Stephen G. Gilles *
The Supreme Court of the United States describes a woman‘s constitutional right to an elective abortion as a right to terminate her pregnancy prior to viability. That description begs a question that may someday be as important in practice as it is in principle: whether the right to an elective abortion includes the right to “terminate” —that is, kill or otherwise ensure the death of—the pre-viable fetus. In today‘s world, the conduct that would squarely present this question—killing a pre-viable fetus although it could have survived an abortion and become a child—cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which means, by definition, that they have been determined to have no realistic chance of surviving outside the uterus, even with the help of neonatal intensive care. Today‘s abortion methods almost invariably involve the violent killing of the fetus. But even if abortion providers used fetus-sparing methods rather than fetus-killing ones, aborted fetuses would die within minutes after being removed from their mothers‘ wombs. Consequently, whether or not the woman‘s right to terminate her pregnancy includes a legal entitlement to kill the pre-viable fetus, elective abortion inevitably results in fetal death in practice. For that very reason, the woman has no choice in the matter: should she elect to terminate her pregnancy, the fetus will die even if she wants it to survive.
* © Copyright 2014. All Rights Reserved. Professor of Law, Quinnipiac University School of Law. B.A., St. Johns College, Maryland; J.D., The University of Chicago. Thanks to Deans Brad Saxton and Jennifer Brown for research support, to Choy-Shin Chan and Jonathan Jacobson for valuable research assistance, and to Laurie Feldman, Emmett Feldman Gilles, Nelson R. Lund, participants in faculty workshops at Quinnipiac, and participants in the 2012 University Faculty for Life Conference at Brigham Young Univer-sity Law School, for helpful comments.