A Thought Provoking Article by Steven Jacobs on Roe v. Wade

Here is link to a very interesting paper by Steven Andrew Jacobs. The paper is entitled: “The Future of Roe v. Wade: Have Recent Developments Robbed Roe of its Original Justification?”

Here is the abstract:

“While many legal scholars and Supreme Court Justices on both sides of the national abortion controversy argue Roe v. Wade was incorrectly decided, I accept the Court’s decision as a provisional holding that was based on the relevant societal, scientific, and legal evidentiary records available to the Court. Since Planned Parenthood v. Casey held that precedent can be overturned when a change in relevant facts robs a ruling of its original justification, the Court should assess any challenge to Roe by assessing whether it is still responsive to present realities.

In 1973, Roe held that fetuses did not have rights and states could only have a compelling interest in protecting fetal life after viability because it could not find evidence of a consensus on when life begins or evidence that fetuses were recognized as legal persons outside of the abortion context. Today, the Court can take notice of a recent international study of biologists that found a scientific consensus on the view that a human’s life begins at fertilization and the nine contexts in which fetuses are recognized under the law, as most states have fetal homicide laws that recognize and punish non-abortive killings of fetuses as homicides or murders of human persons.

Since fetuses are humans in fact and persons under the law, Casey’s stare decisis standard has been satisfied and Roe has been robbed of its original justification; since Justices have argued that all humans are constitutional persons and Roe held that the recognition of fetuses as persons would cause the case for abortion rights to collapse, these developments permit the Court to protect fetuses’ constitutional rights. Whether the Court returns the abortion issue to the states, establishes fetal rights, or expands abortion rights with a new justification, it cannot allow our nation to be governed by an outdated and incorrect understanding of science and the law.”

Richard Myers

Richard S. Myers, the Vice-President of UFL, is Professor of Law at Ave Maria School of Law, where he teaches Antitrust, Civil Procedure, Conflict of Laws, Constitutional Law, and Religious Freedom. He is a Phi Beta Kappa graduate of Kenyon College and earned his law degree at Notre Dame, where he won the law school's highest academic prize. He began his legal career by clerking for Judge John F. Kilkenny of the U.S. Court of Appeals for the Ninth Circuit. Professor Myers also worked for Jones, Day, Reavis & Pogue in Washington, D.C. He taught at Case Western Reserve University School of Law and the University of Detroit Mercy School of Law before joining the Ave Maria faculty. He is a co-editor of St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Catholic University of American Press, 2004) and a co-editor of Encyclopedia of Catholic Social Thought, Social Science, and Social Policy (Scarecrow Press, 2007). He has also published extensively on constitutional law in law reviews and also testified before Congressional and state legislative hearings on life issues. Married to Mollie Murphy, who is also on the faculty at Ave Maria School of Law, they are the proud parents of six children - Michael, Patrick, Clare, Kathleen, Matthew, and Andrew. http://www.avemarialaw.edu/index.cfm?event=faculty.bio&pid=11705E7D4E0111010366