery."

Status and Location: Distinguishing Partial-Birth Abortion From Infanticide

Abortion ordinarily differs from infanticide in two respects. One involves developmental status. A fetus has not yet fully developed into a baby, whereas an infant has. The second difference concerns location. An abortion occurs inside the womb. More importantly, the pre-viability aborted fetus could not have survived outside the womb, even with extraordinary medical intervention. Its location as a living being is therefore necessarily inside the womb. The importance of this location variable emerges again in a distinct reproductive context: the frozen embryo case.

Due to advances in reproductive technology, couples having difficulty conceiving a child can opt for in-vitro fertilization. Once embryos are created in this fashion, they can be frozen for later implantation. In the interim, the couple might split up -- throwing into question the future of the embryos. One ex-spouse may wish to destroy them, while the other might seek to implant them.

Were these embryos located inside a woman instead of a test-tube, the woman would decide their future. A woman has a constitutional right to an abortion regardless of her partner's wishes. Conversely, she may carry her pregnancy to term, even if her partner wants it terminated. A woman's interest in what happens inside her body -- an interest in "bodily integrity," in legal terms -- thus trumps the man's competing interests.

In the frozen embryo context, this bodily integrity issue disappears. Like a newborn infant, an embryo can exist and develop further without imposing any unwanted pregnancy. The embryo's present location outside a woman's body, moreover, does not preclude its later development into a child. Destroying the embryo under these circumstances thus shares the location variable with infanticide.

Viability and Location

Return to "partial-birth" abortion. If destroying frozen embry os shares features of infanticide, then destroying a partially delivered fetus might bear an even closer resemblance. Like the frozen embryo, the fetus appears to survive without imposing unwanted pregnancy. Unlike the embryo, however, the fetus is also highly developed. Destroying the "partially born" fetus may thus strike many as perilously close to infanticide.

Crucially, however, the ability of the "partially born" fetus to survive outside the womb turns out to be illusory -- at least prior to viability. Although the fetus is literally alive following partial delivery, it is not yet developmentally equipped to survive outside its mother's womb. Only once the fetus reaches viability is it capable of such survival. Viability thus severs the link between terminating a pregnancy and destroying a fetus. Accordingly, after viability, states may prohibit abortion where consistent with the mother's health.

One puzzle that emerges from this discussion is the degree to which future reproductive technology -- by moving viability -- might convert what is now "abortion" into something akin to infanticide. Various members of the Court have publicly remarked upon the oddity of this possibility. It seems less odd, however, once we appreciate the centrality of a woman's bodily integrity interest to her constitutional entitlement to abortion.

If a fetus could grow into a healthy baby inside an artificial womb, it might be appropriate to limit a "parent's" right to destroy the fetus earlier than we would limit the analogous right to terminate a pregnancy. Presently, even a frozen embryo might have human value that precludes one "parent's" unfettered right to destroy it.

Removing the bodily integrity interest from the scales can thus be decisive. And as long as technology lags behind biology, a woman's autonomy and equality entitle her to terminate an unwanted pregnancy prior to fetal viability -- whether by "partial-birth" abortion or another morally equivalent method. The Court acted wisely in reaffirming this entitlement by striking down the Nebraska law.

Sherry Colb is a Professor of Law at Rutgers School of Law in Newark.

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