The limits of Roe where future *living* children are involved

[Volokh, Eugene]

	I'm not sure how far the two-part alternative outlined in
David's post is from my proposal; in practice, the important point is
that the woman will realize that if she's going to take the child to
term, she better do what she can to minimize the risk of an early death
for the soon-to-be-born child.

	But more broadly, even if the test were strict scrutiny, why
wouldn't some such approach be constitutional?  I would think that even
if a state lacks a compelling interest in protecting the lives of the
unborn whom the woman will keep unborn (by aborting them), the state
surely has a compelling interest in protecting the lives of those whom
the mother is planning to give birth to, even if they won't be born for
another few months.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of David Cruz
> Sent: Thursday, January 05, 2006 5:24 AM
> To: conlawprof at lists.ucla.edu
> Subject: Re: The limits of Roe where future *living* children 
> are involved
> 
> 
> On Wed, 4 Jan 2006, Volokh, Eugene wrote:
> 
> > [snip]
> > 	What about, as David suggests, the possibility that Moe 
> can change 
> > her mind and abort?  I think that when the legal system learns that 
> > Moe is pregnant and HIV-positive, it should be entitled to 
> require her 
> > to make a decision:  If she wants to abort the child now, 
> she's free 
> > to do so, but if she doesn't, then she must take the drugs 
> that will 
> > increase the chance that the child -- which she seems to be 
> planning 
> > to carry to term -- will be HIV-negative.  I realize that 
> this burdens 
> > her right to an abortion in some measure, because it denies her the 
> > ability to change her mind.  But such a burden is proper.  That a 
> > woman has the right to change her mind about abortion when the only 
> > issue is whether the baby will be born doesn't mean the 
> result should 
> > be the same when the issue is whether a future living 
> person will have 
> > a deadly and debilitating disease.
> >
> > 	Eugene
> 
> Granted, whatever "undue burden" analysis is, it's not strict 
> scrutiny. But it still seems relevant that the state might 
> tell women who might be in Moe's position that (1) if they do 
> not abort their child and do not get treatment pre-viability, 
> they may face prosecution, and (2) if they carry the 
> pregnancy past viability they will be forced to have 
> treatment. Then, the choice remains with the woman and is 
> burdened less than Eugene's approach.  I take it that his 
> characterization of arguments in favor of the woman's 
> autonomy as "aggressively present-focused" would then allow 
> the state to insist that HIV+ women must within a week of 
> discovering their pregnancy either secure an abortion or 
> commence treatment; at least, I don't see the basis for 
> saying that such a rule would impose an unconstitutional 
> burden on a woman's right to choose an abortion if Eugene's 
> argument above is accepted.