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Ohio State Law Journal


abortion, medical research, roe v. wade, viability, unborn rights, heartbeat


This Article does not revisit the moral, legal, and constitutional critiques of the Court’s position [in Roe v. Wade]. The voluminous commentaries on the flaws in the Court’s opinions speak for themselves. Rather, this Article seeks to ground an expansion of the protection available to the unborn on the implicit principles underlying current Supreme Court doctrine, refined and modified by recent medical research on nature of pregnancy and human pre-natal development. It will argue that the State’s compelling interest in the protection of what the Court has called “potential life” ripens at an earlier point in time than what the Court has termed “viability.” That earlier point in time is the detection of cardiac activity in the fetus, evidencing the overwhelming likelihood that the fetus will reach term and live birth, absent an external lethal intervention.

As such, the Article will, for the most part, eschew terms such as "unborn baby" or "unborn child," and deal rather with what the Court has characterized as the State's interest in preserving "potential life," that is, the possibility that the unborn human individual can be protected until birth and become a "born baby" or a "born child." In the main, we shall use "fetus" as referring to the human offspring developing during pregnancy from the moment of conception including the embryonic stage of development. We know that, genetically, that fetus is an individual organism of the species Homo sapiens, and that we can define that organism from fertilization until live birth as an "unborn human individual." It is the protection of that form of human life in which the State has a vital interest.