WASHINGTON -- As the nation approaches the 30th anniversary of Roe vs. Wade on Wednesday, the reasoning that the Supreme Court used to define a constitutional right to abortion is facing sharp and novel challenges.
With the growth of embryonic research, abortion opponents are finding more opportunities to upgrade the embryo's legal status. Lawmakers and regulators are already considering whether the human embryo and fetus deserve special legal protections in areas as diverse as patent protection and homicide law.
Activists hope that at the end of this road, abortion itself will fall. Although they have spent the last three decades pursuing laws to restrict or limit abortions, they now hope to strike at the core of the 1973 Supreme Court decision that said the unborn generally gain rights only upon birth and women may choose abortion without restriction during the first phases of pregnancy.
"In as many areas as we can, we want to put on the books that the embryo is a person," said Samuel B. Casey, executive director of the Christian Legal Society, a public interest group in Virginia whose clients include abortion opponents. "That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection -- even protection that would trump a woman's interest in terminating a pregnancy."
Jeffrey Bell, a Republican political strategist in Washington, said debate is refocusing on what matters most to antiabortion groups: the value of human life.
"Parental notification rules don't really prohibit anything. They don't ban the act of abortion," Bell said. "But a cloning ban -- this is saying that something should be illegal. And if taking [unborn] human life became illegal, that would be a breakthrough. Since Roe, no one has been able to do that."
In debates driven primarily by scientific and medical advances in embryo development, policymakers are being forced to confront questions about the embryo and fetus, drawing new energy and emotion to the debate over their status.
Last week, New Jersey Gov. James E. McGreevey announced that he would sign a bill endorsing the use of human embryos in stem cell research. In Washington, President Bush's bioethics panel debated the point at which a human embryo becomes an individual being. And in Nebraska, state Sen. Mike Foley filed a bill to allow wrongful death lawsuits involving the loss of an unborn child, an action he said was partly aimed at undermining the logic of Roe.
"We said specifically in our bill that we did not want to challenge Roe vs. Wade, and that it would not affect abortion in a legal sense," Foley said. "But philosophically, sure, these laws are a challenge.... If a state can put someone in jail for life because they took the life of an unborn child, then we're clearly saying there's something very valuable there."
In the landmark Roe vs. Wade decision, Justice Harry A. Blackmun said for the 7-2 majority that the court could not resolve "this most sensitive and difficult question" of when life begins.
"When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer," Blackmun wrote.
At the same time, Blackmun wrote, "the unborn have never been recognized in the law as persons in the whole sense."
Finding no legal status for the embryo, Blackmun concluded that a woman has a privacy right to terminate a pregnancy in its early phases. A later ruling said this period lasts until the fetus can live outside the womb, or about the 23rd week of development.
Once the fetus is viable, the state may claim a "legitimate interest" in protecting the unborn child by regulating or even banning abortion, Blackmun wrote.
Today, abortion rights advocates say their opponents are trying to undermine Blackmun's argument by equating "the unborn" with "people" in various areas of the law.
In Kentucky, lawmakers this month filed a bill to permit homicide charges when an unborn child is killed, though abortion doctors and other health-care providers would be exempted. The proposal, which is already in law in at least 27 states, defines "an unborn child" as a person.
Last year, the Bush administration allowed states to define embryos and fetuses as children eligible for medical coverage under Medicaid. And the administration defined embryos as "human subjects" when it directed a panel to study protections for people who participate in medical research.
Administration officials said those actions were unrelated to abortion, but abortion rights advocates said the intent was to upend Roe.
"If you can get enough of these bricks in place, draw enough examples from different parts of life and law where embryos are treated as babies, then how can the Supreme Court say they're not?" said R. Alta Charo, a professor of law and bioethics at the University of Wisconsin. "This is without question a conscious strategy." Much of the new thinking about embryos is a result of medical research.
When Blackmun wrote the Roe decision, developing life was always viewed in tandem with the mother's body. Then in 1978 came the first birth through in vitro fertilization -- the technique of merging egg and sperm in a laboratory dish to produce a human embryo.
"Now, for the first time, you had the opportunity to ask what is the moral and legal status of the embryo sitting in a lab dish, separate and independent from the woman's right to control her own destiny," Charo said. "You saw the embryo as a distinct thing."
With embryos separate from the woman's body, and often frozen for future use, courts were soon drawn into divorce disputes that asked whether embryos were more like property, subject to contract law, or like people, with their own rights and interests. The law is still unsettled.
More recently, scientists have raised the prospect that embryo stem cells could yield clues to curing disease. Now, the status of embryos is being weighed against the hopes of patients and the desire of scientists to pursue promising and possibly profitable research.
How should the law view "excess" embryos that are made by one couple, then given to a second set of hopeful parents? The Christian Legal Society is pushing for these embryos to be "adopted" under state law as children, rather than transferred like property. Separately, Congress is debating whether to ban the creation of embryos through cloning.
"All this gives you different sets of values to weigh against the embryo, other than a woman's ability to control her pregnancy," Charo said. "It's like those old balancing scales, where you never knew the weight of anything. You only knew whether it weighed more or less than what was on the other side of the scale."
The result has been that embryos are treated differently depending on their location, a condition far from the uniformly elevated status that abortion opponents want to assign to embryos. Under federal law, for example, a scientist with private funds may create and destroy embryos, or even mix in animal genes. Yet the U.S. Patent and Trademark Office gives embryos a special status, saying they are among the few things that cannot be patented.
Still, developments in embryo research have brought new energy to the antiabortion movement, said William Kristol, an anticloning activist and editor of the Weekly Standard, a conservative magazine.
"You've had these two armies in the abortion fight dug into their trenches, with very little movement," he said. "Now, suddenly there are a lot of skirmishes that might transform the broader battle."
For Kate Michelman, president of NARAL Pro-Choice America, an abortion rights group, nothing in the new debate overtakes Blackmun's basic observation that there is wide disagreement about when life begins.
And she says that although much of the debate involves embryos outside the woman's body and embryos used to create wanted children, abortion is still about unwanted pregnancies.
"The fact that we're learning more about the embryo and fetal development doesn't change the fundamental question of who gets to make decisions about a woman's body," she said.