On the Legal Status of the Proposition that "Life Begins at Conception”

Jed Rubenfeld, Yale Law School


For eighteen years, a majority of the Supreme Court has upheld abortion rights without deciding whether or when a fetus may be regarded as an independent person. Today, another set of Justices would deny those rights on the ground that the fetus's status is an issue for state legislators to resolve. These mirror-image strategies share a common aim: Each allows the Court to evade the single question that, in every discourse but the judicial one, is by now synonymous with the abortion debate itself—the question of when human life begins.

The policy of avoidance began at the outset of the Court's abortion jurisprudence. In Roe v. Wade, the Court expressly refused to "speculate" about "this most sensitive and difficult question."' Instead, the Roe Court predicated governmental power to forbid abortion on the putative state interest in "protecting the potentiality of human life." It was this interest in "potentiality" that the Court held to become "compelling" when the fetus reaches viability.