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Publication Date

3-2012

Document Type

Article

Abstract

In Roe v. Wade, the United States Supreme Court privileged reproductive freedoms over fetal rights, but what if the Court had done the reverse in resolving the question of abortion under the Constitution- elevating fetal rights over reproductive freedoms? How might the Supreme Court have justified such a holding? What arguments, doctrines, and cases would the Court have invoked? What might concurring and dissenting opinions have said in response? A full analysis of these questions requires an exploration of a range of issues: the basis of constitutional personhood, the suspect nature of birth-status classifications, the fundamentality of access to the protections of the criminal law, and the application of heightened scrutiny to permissive abortion regimes. The resolution of these issues turns on cross-cutting questions concerning the appropriate methods of constitutional interpretation, the proper judicial role, and the rights and wrongs of abortion policy.

This Article examines these questions and demonstrates, as a conceptual matter, that the Supreme Court could have established a fetal right to the equal protection of the criminal laws as plausibly as it established a right to abortion in Roe, but that such a decision would have been subject to the very same kinds of substantive objections as the decision in Roe-grounded in commitments to historically-oriented interpretive methods, judicial restraint, and rival abortion policies. The central purpose of this Article is to advance the debate over the constitutional status of abortion by moving that debate outside of its familiar Roe-centered analytical grooves. This Article will show that the range of reasonable argument on the question of abortion under the Constitution is broader than is commonly conceived and extends well beyond familiar choices-protecting a right to abortion or deferring to legislative prohibitions of abortion-to protecting the rights of the unborn from a denial of the equal protection of the criminal laws embodied in permissive abortion laws. This Article builds on the perennial project of "rewriting" Roe v. Wade, but it broadens that project to include a fundamental "reimagining" of the Court's encounter with abortion as an equal protection challenge in defense of fetal rights. The "inversion" in the title of this Article refers to the studied use of points of argument from the original Roe opinions to support their mirror-image opposites in an equal protection analysis.

This Article also follows Lon Fuller's classic article The Case of the Speluncean Explorers in taking the imaginative format of a hypothetical case set in a hypothetical jurisdiction with a series of fictional judicial opinions addressing the issues: a majority opinion, a concurrence, and a dissent. This unconventional format allows the Article to reimagine Roe v. Wade in a particularly vivid fashion that closely tracks the Court's original opinions and analyses. The Article's hypothetical case involves an equal protection challenge to a permissive abortion regime. The hypothetical jurisdiction is a variation on the United States in which the Court in Roe v. Wade upheld, rather than invalidated, antiabortion legislation. The fictional judicial opinions advance with equal vigor arguments for and against expansive protections for the unborn under the Equal Protection Clause. Part II of this Article discusses in more detail the recurrent project of rewriting Roe and the aims of this Article in reimagining Roe; Part III provides background on the Article's hypothetical jurisdiction and sets out the hypothetical opinions of the justices; and Part IV offers a conclusion.

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