H.R. 4292, The Born-Alive Infants Protection Act

[Lynne Henderson]

I'm a bit unclear here--why is everyone discussing *Roe* as if *Casey*
didn't substantially change *Roe?*
Lynne
-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Cornell Clayton
Sent: Tuesday, September 26, 2000 4:11 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: H.R. 4292, The Born-Alive Infants Protection Act


I take Leslie's point that the right can be conceptualized either way.
But, in the context of the Roe line of cases (extending back through
Griswold and Skinner), its seems clear to me that the Court is discussing
the right to procreate.  (Although the right to physical autonomy is
certainly important we nevertheless recognize all sorts of state
limitations/intrusions upon that right -- blood alcohol tests, x-ray
machines at airports, urine tests, etc.)  I'm interested if others think
that under Roe (whatever one's thinks of its wisdom), the state retains the
authority to force women seeking abortions to undergo procedures that would
keep the fetus alive?
CWC

At 08:24 AM 9/26/00 -0400, you wrote:
>I don't see why it would be silly at all.  It all depends whehter the
right is
>control over the use made of her own body, a physical autonomy right,
linked to
>the common right of control over whether one receives medical treatment, or
>whether it is a right to decide whether one does or does not produce
offspring.
>If it is the former, then such things as fetal transplants, which are
genuinely
>within the realm of medical possibility in the foreseeable future, could
be made
>mandatory upon women who want to rid themselves of a fetus perceived as
>burdensome.  If it is the right to decide on procreating, then the state
could
>never mandate, for instance, that the extra fertilized eggs produced in
in-vitro
>fertility treatment be kept alive and made available to people wanting
>children.  Of course it might be both.
>LFG
>
>Cornell Clayton wrote:
>
>> At 03:08 PM 9/25/00 -0600, Michael McConnell wrote:
>> >The constitutional right at issue in Roe was the right to terminate
one's
>> >pregnancy... There is no independent right to kill the fetus, or to
>> >guarantee that the termination of pregnancy produces a dead fetus.
>>
>> My understanding of the Roe line of cases is that it protected the right
to
>> decide when and whether to procreate, not simply against the invasion of
>> one's body or person.  That right, as I understand it, exists up to the
>> point of natural conception.  In Roe it was conditioned by the state's
>> compelling interests (including protecting the health and safety of the
>> woman and protecting the potential for human life).  So construed, one
might
>> well argue that there is a right to decide whether a fetus, once
aborted, is
>> kept alive by the state against the woman's wishes. Wouldn't it be silly
to
>> think that the constitution protects a woman's right to have an
abortion, if
>> the state retained the power to force her to do it in a way that kept the
>> fetus alive?
>>
>> Cornell Clayton
>> Washington State University
>