The Legal Status of the Unborn After Webster
Parness, Jeffrey A.
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The recent U.S. Supreme Court decision in Webster v. Reproductive Health Services, as well as recent advances in our understanding of human reproduction, has prompted new dialogue on the legal status of the unborn and on the level of legal protection appropriate for potential human life. In joining the dialogue, this commentary is prompted by several concerns. First, the landmark decision in Roe v. Wade has frequently been misunderstood, creating much confusion over the permissible boundaries of protecting potential human life. A debate about laws pertaining to the unborn must be founded upon a proper understanding of what the Supreme Court said and did in Roe. Second, since the Roe decision, the legal protections afforded the unborn have expanded. Yet many of the changes are unrelated to the Roe decision or to abortion generally. These changes are often interesting and controversial, but are shielded from public view. While the need for significant change in the legal status of the unborn still exists, many of the changes will not be driven by U.S. Supreme Court pronouncements on abortion. Thus, contemporary debates about the unborn should continue, but the debates should include a more thorough consideration of laws outside the abortion context. Third, a review of American laws demonstrates that current legal treatment of the unborn is both inconsistent and inadequate. Such failings should corrected.