The buying and selling of fetal body parts—a longtime problem highlighted by the July release of an undercover video of the medical Director of Planned Parenthood—has ignited a political uproar. Since Planned Parenthood is the country’s largest abortion provider, the trade in infant body parts could be widespread. At least eight states have investigations ongoing. Four congressional committees are undertaking their own investigations, and one of those—the House Judiciary Committee—first held hearings on September 9.
Amidst all the ongoing state and federal government investigations, however, most have lost sight of the ultimate cause of this trade in aborted infants’ organs: the Supreme Court and its decisions in Roe v. Wade and Doe v. Bolton. The Planned Parenthood videos are only the latest in a long series of scandals involving fetal organs that were the direct result of the court’s decisions in Roe and Doe.
The Supreme Court created this market. By striking down the abortion laws of all 50 states in 1973, the court swept all abortion laws off the books. (As Harvard Law Professor Laurence Tribe put it, the court “impos[ed] limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.”) The court loudly sent the message that the unborn child is not a human being and that the bodies of aborted infants were not deceased human beings, just “fetal tissue.” So, the court eliminated fetal bodies from the respect and legal protection otherwise afforded the bodies of dead children.
The problem was quickly apparent. Just ten weeks after the Roe and Doe decisions, the Washington Post published an article noting that the National Institutes of Health was considering the ethics of experimentation on live unborn children.
A law journal in 1974 attributed the problem to Roe: “In the wake of Roe v. Wade, one highly controversial issue has been the practice of experimentation on aborted fetuses.” Roe sparked a national commission on fetal tissue experimentation in 1974.
What to do with aborted infant body parts after Roe was up for grabs. The court created a complete legal vacuum but cannot regulate or otherwise fill it. So, the burden fell to the states to fill the legal vacuum with new laws. Within a year, several states, including California, Illinois, Indiana, Louisiana, Nebraska, South Dakota, and Utah, had passed bans on fetal experimentation. Other states enacted “fetal disposal” laws. But the federal courts have stymied these efforts repeatedly, relying on Roe. The justices have had several opportunities to do something but have turned a blind eye.
In 1983, the court itself struck down Akron, Ohio’s fetal “disposition” statute over the dissent of Justices O’Connor, White and Rehnquist that the statute was sufficiently clear. The court mouthed the empty words that Akron had “a legitimate interest in proper disposal of fetal remains” but sent a clear signal that such laws should be subject to strict judicial review.
A year later, the problem came back when a case from California reached the court involving 16,000 aborted infants from a “defunct pathology laboratory” that were turned over to the Los Angeles County District Attorney. Then-Justice Rehnquist said that it was a case for the state courts to decide.
In the 1990s, the federal courts continued to block state attempts to fill the legal vacuum. A federal court in 1990 held that Illinois’s prohibition on fetal experimentation wasn’t clear enough in its wording and that the prohibition violated the right to abortion created in Roe. (The Illinois statute prohibited selling or experimenting on an unborn infant and specifically exempted “the performance of in vitro fertilization.”) The Supreme Court refused to hear the case.
In 1990 a federal appeals court upheld Minnesota’s “fetal disposal” law. But a federal court struck down Utah’s law in 1995, and the Supreme Court again refused to hear the case.
In 2000, the Ninth Circuit struck down Arizona’s prohibition on fetal experimentation, with one judge noting, with approval, that 23 states had attempted to “regulate or prohibit experimentation on fetuses and fetal tissues,” but many “have been declared unconstitutional.” He also declared that the state had no legitimate interest in limiting “aborted fetal tissue research” and impugned Arizona’s motive in prohibiting such experimentation as designed merely to “curb access to abortion.” This is the latest example of the heavy-handed scrutiny by federal judges that the Supreme Court has refused to correct for four decades.
So the Supreme Court has had at least five opportunities—in cases from Akron, Ohio, California, Illinois, Pennsylvania, and Utah—to look into this “fetal organ trade” since Roe and allow the states fill the legal vacuum, but the court has repeatedly failed to do so.
Whatever Congress or the states might do in coming months, expect the federal courts to interfere and block new regulations under the authority of Roe. Hopefully, the justices will eventually understand that the responsibility lies with them to fix their 42-year-old mess. The court caused it, the court neglects it, the court perpetuates it—one more example of why Roe v. Wade needs to be overturned and the issue returned to the people.
Clarke D. Forsythe is Senior Counsel at Americans United for Life (AUL) and the author of Abuse of Discretion: The Inside Story of Roe v. Wade.
