Abortion Constitutionality Late-term abortion Philosophy Women's health

Allowing the Unborn to Live While Respecting Women’s Free Will

Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy is a new posting on SSRN. This article, published in 2005 by two prolife professors, argues that medical technology allowing gestation outside the mother’s womb may eventually erode the right to abortion, if that right is understood to mean the right to take the life of the unborn child. Arguing for an “evictionist” position, the authors advocate laws that would limit the means of abortion to those which provide the greatest opportunity for the unborn child to flourish while respecting the woman’s right to control her own body.

The authors approach their task more philosophically, rather than arguing the law. This philosophical approach may explain, but not excuse, the authors failure to discuss their proposal in terms of cases like Thornburgh v. American College of Obstetricans and Gynecologists, 476 U.S. 747 (1986) and Gonzales v. Carhart, 550 U.S. 124 (2007).

In Thornburgh, the Court struck down a Pennsylvania statute requiring that for post viability abortions doctors use techniques that provided the best opportunity for unborn child to be aborted alive unless, in physician’s good-faith judgment, the technique “would present a significantly greater medical risk to the life or health of the pregnant woman.” The Thornburgh Court also struck down a requirement that a second physician be present during abortions when viability was possible in order to attend to the medical needs of the child. See Thornburgh, 476 at 768-71.

Planned Parenthood Ass’n of Kan. City v. Ashcroft, 462 U.S. 476, 485 n. 8 (1983) overruled Thornburgh in part, upholding a Missouri statute requiring two physicians to be present for third-trimester abortions because the statute could be interpreted to create a health exception to that requirement.

It is clear that Thornburgh and Ashcroft are relevant to the proposal that women be allowed access only to abortion techniques that provide some opportunity for the child to live.

Less clearly relevant, but still potentially very helpful is the case of Gonzales v. Carhart. Gonzales v. Carhart upheld the federal partial-birth abortion ban by focusing in part on the impact of the abortion technique on the fetus as well as the mother.

The article also fails to provide any real discussion on the technological advances they claim may allow the legislatures and courts to support requiring women to use abortion techniques that enhance the child’s possibility of survival. In fact the only support they give for their optimism is note 135, a 2003 New Republic article predicting the advent of artifical wombs within five years. It would be good to know what has happened in the eight years since the magazine article and what peer-reviewed articles exist reporting on efforts to develop artificial wombs.

Perhaps the most interesting aspect of the article is the discussion of how the proposal is consistent with Judith Jarvis Thomson’s A Defense of Abortion.

I am hopeful the authors will expand on the legal analysis and scientific support for their proposal in a followup article. That would be a worthwhile project.

Block, Walter E. and Whitehead, Roy Joe, Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy (July 19, 2011). Appalachian Journal of Law, Vol. 4, 2005. Available at SSRN:

Teresa Collett

Teresa Stanton Collett is a professor at the University of St. Thomas School of Law in Minneapolis, Minnesota, where she teaches bioethics, property law, and constitutional law. A nationally prominent speaker and scholar, she is active in attempts to rebuild the Culture of Life and protect the institutions of marriage and family. She often represents groups of state legislators, the Catholic Medical Association, and the Christian Medical and Dental Association in appellate case related to medical-legal matters. She represented the governors of Minnesota and North Dakota before the U.S. Supreme Court as amici curiae regarding the effectiveness of those states’ parental involvement laws. She has served as special attorney general for Oklahoma and Kansas related to legislation designed to protect the well-being of minors and unborn children. She is an elected member of the American Law Institute and has testified before committees of the U.S. House of Representatives and U.S. Senate Committee on the Judiciary, Subcommittees on the Constitution, as well as numerous legislative committees in the states.