October 13, 2006

What if Roe v. Wade were overturned?

I'm here in St. Louis at the St. Louis University School of Law, where I'm a panelist responding to a lecture given by lawprof Richard Fallon on the subject of what things would be like if Roe v. Wade were overturned. He's speaking now, so let me keep you informed.

Fallon says he's never taken a position on whether Roe should be overturned, and his point here is to examine the various legal problems that would arise if it were overturned. He identifies four fallacies about overruling Roe:

1. There's a belief that overruling Roe would wipe the slate clean. In fact, there are old statutes on the books of the various states outlawing abortion. Would these statutes spring back into effect? Could these statutes be enforced retroactively?

2. There's a belief that overruling Roe would necessarily return the question to the states, but there's "almost no doubt" that Congress has the power under the Commerce Clause to pass laws that trump whatever the states might want to do.

3. There's a belief that overruling Roe would extract courts from the abortion controversy -- "get out of the abortion umpiring business," as Justice Scalia once put it. But really, the courts will just have to deal with a new set of abortion-related questions. What if a state outlawed abortion even where it was needed to save a woman's life? Don't women have some right to defend themselves at the constitutional level, quite aside from whether there's a broader right to abortion? And then there would be all sorts of questions about the scope of that right that would haunt the courts endlessly. And what if some states tried to restrict their citizens as they sought to travel to other states to obtain abortions? Complicated legal questions would arise here too.

4. There's a belief that Roe v Wade could be overruled without having much effect on the rest of constitutional law. What would be the ground for overruling the case? Even if the Court took a "modest" approach to the overruling and merely found no fundamental right to abortion, it would represent a triumph of "popular constitutionalism," and this might inspire new political efforts to exert pressure on the Court to change things to respond to political pressure.

Now, the commenters. Panel 1 is up. I'm on Panel 2, after lunch. Susan Appleton of Washington University Law School is speaking now. Also on this panel: Stephen Gardbaum (UCLA School of Law), Michael Greve (American Enterprise Institute), and Mark Rosen (Chicago-Kent College of Law).

FINALLY FINISHING THIS POST: Panel 2 was Anthony J. Bellia, Jr. (Notre Dame Law School), Alan Howard (Saint Louis University School of Law), and me. I said I thought that to collect all the possible post-Roe legal troubles is, implicitly, to make an argument against overruling Roe. Overruling Roe would create a new set of problems, and it is natural (and conservative) to prefer to the known problems to the unknown, but I think those who like Roe have a motive to underestimate the problems we have now and to exaggerate what the new problems would be. I support preserving Roe myself, but I don't think those who support overruling it should or will be pushed back with hypertechnical legalistic puzzles that essentially say: this is all too complex for you to fathom, so you really aren't competent to have an opinion here.

At the end of the first panel, a woman asked: If there really are all these problems without Roe, why didn't we see them before Roe? Afterwards, I said to one of the other law professors, that was a great question, do you know who that woman was? Answer: Phyllis Schafly's daughter.

39 comments:

George said...

A thoughtful in-depth piece on this topic is "The Day After Roe" in the June 2006 issue of "The Atlantic."

http://www.theatlantic.com/doc/200606/roe

The gist of the article may be as follows:

"Once Roe is gone, one argument goes, each state would be free to reflect the wishes of local majorities, and the country would quickly reach a democratic equilibrium. But that assumption, as we’ve seen, may be too optimistic. Since the abortion battle will be fought out in the states and in Congress, rather than settled by a national referendum, it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported."

Alan said...

Since the Shiavo mess I've become a rabid pro-choicer. I just don't see how a conservative can say in one breath that they believe in limited government and in the next claim the need for government to make reproductive and end of life decisions for individuals. It's a gross overreach of government. If the Democrats weren't so naive about national security I'd vote Democrat solely on this issue. I used to tolerate the pro-lifers in the GOP...now I despise the GOP because of them.

John Thacker said...

claim the need for government to make reproductive and end of life decisions for individuals.

As opposed to the need for individuals to make end of life decisions for other individuals? I believe in personal choice-- but I don't really believe in the ability of a husband to make decisions for a wife (absent a clear document), and there are plenty of decisions that I don't think a parent should be able to make for a child (killing them being one of them).

"it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported."

It's possible. Then again, the Court has already been thwarting the moderate compromises that majorities have supported, and that are implemented in most European countries. In practice, US law is quite extremist on the issue compared to Europe.

MadisonMan said...

In practice, US law is quite extremist on the issue compared to Europe.

And not just with regards to abortion.

Goesh said...

To continue with my lawyeresqueness kick, I suppose the first inclination would be towards paths of previously established 'order' vis-a-vis the old Laws still on the books. The pill and coat hangers would be the reality of the People's response but in what proportion I haven't a clue. This would be good fodder though for the political fight George alludes to, that much is certain.

David said...

There is a conflict between capital punishment and abortion that the pro-choicers do not want to address.

Who decides when life begins? We already know who decides when life will be terminated and for what reason. The inherent value of life is the bedrock of our civilization as opposed to Islam, for instance.

A choice made for any termination of life must not be taken lightly. The decisions, or failure in the process thereof, that force the choice to terminate/prolong life define our morality, ethics, and principles.

A murderer in our midst diminishes us as a society in real terms. An inconvenient fetus diminishes principled behavior both morally and ethically.

Roe V Wade is not the "Kobayashi Maru" scenario of Star Trek fame. It's fundamental flaw can be found in it's lack of a definition of when life begins!

Sydney Carton said...

Prof. Althouse,

You forgot the biggest falacy of all: the one peddled by feminists that overruling Roe would outlaw abortion everywhere and mean a return to back-alley abortions.

Brent said...

Why is it that the courts(with the Massachusetts exception, so far) are so reticent to enforce gay marriage?

Because they are smart enough to see the damage done to the national fabric by Roe.

Goesh said...

I have no doubt the lower socioeconomic folks would resort to many more back-alley abortions but I like to think we still have enough going as a nation that our alleys would not be flushing blood onto the streets in torrents.

yetanotherjohn said...

I would think we would have some ideas on this.

1) State laws on the books would return to force. This is similar to Idaho's speeding law that was restored when the federal mandate overriding it was removed. You wouldn't be able to sue or prosecute retroactively. This would be similar to changes to NLRB rulings which change liability going forward, not retroactively (other than in the case at hand).

2) I am not so sure about the congressional right to interfere on the commerce clause. I seem to remember a very early case talking about it being ridiculous to say the federal government had the right to regulate matrimony as a means fo encouraging more offspring, even though it would be argued more offspring would mean more potential soldiers and thus a matter of national defense. Of course, since FDR threatened to pack the court, there has been a great deal more tolerance to the idea that congress can do whatever they want if they say it involves commerce.

3) I agree that courts would still be required to be involved in interpreting the law for individual cases. The difference of course would be the courts would be interpreting the laws of the legislature rather than a law the judges found in the penumbra (aka shadow) of the constitution despite the writers of the constitution being undoubtedly horrified that anything they could have written could possibly had meant that).

While a right to "self defense" could certainly be put into the constitution, I am not sure what would be cited to find it there now. Certainly I have heard no argument that the requirement to flee before defending one self is in any way a violation of ones constitutional right, though other states don't require it. To find such a right would at least not have been beyond the ken of the writers of the constitution, but I would still question it. At what level is this self defense to be applied against other laws. If I am hungry, can I steal for my self defense? If I am a drug addict, can I kill if there person is between me and the drugs my body "needs"? Further, while Roe claimed to ignore the question of the rights of the unborn (then promptly decided that depending on the month of pregnancy the unborn had drastically different protections), the question of self defense would also have to include the question of the life of the unborn.

4) Certainly the granting of Roe engendered new thoughts on what was and was not possible under the constitution. Would you expect any less of seeing it overturned. Would you have embraced Roe if they had written the exact same opinion, but tacked on to the end "Of course our finding a right to abortion would change how people view the constitution, so we will not find such a right".

4)

chickenlittle said...

How would Wisconsin fare under such a change? I no longer live there, so I don't really know. In my mother's day, girls travelled to California for abortions.

me said...

If Roe is overturned, abortion will be legal in the northeast and on the west coast, and mostly illegal everywhere else. Thus, the wealthy women will travel and get abortions, and the poor women will buy black market RU-486 or self-abort in other ways -- hopefully a reliable underground network will spring up and coathangers won't have a comeback. One messy question left would be states who have laws saying a fetus has the same rights as you or me from the moment of conception then making it illegal for women to travel outside the state for an abortion. It might be a violation of the right to travel and move freely, but then if you consider the pregnant woman really two people in one body, the state can say they have the power to protect that other person inside the woman's uterus --- If she's a danger to another person's life, and that person happens to be inside her body, well we can lock her up to protect the other person. In that case a pregnant woman's body belongs to her state for the duration of her pregnancy.

Of course that leaves out the question of a federal ban on abortion. That would be a hell of a fight....:)

Seven Machos said...

Abortion is simply illegal in many European countries. There is certainly no unified set of abortion laws in "Europe."

I love how so many people who simply don't know what they are talking about point to Europe as a paradise when it comes to some niche of law. If only we could be more like "Europe." Then we'd be better off. Yeah!

In fact, being like "Europe" would be just like having 50 states with 50 different abortion laws.

Seven Machos said...

What is wrong with abortion being legal in New York and illegal in Mississippi? That is the essential de facto situation right now, anyway.

On the article in The Atlantic: I have read it and it is ridiculous for two reasons:

1. It's probably true that the federal government will step in and make law. It will be hard for even the super geniuses on the Supreme Court to explain how federal jurisdiction had extended to the Supreme Court for 30 years or more but somehow fails to extend to the national Congress now.

2. The Atlantic's argument goes to the left's irrational fear of majority rule. (Not saying The Atlantic is a leftist rag; I subscribe. But the article is pretty leftist.) Since the abortion battle will be fought out in the states and in Congress, rather than settled by a national referendum... Think about that. Think about how strange and wrong that is. Congress is a national referendum. Congress tends to produce law that national majorities want or, at the least, the compromise that is possible among competing national pluralities. Courts are the most non-democratic institutions in America. When was the last time you voted for a Supreme Court justice? Only leftist elitists see "moderate compromises" in what courts produce.

chickenlittle said...

Imagine if feminists put the time and effort (not to mention money)into childcare and childcare reforms that the public perceives they put into defending late-term abortion? Hell, they might even get more men to join them. But that's asking too much right?

Revenant said...

Reality checks are needed, I see.

me,
If Roe is overturned, abortion will be legal in the northeast and on the west coast, and mostly illegal everywhere else. Thus, the wealthy women will travel and get abortions, and the poor women will buy black market RU-486 or self-abort in other ways

Meanwhile, back in reality, you don't have to be wealthy to travel to another state. Even if you live in the deep South or midwest you can get to a "blue state" for two or three hundred bucks at most, and generally for a lot less than that. Almost the entire population of the United States either lives in a blue state or can drive to one and back again over the weekend. There is no excuse for a woman of childbearing age not being able to get her hands on what amounts to a few days' salary at McDonalds -- but in any case, the problem can be solved by redirecting some of the money the pro-choice lobby to help poor women travel.

One messy question left would be states who have laws saying a fetus has the same rights as you or me from the moment of conception then making it illegal for women to travel outside the state for an abortion.

Even assuming that the states could get away with passing a law like that, they can't prove that a woman broke it. So again the threat is nonexistant.

seven,
Abortion is simply illegal in many European countries.

That's not true at all. See here. It IS true, however, that there are many European countries that restrict abortion much more heavily than the United States does.

Seven Machos said...

Revenant -- I stand by my statement, mostly. "Simply illegal" is a stretch. I should have been more circumspect.

Nevertheless, there are many places in Europe where it is is very difficult to get an abortion. The blue "on demand" countries aren't all "on demand." Croatia and Serbia, for example, don't have abortions on demand, like you can just walk in and get an abortion. Yet they are blue on the map to which you link.

Simon said...

Well, this is vaguely frustrating. I'd have given serious thought to driving over to St. Louis for that debate, with or without Ann's presence, but certainly with.

I think Jeff Rosen's Atlantic piece, cited by George, raises a host of serious questions (for example, if Rosen really believes half of what he writes, then as a Democrat, he should advocate the immediate overturning of Roe).

Lastly, I strongly dissent from the idea that Congress has the power under the commerce clause to legislate generally on abortion. Certainly there are specific ways that Congress can legislate about abortion: conditioning federal money, for example, or legislating for D.C. or the military. But in my view, abortion is simply too far disconnected from commerce (under conservative legal theory of the commerce clause, at any rate) to count. If the test for whether an action is sufficiently connected to interstate commerce is whether money changes hands, then surely - by even stronger reason than Justice Thomas' Raich dissent - then Congress can regulate practically anything? Abortion is morally wrong, but it is not commerce. Merely paying for it by credit card rather than some kind of speculative purely-intrastate fungible commodity doesn't suffice to extend Congress' grasp to the issue. Or if you want to make the argument - as Andrew Hyman has done - that the mere fact that abortion "create[s] a need for medical supplies that have to be obtained via interstate commerce," then you have to explain why that is any different to Lopez: if abortion's connection to interstate commerce is that it must be paid for using some means of exchange which travels across state lines, and that it "create[s] a need for medical supplies that have to be obtained via interstate commerce," why is it not equally true that guns must be similarly paid for using some means of exchange which travels across state lines, and that guns similarly create a need for bullets that have to be obtained via interstate commerce?

Simon said...

Alan said...
"Since the Shiavo mess I've become a rabid pro-choicer. I just don't see how a conservative can say in one breath that they believe in limited government and in the next claim the need for government to make reproductive and end of life decisions for individuals."

That is a straw man at worst and a red herring at best. The former because not every Republican (and certainly not every pro lifer, for that matter) supported what the House did on Schiavo, while half the Democrats who participated in the House vote voted in FAVOR of the bill. The latter because what happened with Terri Schiavo has NOTHING to do with abortion.

Seven Machos said...

I don't understand the Schiavo thing.

We had a husband who wanted to allow his wife to die. The wife's parents who did not want the wife to be allowed to die. The husband had legal authority over the wife (Attention libertarians: POWER GIVEN BY THE STATE).

If the money was there -- and it seemed to be there -- why should the husband's wish be granted and the parents' wish not be granted? Shouldn't the law be that people should live if there is money for it and no one (not even, say, a pregnant mother) is hurt or encumbered in any way?

nms said...

The reality is that no court ruling, no anti-choice terrorists, no criminal penalties will ever stop women from obtaining abortions (legal or illegal). Women who become pregnant unintentionally will ALWAYS find a way to terminate that pregnancy--whether she has to risk her job, her relationships, her health or her life. Period. The decision when and where to become a parent will always be at the core of humanity. You can argue the morality of abortion all you want- until you are a pregnant woman who doesn't want to be pregnant, you will never understand the complexity of the decision.

For that simple reason, government, religion and self-annointed do-gooders should keep thier opinions to themselves.

Seven Machos said...

That was some sweet, unreasonable propaganda, nms. Because, clearly, closing down abortion clinics and illegalizing abortion would have no effec -- none, none effect -- on the number of abortions.

However, you should stop and think about the foolishness of what you have just said. If governments have no role in abortion, that means that Roe would not exist. Abortion would not be a guarantee of any kind. No government force would protect abortion clinic structures or abortion doctors. There would be no government subsidy of abortion. Is that really what your fantasy world looks like?

OddD said...

nms,

Yeah, I've heard that legalizing abortions doesn't change the number of abortions that are actually done, just their safety.

That's false to some degree. I've met people who are here today because their mothers couldn't get an abortion 40 years ago.

If a woman has no intention of getting an abortion, the law won't change that. If a woman is determined to have one, then the law can't stop her. If a woman is on the fence, the law acts as discouragement.

Factor in that women are (majority) anti-abortion*, I think there's a strong case to be made that the law has a definite effect.

This is not to take a side on the issue one way or the other, but to point out that only one woman has to not get an abortion for the law to have reduced the number of abortions, and it's safe to say that the number is greater than one, and probably is a statistically significant percentage.


*A friend of mine did polling work during the '80s and '90s for NARAL. Women tend to be anti-abortion more than men. When the issue is close, men are the ones who push pro-choice through.

chickenlittle said...

nms said
"...for that simple reason, government, religion and self-annointed do-gooders should keep thier opinions to themselves."

Your logic could just as well be used to defend gay marriage- gay people will always marry-you cannot understand the motivation unless you are a gay-please make it legal.
I could argue that you couldn't possibly understand the motivation behind Terry Shiavo's parents actions- they gave her life in the first place-why should the husband (who had icky motives) be allowed to pull the plug? You seem to be arguing natural rights or something. The problem with your logic is that the sum of each individual act has impact on society. Just look at Russia if you want an example of out-of-control abortion on demand.
Getting back on topic, as I see, there are defensible legal arguments on both sides, both populated by proponents. At present, the proponents for one side dominate, but that is changing. And both sides are doing a lousy job at defending their own extremist's positions.

Simon said...

Seven Machos said...
"I don't understand the Schiavo thing."

I think it's a debate best kept out of this thread, to avoid any possible muddying of the waters per Alan's comment. The only way in which it relates to abortion is that it was, like abortion, the subject of inappropriate Federal meddling in a subject of pure state jurisdiction.

Revenant said...

Women who become pregnant unintentionally will ALWAYS find a way to terminate that pregnancy--whether she has to risk her job, her relationships, her health or her life. Period.

Eesh. Speaking as a pro-choice person, I would like to say: Please never talk to anyone about abortion ever again. If you really believe what you wrote I can only assume you don't actually know any women.

Most women who become pregnant unintentionally opt to keep the baby or put it up for adoption. Abortion, while common, is NOT the usual means by which an unintended pregnancy is handled. Even among those women who would prefer to abort their pregnancies, not all will be willing to risk prison time to do so. And almost none would, as you suggest, abandon their friends, relatives, job, and health just to avoid giving birth. Because very few women share your view that a fetus is some horrible, "Alien chest-burster" pod-person-like organism that must be destroyed at all costs.

Oh, and can we please, please, PLEASE not rehash the goddamned Schiavo case again?

Seven Machos said...

I want to add that I have no interest in bringing up the Schiavo case. Let's avoid it.

The same sort of person brings it up again and again, though, and always to make the same faulty point. So I feel compelled to remind that it wasn't some cut-and-dried case, that these parents had a good moral and legal case.

submandave said...

"The reality is that no court ruling, no anti-choice terrorists, no criminal penalties will ever stop women from obtaining abortions ... For that simple reason, government, religion and self-annointed do-gooders should keep thier opinions to themselves."

nms, this has always been the least rational argument for abortion. "They're gonna do it anyway, so it shut up about it." One could just as easily argue that punks are going to slap kids and take their candy anyway, so why bother to make it illegal.

The fundamental reason pro-life activists work to restrict abortion-on-demand is for the simple reason that they believe it is is a greater morally wrong to stop the life potential of an innocent human-to-be than to force a woman to cary to term. The law is rife with situations and cases where the rights of two or more individuals come in conflict. Hell, one may say that's the only legitimate reason to have laws. Abortion-on-demand carries the implicit assumption that either the unborn have no rights at any point in their development until (for some reason) the moment they begin respirating air or that the most trivial right of the mother always trumps the greaterst right,the right to life, of the unborn. This is an assumption that, if clearly stated, I doubt most Americans would agree with.

Simon said...

"Abortion-on-demand carries the implicit assumption that either the unborn have no rights at any point in their development until ... the moment they begin respirating air[,] or that the most trivial right of the mother always trumps ... [and right] of the unborn."

Well, to be fair, I think that the paradigm is that the pro choice crowd doesn't believe that the unborn child is alive, and that it is therefore incapable of having any rights. That position doesn't make much sense to me, but I do recognize the sincerity of their views.

MadisonMan said...

Whether or not you want to rehash Schiavo, the fact is that the entire Republican Leadership jumped on the Buttinsky Bandwagon. Simon, it may be true that Schiavo muddies the water, but who was carrying the dirt to the dam? The President, the Speaker, the Senate Majority Leader. All of them. This is who you want to make your medical decisions for you?

Politicians have no business deciding my best course of action when I'm talking to a doctor. Why? Because they don't have my best interests at heart...they're concerned first and foremost with their donors and their re-election possibilities.

chickenlittle said...

"the pro choice crowd doesn't believe that the unborn child is alive,.."

Belief vs. disbelief, is that what it boils down to?

chickenlittle said...

Madison Man
"Politicians have no business deciding my best course of action when I'm talking to a doctor."

That's also a decent reason for government to stay out of the healthcare business completely

Revenant said...

Abortion-on-demand carries the implicit assumption that [...] the most trivial right of the mother always trumps the greaterst right,the right to life, of the unborn

I don't think most people consider control over their own bodies and what's allowed to happen to them to be their "most trivial right". Most people, I suspect, would consider it to be among their most important rights. Certainly if I was forced to choose between control of my own body and, for example, the right to criticize the government, I'd keep the former right and abandon the latter.

But in any case there is nothing shocking or unconservative about the idea of people valuing their own rights over rights that other people think are more important. The Founding Fathers, for example, violated quite a few Englishmen's rights to life in order to protect "lesser" rights like speech, liberty, et al. They called it "the Revolutionary War".

Thought experiment: if I'll die unless I receive a medical treatment I cannot afford, do I have the right to make you pay for it? If you answer "no" then you acknowledge that the right to life does not always trump all other considerations. If you answer "yes" then you just signed up for communism. Which is the conservative position?

And seven -- "don't talk about Schiavo" means "don't talk about Schiavo", not "make one last claim and then hope nobody ELSE talks about Schiavo". :)

Freder Frederson said...

That's false to some degree. I've met people who are here today because their mothers couldn't get an abortion 40 years ago.

Any mother who told their child, "if abortions were legal when I was pregnant with you, you wouldn't be here," probably should have had an abortion or at least given the child up for adoption. Your friends must have some cold-ass bitch mothers.

Jim said...

Freder,

I don't know of a more recent poll, but it seems Ann Landers found in hers that 70% of her respondents favored retroactive abortion of their offspring!

www.stats.uwo.ca/faculty/bellhouse/stat353annlanders.pdf

Whether or not they'd lie to their unwanted kids is another question.

no1special said...

i luv u guys,,,mudding the waters with semantics and verbage.... a women's body is her own...do i think abortion is the answer- it's about 5 options down, but still an option. Potential is not actual to quote ayn rand..but whatever, don't really care for her either, but if u want an abortion have it...u don't- then don't... but not having a choice, makes it somebody else's choice...which means the government- that can't b a good thing...not sure what i just said, but i stand by it. *and Revenant, not that u agree with me but thanx for calling 7 on the Shiavo thing.

me said...

"Meanwhile, back in reality, you don't have to be wealthy to travel to another state. Even if you live in the deep South or midwest you can get to a "blue state" for two or three hundred bucks at most, and generally for a lot less than that. . . There is no excuse for a woman of childbearing age not being able to get her hands on what amounts to a few days' salary at McDonalds."

Umm...I'll grant that most of the time, a woman could get from a red state to a blue state for around $300. However, lets say we have a woman who works at McDonalds. She finds out she's pregnant and decides to get an abortion. She lives in Nashville, TN, post-Roe. The closest place where abortion is legal will likely be Illinois or Florida (maybe), so she likely has at least 5 hour drive (more in the case of FL) to wherever abortion clinics are located in those states. She will also have to stay at a hotel, maybe for two nights, in case of a 24 hour waiting period. So she has to pay let's say $300 for the abortion; around $300 for travel (hotel, gas); and miss a few days work for travel time and recovery -- so lets say the abortion costs $1000, including all that. If you think most McDonald's workers have $1000 laying around, you're crazy.
If abortion were available in Nashville, her expenses would be the cost of the abortion ($300 or so) and probably one missed day of work, i.e., half as much money.


"One messy question left would be states who have laws saying a fetus has the same rights as you or me from the moment of conception then making it illegal for women to travel outside the state for an abortion."

"Even assuming that the states could get away with passing a law like that, they can't prove that a woman broke it. So again the threat is nonexistant."

What do you mean they can't prove the woman broke such a law? There are already laws prohibiting anyone not a parent taking a minor across state lines for purposes of abortion. Isn't this the same type of thing? It seems pretty easy to prove to me. Our hypothetical woman is a resident of TN; she went to Illinois and had an abortion and then came back to TN. Are you saying the state couldn't prove she knew she was pregnant when she left TN (even though she already had an appointment at an abortion clinic)? Not getting your point here.

anna said...
This comment has been removed by a blog administrator.
anna said...

Whether or not the fetus's right to life trumps the mother's right to her own body depends on the question of when life begins. Maybe it begins at the point of conception, maybe it begins when a single fertilized egg cell starts multiplying into something more, maybe it begins when the brain develops, or at the point of ensoulment. Even assuming that all of these are 'life,' which of them do we want to protect? Do we want to protect a cell, a brain, a soul, a baby?

In my opinion, these are moral questions that people have very differing, but reasonable opinions on. The government and the courts should just stay out of trying to answer these questions and spend taxpayers' money on things that are actually debatable.