What Is the State’s Interest in Protecting the Fetus?

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Culture & Conversation Abortion

What Is the State’s Interest in Protecting the Fetus?

Rewire News Group Staff

Episode 3 of the five-part Rewire News Group podcast We'll Hear Arguments introduces a new player in the Supreme Court case Roe v. Wade: the state.

For more Boom! Lawyered episodes, check out our archives here.

Welcome back to We’ll Hear Arguments, the podcast dedicated to breaking down the most pivotal Supreme Court cases with equal parts expertise and wit.

The first season is dedicated to that case all abortion advocates put in their notebooks with little hearts around it: Roe v. Wade, which legalized abortion nationwide in 1973. Episodes 1 and 2 were about defining whether a fetus is a person (it isn’t) and determining if a pregnant person’s life means more than a fetus (it does.)

Episode 3 introduces us to a new player: the state.

Sex. Abortion. Parenthood. Power.

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You might be thinking: Well, I understand what a pregnant person has at stake in their right to abortion, but last time I checked they’re not also carrying around the state in their womb. You might even be asking yourself: Hey, what gives a state the right to regulate what kind of medicine someone can access? That’s colossally fucked up! And you’d be right!

These are the same things Sarah Weddington, the lawyer representing “Jane Roe,” wondered.

“The state has alleged, and its only alleged interest in this statute, is the interest in protecting the life of the unborn,” she told the Court. “However, the state has not been able to point to any authority of any nature whatsoever that would demonstrate that this statute was in fact adopted for that purpose.”

Now, these days, the balancing test that courts use—between the state’s investment in the “life” of the fetus, and the private interest of the pregnant person to do whatever they want with their own body—is kind of a given.

When Roe v. Wade was argued though, the courts hadn’t yet figured that out. This idea of state power versus individual power might seem a bit wonkier than what we’ve unpacked in previous episodes, but fear not—hosts Jessica Mason Pieklo and Imani Gandy are here to make it all as simple as the knowledge that abortion isn’t murder.

As Jess explains:

“Governments pass laws to address matters of public concern. Think of matters of public concern as anything having to do with running a community. Traffic laws are matters of public concern. Regulating businesses to make sure people don’t get ripped off—that’s a public concern.”

Enter Imani:

“And sometimes those laws impact individual constitutional rights, and when that happens it’s the court’s role to figure out if the government went too far in trying to address that public concern.”

The Court is then left with two questions: What is the matter of public concern here? And does the law at issue address it? In Roe, the matter of public concern is the balancing of the rights of the fetus and the rights of the pregnant person, Now, does a statute criminalizing abortion address that concern? You’ll have to listen to find out.

And we’ll be back to discuss our penultimate episode next, where Jess and Imani discuss Texas’ argument that a pregnant person does not have the right to sue in a case concerning the rights of pregnant people. It’s gonna be a gas!

Transcript