I'm reading the Wikipedia article on Roe v Wade. It says that:

Texas's lawyers had argued that total bans on abortion were justifiable because "life" began at the moment of conception, and therefore its governmental interest in protecting prenatal life applied to all pregnancies regardless of their stage.[6] The Court said that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional right to life.[5]

[5] - Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-9574-9.
[6] - Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, Minnesota: West Thomson/Reuters. OCLC 798148265.

but the page says, quoting the same sources, that:

But [the supreme court] also ruled that this right [to having an abortion] is not absolute, and must be balanced against the government's interests in protecting women's health and protecting prenatal life.

Setting aside the question of the pregnant woman's health, what is the basis the court found for the state having a valid interest in fostering pre-natal life when the subject/citizen carrying the fetus can legitimately decide not to develop it into a living person by giving birth?

Possibly related question: How low is the bar for "legitimate government interest"?

  • 1
    The wording the Court used was "its interest in the potentiality of human life", which would probably go back to the related question that there probably isn't a positive definition for determining legitimacy. You could probably either base the interest in the life having a priceless value, or more "rationally" the interest in potential tax revenue, or appeal to the mass and asking random persons in the street if fetus is worthy of protection (if you specify outside the abortion context).
    – xngtng
    Commented Dec 19, 2021 at 14:15
  • @xngtng: 1. "Life having a priceless value" - but the court seems to have determined the fetus isn't a being with that kind of constitutionally-protected life. 2. About the tax revenue potential - I'm not US law expert, but surely government is not allowed to mess around with people's and families' lives to engineer getting more taxes from them, right?
    – einpoklum
    Commented Dec 19, 2021 at 15:09
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    Re: taxes, that's exactly what governments do with their various family friendly tax credits for childcare, education, public health and family planning programs etc. A legitimate government interest is also not irrebuttable; the existence of an interest does not mean there is no bound to government actions, but the interest itself can still be legitimate.
    – xngtng
    Commented Dec 19, 2021 at 15:12
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    There is exactly one place where the court would have explained their basis, to the extent that they did so at all: in the opinion itself. Have you read it through? Commented Dec 19, 2021 at 18:11
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    The basis used by "the court" would be found in "the opinion of the court" - that's the one that comes first, and in this case was written by Blackmun. Commented Dec 19, 2021 at 18:51

1 Answer 1


In order for the government to have a legitimate interest in a thing, it must obtain that interest from and with the consent of the governed. The usual way the government obtains such interests is through either the Constitution, as adopted by the States (thus with consent), or through legislation enacted by the Congressional representatives elected by the people (thus with consent).

There is no such document describing this interest at the federal level, hence according to the tenth amendment, it is "reserved to the States". It then becomes a question of legitimate interest in each state, in accordance with State Constitutions and legislation. There are few, if any, such documents transferring such interest at the State level, so there is now a scramble to create them.

The error in Roe v. Wade was proclaiming that government could possibly have such an interest--when the opposing right is that of the right of an individual person to exist in identifiable form. Pre-natal life is not separately identifiable until it has become separated from and with the consent of the already identifiable person of which it is a part. Had that irrefutable fact been adopted in Roe, the question would remain closed. It will likely be a long time before that error is corrected.

I note that I am "in danger of being blocked from answering", because "some of my past answers have not been well received". Each has been grounded on the governing documents and case law, but may differ in conclusions from various opinions held by others.

  • 2
    1. Governments (almost) never obtain anything by consent of the governed. They can, at most, declare the governed have supposedly cosented. 2. Anyway, you're saying that the court identified such an interest with no legal basis; am I right? If so, please make that bottom-line clearer. Also, a what-if and what-they-should-have-done are perhaps interesting, but they don't help an answer to the question I asked.
    – einpoklum
    Commented May 28 at 10:36
  • Thus requires expensive Citation. It has none.
    – Trish
    Commented May 28 at 13:06
  • Citations: (1) The United States Supreme Court opinion in Roe v. Wade (2) The tenth Amendment to the United States Constitution. (3) (inferred: The Supreme Court opinion in Dobbs). I am drawing attention to the fact that there was nothing submitted to the Court in either case, nor cited in either opinion, which would support the claim that "the government has an interest in protecting pre-natal life", which was the originally posted question. Yes, I am answering the question by suggesting that there is no legal basis for that claim--just a personal opinion.
    – Jim Sawyer
    Commented Jun 2 at 21:24

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