ARTICLE

THE SUPREME COURT’S USE OF THE TERM “POTENTIAL

LIFE”: VERBAL ENGINEERING AND THE ABORTION
HOLOCAUST

Martin Wishnatsky†
We have made a covenant with death, and with hell are we at
agreement . . . for we have made lies our refuge, and under
falsehood have we hid ourselves.
—Isaiah 28:15—

INTRODUCTION
One mark of a holocaust is the dehumanization of its victims. The
dehumanization of the Jews preceded their destruction in Germany.1
Justification for the mass slaughter of a defined class of people often begins
with the use of language that diminishes their humanity.2 The abortion
holocaust is no different. Ever present in Supreme Court cases, beginning
with Roe v. Wade3 in 1973, is the dehumanizing term “potential life.” This
Article traces the tenacious use of the concept that the unborn are not
actual human beings through every Supreme Court case in which it appears
from 1973 to the present.

† Submissions Editor, LIBERTY UNIVERSITY LAW REVIEW; J.D. Candidate (2012),

Liberty University School of Law; Ph.D. (1975), Harvard University; A.B. (1966), Harvard
College. I thank my classmates, James Ahn and Cindy Shin, for their assistance in
researching Supreme Court case law, and Dr. Mark Blais, Professor of Biology and PreMed
Advisor at Liberty University, for his inspiring work on the existence of “life with potential”
from the moment of conception.
1. See generally WILLIAM BRENNAN, THE ABORTION HOLOCAUST: TODAY’S FINAL
SOLUTION (1983).
2. See generally WILLIAM BRENNAN, DEHUMANIZING THE VULNERABLE: WHEN WORD
GAMES TAKE LIVES (2000).
3. Roe v. Wade, 410 U.S. 113 (1973).
328 LIBERTY UNIVERSITY LAW REVIEW [Vol. 6:327

OCTOBER TERM 19724

“In assessing the State’s interest,” wrote Justice Harry Blackmun in Roe v.
Wade, “recognition may be given to the less rigid claim that as long as at
least potential life is involved, the State may assert interests beyond the
protection of the pregnant woman alone.”5 Thus began a long and
continuous use of an essentially fictitious concept in Supreme Court case
law. Unwilling to fully embrace the disturbing reality that abortion ends a
human life, the Supreme Court invented the concept of “potential life” to
describe the child in the womb. The Court employed that term, with some
variations, eight times in Roe—seven times in the majority opinion, and
once in Justice Stewart’s concurrence.6
In the companion case of Doe v. Bolton,7 the majority used the term
once.8 Justice Douglas, concurring, employed “potential life” twice, both
times in a passage from an article by Justice Tom Clark.9 The article
attempted to blur the bright line of conception as the beginning of actual
life.
To say that life is present at conception is to give recognition to
the potential, rather than the actual. The unfertilized egg has life,
and if fertilized, it takes on human proportions. But the law deals
in reality, not obscurity—the known rather than the unknown.
When sperm meets egg life may eventually form, but quite often
it does not. The law does not deal in speculation. The

4. The Supreme Court’s annual term begins on the first Monday in October and runs
through the following June. Thus, Roe v. Wade, decided January 22, 1973, fell in the middle
of the 1972 term.
5. Roe, 410 U.S. at 150 (emphasis added).
6. See id. at 154 (employing the term “protecting potential life”); id. at 156 (recognizing
“the State’s interests in protecting health and potential life”); id. at 159 (“[A]t some point in
time another interest . . . that of potential human life, becomes significantly involved.”); id. at
162 (“[T]he fetus, at most, represents only the potentiality of life.”); id. at 162 (noting that the
State “has still another important and legitimate interest in protecting the potentiality of
human life”) (emphasis added); id. at 163 (“With respect to the State’s important and
legitimate interest in potential life, the ‘compelling’ point is at viability.”); id. at 164 (noting
the State’s “interest in the potentiality of human life”); id. at 170 (“The asserted state interests
are protection of the health and safety of the pregnant woman, and protection of the
potential future human life within her.”) (Stewart, J., concurring).
7. Doe v. Bolton, 410 U.S. 179 (1973).
8. Id. at 197 (using the phrase “the protection of potential life”).
9. Justice Tom C. Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2
LOY. L.A. L. REV. 1 (1969).
2012] “POTENTIAL LIFE” 329

phenomenon of life takes time to develop, and until it is actually

present, it cannot be destroyed. Its interruption prior to
formation would hardly be homicide. . . . This would not be the
case if the fetus constituted human life.10
Finally, Justice Byron White, one of two dissenters in Roe and Doe, twice
employed the phrase “life or potential life,”11 which indicates that even those
who opposed the invented abortion right at least partially acceded to its
dehumanizing terminology.

OCTOBER TERM 1975

In Connecticut v. Menillo,12 explaining that states could still outlaw self-
induced or non-physician abortions, the Court referred to “the potential life
of the fetus.”13 Three days before the bicentennial of the Declaration of
Independence, the Court, in Planned Parenthood of Central Missouri v.
Danforth,14 deepened the abortion right—outlawing, inter alia, spousal
consent laws—and quoted Roe’s term “potential human life.”15 Justice
White, in a separate opinion, used the term three times. He first used the
phrase “life or potential life” that he employed in his Roe dissent.16 Then,
however, though opposing constitutional recognition of an abortion right,
he nonetheless employed Justice Blackmun’s misleading terminology,
referring to “the State’s interest in the potential life of the fetus,”17 and “a
mother’s decision to cut off a potential human life by abortion.”18 Thus, the
insidious phrase crept into the vocabulary of the dissenters.

10. Doe, 410 U.S. at 217-18 (Douglas, J., concurring) (quoting Clark, supra note 9, at 9-
10).
11. Id. at 221-22 (White, J., dissenting).
12. Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam).
13. Id. at 11.
14. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
15. Id. at 61 (quoting Roe v. Wade, 410 U.S. 113, 159 (1973)).
16. Id. at 92 (White, J., concurring in part and dissenting in part).
17. Id. at 93.
18. Id.
330 LIBERTY UNIVERSITY LAW REVIEW [Vol. 6:327

OCTOBER TERM 1976

In Sendak v. Arnold,19 the Court summarily affirmed the
unconstitutionality of a first-trimester health regulation.20 Justice White,
dissenting, quoted a passage from Menillo referring to the State’s “interest
in the potential life of the fetus.”21 In Carey v. Population Services
International,22 the Court, extending the dubious constitutional right to
contraception to the unmarried, used “potential life” four times: twice
quoting directly from Roe,23 then arguing that contraception did not
implicate “the interest in protecting potential life,”24 and finally referring to
the State’s interests “in protection of potential life.”25 Eleven days after
Carey, the Court concluded the term with a trio of abortion-subsidy cases,
sprinkling “potential life” throughout.
In Beal v. Doe,26 the Court decided that states do not have to pay for
Medicaid abortions, citing Roe for the “important and legitimate interest . . .
in protecting the potentiality of human life.”27 In his dissent, Justice
Thurgood Marshall referred to “potential life” three times and “potential
human life” once.28 In Maher v. Roe,29 holding that states that subsidize
childbirth do not also have to pay for abortions, the Court referred to “the
potential life of the fetus” three times,30 and it also noted that “the pregnant
woman carries a potential human being”31 and that abortion terminates “a
potential human life.”32 Justice Brennan, dissenting, referred to the
“potential life of the fetus” and “the State’s important and legitimate interest

19. Sendak v. Arnold, 429 U.S. 968 (1976).

20. Id. at 968.
21. Id. at 970 (White, J., dissenting) (quoting Connecticut v. Menillo, 423 U.S. 9, 11
(1975) (per curiam)).
22. Carey v. Population Servs. Int’l, 431 U.S. 678 (1977).
23. Id. at 686, 690 (1977) (using the phrase “protecting potential life”) (quoting Roe v.
Wade, 410 U.S. 113, 154 (1973)).
24. Id. at 690.
25. Id. at 694.
26. Beal v. Doe, 432 U.S. 438 (1977).
27. Id. at 445-46 (quoting Roe, 410 U.S. at 162).
28. Id. at 457, 460-61 (Marshall, J., dissenting).
29. Maher v. Roe, 432 U.S. 464 (1977).
30. Id. at 472, 478.
31. Id. at 478.
32. Id. at 480.
2012] “POTENTIAL LIFE” 331

in potential life.”33 Completing the trilogy, the Court, in Poelker v. Doe,34

refused to force the City of St. Louis to subsidize abortions at city-controlled
hospitals, quoting Roe on the State’s “important and legitimate interest in
potential life.”35

OCTOBER TERM 1978

In Williams v. Zbaraz,36 Illinois argued that refusal to stay a lower-court
injunction “will result in irreparable injury to the interest of the people of
Illinois in protecting potential human life.”37 Despite speaking the Court’s
language, Illinois did not prevail. Justice Stevens, acknowledging the “State’s
interest in potential life,” denied the motion.38
Next, in Colautti v. Franklin,39 the Court found a viability-determination
provision in the Pennsylvania Abortion Control Act unconstitutional on
vagueness grounds.40 Justice Blackmun, for the majority, referred three
times to “the potential life of the fetus.”41 Discussing viability, Justice White,
in dissent, noted the difference between “potential” and “actual.” “Potential
ability,” he wrote, “is not actual ability. It is ability existing in possibility, not
in actuality.”42 Justice White referred to Pennsylvania’s viability regulation
as “an attempt to protect a period of potential life.”43

OCTOBER TERM 1979

On the last day of the term, the Court, in Harris v. McRae,44 rejected
challenges to the Hyde Amendment45 restrictions on Medicaid abortion

33. Id. at 489-90 (Brennan, J., dissenting).

34. Poelker v. Doe, 432 U.S. 519 (1977).
35. Id. at 524 (quoting Roe v. Wade, 410 U.S. 113, 163 (1973)).
36. Williams v. Zbaraz, 442 U.S. 1309 (1979).
37. Id. at 1313.
38. Id.
39. Colautti v. Franklin, 439 U.S. 379 (1979).
40. Id. at 401.
41. Id. at 386 & n.7.
42. Id. at 402 (White, J., dissenting) (quoting WEBSTER’S NEW INTERNATIONAL
DICTIONARY (2d ed. 1958) (internal punctuation omitted)).
43. Id. at 406.
44. Harris v. McRae, 448 U.S. 297 (1980).
332 LIBERTY UNIVERSITY LAW REVIEW [Vol. 6:327

funding and also held that the states were not required to make such
payments.46 After referring to “protecting potential human life” and
“protecting the potential life of the fetus,”47 the Court noted the “state
interest in protecting potential life” and “protecting potential life after fetal
viability.”48 As if that were not enough, Justice Stewart, for the majority,
then riffed the phrase six more times in three short paragraphs.49 He
performed this dizzying display of virtuosity within a mere two pages of the
United States Reports, the judicial equivalent of a Tommy Emmanuel guitar
solo.
Justice White, equal to the occasion, came back with five mentions in
four paragraphs—not as awesome, but still notable. Eschewing variety, he
rapped out four straight mentions of “the governmental interest in potential
life,” concluding with “its legitimate interest in a potential life.”50 Like
Justice Stewart, Justice White kept it all within a mere two pages of the
Reports—an impressive accomplishment for someone who believed that Roe
was wrongly decided. Next up, Justice Brennan offered only one solitary
mention of “the State’s interest in protecting the potential life of the fetus.”51
The next candidate was Justice Marshall—always willing to swing a bat for
abortion. He spread four mentions over seven pages, a far more relaxed
pace than either Justice Stewart or Justice White. Derisively referring to the
Hyde Amendment as “purportedly designed to safeguard ‘the legitimate
governmental objective of protecting potential life,’”52 he repeated the
phrase a second time,53 segued into “the asserted state interest in protecting

45. The Hyde Amendment, with narrow exceptions, such as life of the mother, rape and
incest, or severe physical health damage, prohibited Medicaid reimbursement for abortion
using federal funds. Id. at 302-03.
46. Id. at 311.
47. Id. at 313.
48. Id. at 316.
49. See id. at 324 (noting the “legitimate interest in protecting the potential life of the
fetus”); id. (noting the “important and legitimate interest in protecting the potentiality of
human life”) (quoting Roe v. Wade, 410 U.S. 113, 162 (1973)); id. at 324-25 (noting “the
legitimate state interest in protecting potential life by encouraging childbirth”) (citations
omitted); id. at 325 (noting “the legitimate governmental objective of protecting potential
life”); id. (noting “the legitimate congressional interest in protecting potential life”); id.
(“[N]o other procedure involves the purposeful termination of a potential life.”).
50. Id. at 327-28 (White, J., concurring).
51. Id. at 329 (Brennan, J., dissenting).
52. Id. at 340 (Marshall, J., dissenting).
53. Id. at 341.
2012] “POTENTIAL LIFE” 333

potential life,”54 and closed with a repeat of the opening phrase.55 But, lo, the
Harris symphony was not over. Justice Stevens, the final soloist, added a
dissenting passage garnished with five invocations of “potential life” within
three pages.56 All told, the Justices used “potential life” twenty-five times in
Harris.

OCTOBER TERM 1980

In H.L. v. Matheson,57 the Court held that the plaintiff inadequately
pleaded a challenge to the Utah parental notification statute for minors. The
majority quoted Harris on “the legitimate governmental objective of
protecting potential life.”58 Justice Marshall, in dissent, mentioned the
State’s interest in protecting “the potential life of the fetus.”59

OCTOBER TERM 1982

On the last day of the term, the Court resolved two cases challenging
state abortion regulations. In the first, City of Akron v. Akron Center for
Reproductive Health,60 Justice Powell quoted Roe on the “important and
legitimate interest in protecting the potentiality of human life” and added a
comment on “protecting the potential life of the unborn child.”61 He also
dropped “potential human life” twice in a footnote.62 In dissent, Justice
O’Connor criticized the trimester approach as “completely unworkable,”
and argued that the State’s interest “in protecting the potentiality of human
life” extended throughout pregnancy.63 To make her point, she used the
phrase “potential life,” or an equivalent, six times in one paragraph, vividly
illustrating how this unscientific mantra had come to dominate the Court’s
discourse.

54. Id. at 344.

55. Id. at 346.
56. Id. at 350-52 (Stevens, J., dissenting).
57. H.L. v. Matheson, 450 U.S. 398 (1981).
58. Id. at 413.
59. Id. at 435 (Marshall, J., dissenting).
60. City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983).
61. Id. at 428 (quoting Roe v. Wade, 410 U.S. 113, 162 (1973)).
62. Id. at 420 n.1.
63. Id. at 454, 459 (O’Connor, J., dissenting).
334 LIBERTY UNIVERSITY LAW REVIEW [Vol. 6:327

The state interest in potential human life is likewise extant

throughout pregnancy. In Roe, the Court held that although the
State had an important and legitimate interest in protecting
potential life, that interest could not become compelling until the
point at which the fetus was viable. The difficulty with this
analysis is clear: potential life is no less potential in the first weeks
of pregnancy than it is at viability or afterward. At any stage in
pregnancy, there is the potential for human life. . . . The choice of
viability as the point at which the state interest in potential life
becomes compelling is no less arbitrary than choosing any point
before viability or any point afterward. Accordingly, I believe
that the State’s interest in protecting potential human life exists
throughout the pregnancy.64
Adopting the Court’s agnosticism on when human life begins,65 Justice
O’Connor and all the other Justices, whether for abortion or against,
employed the same “potential life” refrain over and over, refusing to
acknowledge the obvious: life begins at conception. In addition to the
previous mentions, Justice O’Connor used “potential life” or variations of
the phrase six more times.66 In total, the Justices used “potential life” or an
equivalent seventeen times in Akron, demonstrating its centrality as the
Court’s dominant meme for life in the womb.
In Planned Parenthood Association v. Ashcroft,67 decided the same day as
Akron, the majority used the phrase “potentiality of human life” once.68
Justice Blackmun, in partial dissent, used the same phrase one time, and
“potential life” twice.69

OCTOBER TERM 1985

Thornburgh v. American College of Obstetricians and Gynecologists,70 a 5-
4 opinion, was the high water mark of the Court’s abortion absolutism.

64. Id. at 460-61.

65. Id. at 461 (quoting Roe, 410 U.S. at 159) (refusing to “resolve the difficult question of
when life begins”).
66. Id. at 453 n.1, 461 & n.8, 466, 474.
67. Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476
(1983).
68. Id. at 482.
69. Id. at 499-500 (Blackmun, J., concurring in part and dissenting in part).
70. Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986).
2012] “POTENTIAL LIFE” 335

With the addition of Justices Sandra Day O’Connor (1983), Antonin Scalia
(1986), and Anthony Kennedy (1988), the Court—with the original Roe
dissenters, Justices Rehnquist and White—would in the future have a
majority willing to grant the states more scope for regulation, though not
abolition, of abortion. The Thornburgh majority used the term “potential
life” once.71 Chief Justice Burger, dissenting, quoted Roe on “protecting the
potentiality of human life”72 and twice referred to “potential life.”73 Justice
White, in a powerful dissent, intimated that the Court’s use of “potential
life” was a deliberate misnomer. He discussed “the State’s countervailing
interest in protecting fetal life (or, as the Court would have it, ‘potential
human life,’). . . .”74 Justice White did use “potential human life” in a
footnote,75 but, more tellingly—dropping the word “potential”—employed
the term “fetal life” four times in a single paragraph in the same footnote.76
Justice O’Connor, also dissenting, used “potential human life” twice.77

OCTOBER TERM 1988

In Webster v. Reproductive Health Services,78 the Court almost
overturned Roe, but Chief Justice Rehnquist could not hold a majority
together to drop the threshold for scrutinizing state regulations from the
“compelling interest” test to a more relaxed “rational basis” test.79 Justice
O’Connor simply refused to go along.80 Nonetheless, Webster opened the
door to expanded state regulation. The opinion also set a new record for use
of “potential life” and its variants: twelve times in Chief Justice Rehnquist’s
main opinion,81 seven times in Justice O’Connor’s partial concurrence,82

71. Id. at 759.

72. Id. at 784 (Burger, C.J., dissenting) (quoting Roe v. Wade, 410 U.S. 113, 162 (1973)).
73. Id. at 783 n.*, 784.
74. Id. at 794 (White, J., dissenting) (citation omitted).
75. Id. at 795 n.4.
76. Id.
77. Id. at 828, 831 (O’Connor, J., dissenting).
78. Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).
79. For an account of the internal politics of Webster, see BERNARD SCHWARTZ, THE
UNPUBLISHED OPINIONS OF THE REHNQUIST COURT 260-338 (1996).
80. Id. at 336-38.
81. Webster, 492 U.S. at 515-16 & n.14, 519-21.
82. Id. at 528, 530-31 (O’Connor, J., concurring in part and concurring in the
judgment).
336 LIBERTY UNIVERSITY LAW REVIEW [Vol. 6:327

eighteen times by Justice Blackmun,83 and another seven by Justice Stevens,

including five on a single page84—for a grand total of forty-four. Though the
Court was moving toward greater accommodation of state regulation, the
“potential life” mantra still ruled.
Justice Stevens disagreed with the majority’s position that the state’s
interest in “potential life” begins at conception, not viability. Because the
“freshly fertilized egg” cannot experience “physical pain or mental anguish,”
he argued, “a State has no greater secular interest in protecting the potential
life of an embryo that is still ‘seed’ than in protecting the potential life of a
sperm or an unfertilized ovum.”85 To Justice Stevens, the early human being
is a mere “seed,” unworthy of legal protection, and no different from a
sperm or an unfertilized egg.86 In another unusual phrase, he stated that
“the Constitution allows the use of contraceptive procedures to prevent
potential life from developing into full personhood.”87 Thus, in his mind,
“potential life” is another name for non-personhood.88

OCTOBER TERM 1991

In the two years following Webster, Justices Brennan and Marshall, two
unwavering abortion stalwarts, retired.89 President George H. W. Bush

83. Id. at 541, 544, 545 n.6, 546, 547 n.7, 549, 552-54, 555 & n.10, 556 (Blackmun, J.,
concurring in part and dissenting in part).
84. Id. at 562, 569 (Stevens, J., concurring in part and dissenting in part).
85. Id. at 569.
86. “It is hard not to be dumbfounded at a statement . . . giving support to the idea that
there is no essential difference between a sperm and an embryo—a position that is ludicrous
on scientific grounds.” Christopher Wolfe, Public Morality and the Modern Supreme Court,
45 AM. J. JURIS. 65, 77 n.41 (2000).
87. Webster, 492 U.S. at 569 (Stevens, J., concurring in part and dissenting in part).
88. The withdrawal of legal protection from a class of human beings is the definition of
a holocaust. “In essence, the ‘legal nonperson’ designation serves as a device for defining the
victims out of the human race and beyond the protection of the law where they can
be . . . annihilated with impunity.” BRENNAN, supra note 1, at 95. “Even the Nazis started
their extermination of Jews by first depriving them of all legal status . . . .” HANNAH ARENDT,
THE ORIGINS OF TOTALITARIANISM 296 (Harcourt Books 1973) (1951).
89. Justive Brennan retired in 1990, and Justice Marshall retired in 1991. See Timeline of
the Justices, SUP. CT. HIST. SOC’Y, http://www.supremecourthistory.org/history-of-the-court
(last visited Feb. 17, 2012).
2012] “POTENTIAL LIFE” 337

nominated David Souter and Clarence Thomas to replace them.90

Expectations were high that Roe would fall.91 In Planned Parenthood of
Southeastern Pennsylvania v. Casey,92 Justice Thomas was faithful to life, but
Justices O’Connor, Kennedy, and Souter—all Republican nominees—
banded together to preserve Roe. In Casey, the Court used the term
“potential life” or its equivalent forty-nine times, more than in any other
case before or since. The plurality itself, whose cohesion guaranteed Roe’s
continuing vitality, used “potential life” and its variations twenty-three
times in its seventy-page opinion,93 including five times on a single page.94
Upholding Roe, while granting states more scope for regulation, the
plurality recognized that “potential life” is not the exclusive term for a child
in the womb; it also employed the term “life of the unborn” five times
without the modifier “potential.”95 Some deem these procedures, said the
plurality, “nothing short of an act of violence against innocent human life;
and, depending on one’s beliefs, [with consequences] for the life or
potential life that is aborted.”96 The plurality, continuing to read the unborn
out of the human race, at least recognized that, to some, the unborn child is
a life, not merely a potential life. Another time the plurality mentioned “life
or potential life of the unborn”97 maintaining the equivocation, and in
another place referred similarly to “protecting fetal life or potential life.”98
Speaking of contraception, they used the unusual phrase “postconception
potential life.”99 The correct use of “potential life” is to describe a

90. Justice Souter replaced Justice Brennan. See David H. Souter, OYEZ.ORG,
http://www.oyez.org/justices/david_h_souter (last visited Feb. 17, 2012). Justice Thomas
replaced Justice Marshall. See Clarence Thomas, OYEZ.ORG, http://www.oyez.org/justices/
clarence_thomas (last visited Feb. 17, 2012).
91. “With Thomas on board, a perceived sixth conservative vote, many inside and
outside the court feared that [overruling Roe] was inevitable.” JAN CRAWFORD GREENBURG,
SUPREME CONFLICT 137 (2007).
92. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
93. Id. at 852, 859, 870-73, 875-79, 882, 886, 898.
94. Id. at 876.
95. Id. at 869, 873, 877, 883, 885. Justice Scalia noted the inconsistency between
speaking of the unborn in more humane terms while still forbidding any state to prohibit
their destruction. Id. at 992 (Scalia, J., concurring in the judgment in part and dissenting in
part).
96. Id. at 852 (majority opinion).
97. Id. at 870.
98. Id. at 876.
99. Id. at 859.
338 LIBERTY UNIVERSITY LAW REVIEW [Vol. 6:327

spermatozoa or an oocyte. Both are alive, yet neither is a human life.100 The
phrase “postconception potential life” is an oxymoron. Anything
postconception is actual life, not potential.101 But in the Supreme Court
killing fields, truth is also a casualty.
Justice Stevens used “potential life” or the equivalent nine times102 and
added a couple of ghoulish touches of his own. “[M]any find third-trimester
abortions,” he said, “when the fetus is approaching personhood particularly
offensive.”103 For Justice Stevens, legal recognition of life begins at birth, not
before. He also found that “the State’s interest in potential human life”
could encompass population growth—“believing society would benefit
from the services of additional productive citizens”—or that the State might
benefit from allowing people to be born to find “the occasional Mozart or
Curie.”104 Does not the child in the womb have a personal interest in being
born, regardless of his utility to the “State”? Under the Roe regime, life is no
longer a gift from God, an unalienable right.105 Instead, the “State” decides
who shall live and who shall die, depending on the “interests” of the
moment, as weighed by the Supreme Court.
Justice Blackmun, not a laggard in pro-abortion fervor, weighed in with
eight uses of “potential life.”106 Justice Rehnquist, though taking the side of

100. See MARTIN H. JOHNSON & BARRY J. EVERITT, ESSENTIAL REPRODUCTION 283 (6th ed.
2007) (referring to the “fertilizable life” of the oocyte); Dr. J.C. Willke, Conception
Physiology, LIFE ISSUES INSTITUTE, http://www.lifeissues.org/abortifacients/conceptphys.html
(last visited Feb. 17, 2012) (“People often use the phrase ‘potential life.’ Well, here we have
potential life. It is millions of eager sperm seeking one ovum.”).
101. “[T]here is no such thing as a fetus’s ‘potential life.’ Any fetus in the womb either is
actually alive or was actually alive and is now dead. If an obstetrician ever told a woman that
her unborn child was ‘potentially alive,’ she’d be looking for a new obstetrician.” Catherine
W. Short, Essay Responding to Nadine Strossen’s Reproducing Women’s Rights: All Over
Again: Recycling Wrongs: All Over Again, 32 VT. L. REV. 633, 634 (2008); see also Hamilton v.
Scott, No. 1100192, 2012 WL 517459, at *14 & n.18 (Ala. Feb. 17, 2012) (“[A] new and
unique human being is formed at the moment of conception, when two cells incapable of
independent life, merge to form a single, individual human entity.”).
102. Casey, 505 U.S. at 914, 915 & n.3, 916, 918 (Stevens, J., concurring in part and
dissenting in part).
103. Id. at 915 (emphasis added).
104. Id.
105. “We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these, are Life . . . .”
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
106. Casey, 505 U.S. at 929-30, 932-34 (Blackmun, J., concurring in part, concurring in
the judgment in part, and dissenting in part).
2012] “POTENTIAL LIFE” 339

life, nonetheless used “potential life” five times.107 Justice Scalia used
“potentiality of human life” twice, “potential human life” once, and
“potentially human” once, but only to refute these concepts.108 Breaking free
of the shackles of “potentiality,” he boldly used the term “unborn human
life.”109 Attacking the Court’s pretense of “reasoned judgment,” he directly
challenged the legitimacy of the term “potential life.”
But “reasoned judgment” does not begin by begging the
question, as Roe and subsequent cases unquestionably did by
assuming that what the State is protecting is the mere
“potentiality of human life.” The whole argument of abortion
opponents is that what the Court calls the fetus and what others
call the unborn child is a human life. Thus, whatever answer Roe
came up with after conducting its “balancing” is bound to be
wrong, unless it is correct that the human fetus is in some critical
sense merely potentially human.110
Justice Scalia, unfortunately, did not take the argument further: “There is of
course no way to determine that as a legal matter,” he stated, “it is in fact a
value judgment.”111 He punctured the Court’s pretense, but only to say that
recognition of human life is a political question for the legislature. Having
demonstrated that the term “potential life” is a device to devalue life, he was
unwilling to take the further step of asserting that all human life inherently
qualifies for legal protection.112

107. Id. at 946, 949, 952, 974 (Rehnquist, C.J., concurring in the judgment in part and
dissenting in part).
108. Id. at 982, 992 (Scalia, J., concurring in the judgment in part and dissenting in part).
109. Id. at 989.
110. Id. at 982 (citations omitted).
111. Id.
112. In Webster, the author submitted an amicus brief arguing that the Fourteenth
Amendment, by its very nature, cannot authorize a holocaust. See Brief of Martin
Wishnatsky, Amicus Curiae, reprinted in 5 ROY M. MERSKY & GARY R. HARTMAN, A
DOCUMENTARY HISTORY OF THE LEGAL ASPECTS OF ABORTION IN THE UNITED STATES: WEBSTER
V. REPRODUCTIVE HEALTH SERVICES 189-97 (1990) (arguing for “a presumption of personhood
in any question touching the Fourteenth Amendment, because the purpose of that
amendment is to extend personhood to those previously considered non-persons”).
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OCTOBER TERM 1992

In Bray v. Alexandria Women’s Health Clinic,113 Justice Stevens assumed
that pro-lifers who risk arrest to rescue babies from abortion express “the
legitimate and nondiscriminatory goal of saving potential life.”114 Very
noble, I suppose, to go to jail for “potential life.”

OCTOBER TERM 1996

In Washington v. Glucksberg,115 an assisted suicide case that asked the
Court to bootstrap Roe’s reasoning into end-of-life decisions, Justice Souter
drew an analogy to the “strength of [the] State’s interest in potential life.”116
“Like the decision to commit suicide,” he wrote, “the decision to abort
potential life can be made irresponsibly and under the influence of others,
and yet the Court has held in the abortion cases that physicians are fit
assistants.”117 Are senior citizens also mere “potential life”?

OCTOBER TERM 1999

In Hill v. Colorado,118 a challenge to restrictions on sidewalk counselors
who wished to speak with women arriving for abortion appointments,
Justice Kennedy, in dissent, quoted from Casey the phrase “the life or
potential life that is aborted.”119
In Stenberg v. Carhart,120 after citing Casey on the “potentiality of human
life,”121 the Court, acknowledging in muted tones the horror of partial-birth
abortion, still called the half-born child “potential human life.”
“Considering the fact,” wrote Justice Breyer, “that those procedures seek to
terminate a potential human life, our discussion may seem clinically cold or
callous to some, perhaps horrifying to others.”122 Taking a deep breath
before endorsing abortion in the birth canal, the Court even admitted that

113. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).
114. Id. at 323 (Stevens, J., dissenting).
115. Washington v. Glucksberg, 521 U.S. 702 (1997).
116. Id. at 772 (Souter, J., concurring in the judgment) (citing Casey, 505 U.S. at 869).
117. Id. at 778.
118. Hill v. Colorado, 530 U.S. 703 (2000).
119. Id. at 791 (Kennedy, J., dissenting) (quoting Casey, 505 U.S. at 852).
120. Stenberg v. Carhart, 530 U.S. 914 (2000).
121. Id. at 921 (citing Casey, 505 U.S. at 879).
122. Id. at 923.
2012] “POTENTIAL LIFE” 341

for millions “life begins at conception and consequently that an abortion is

akin to causing the death of an innocent child[.]”123 Endorsing conversion
of the maternity ward into death row, the majority referred yet another
three times to the doomed full-term child as merely “the potentiality of
human life.”124 Seven Justices wrote separately in Stenberg, three in
concurrence125 and four in dissent.126
Justice Kennedy chose language of true respect, reciting the only mention
in the United States Reports of “human life and its potential.” “The political
processes of the State,” he wrote, “are not to be foreclosed from enacting
laws to promote the life of the unborn and to ensure respect for all human
life and its potential.”127 Following this wonderful sentence, he twice,
quoting Casey, reverted back to “potential life.”128 Abortion ends, wrote
Justice Thomas, “depending on one’s view, human life or potential human
life.”129 Is biological reality a matter of opinion? He also noted from Casey
the State’s “legitimate,” “profound,” and “substantial interest in potential
life,” using the term seven more times130 before ending with a quotation of
the Casey plurality’s phrase “life or potential life of the unborn.”131 Partial-
birth abortion, he also said, “dehumanizes the fetus and trivializes human
life.”132 All told, the Stenberg Justices used “potential life” or a comparable
term nineteen times. Justice Kennedy charted new territory with his
description: “human life and its potential,” intimating that the unborn are
not “potential life,” but “life with potential.”133

123. Id. at 920.

124. Id. at 930.
125. Id. at 946-47 (Stevens, J., concurring); id. at 947-51 (O’Connor, J., concurring); id. at
951-52 (Ginsburg, J., concurring).
126. Id. at 952 (Rehnquist, J., dissenting); id. at 953-56 (Scalia, J., dissenting); id. at 956-
79 (Kennedy, J., dissenting); id. at 980-1020 (Thomas, J., dissenting).
127. Id. at 957 (Kennedy, J., dissenting) (emphasis added).
128. Id. at 961 (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833, 876 (1992)).
129. Id. at 980 (Thomas, J., dissenting).
130. Id. at 981, 1005-06.
131. Id. at 1011 (quoting Casey, 505 U.S. at 870).
132. Id. at 1006.
133. See Charles I. Lugosi, Conforming to the Rule of Law: When Person and Human
Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence, 4 GEO. J.L. &
PUB. POL’Y 361, 430 (2006) (stating that Justice Blackmun “was wrong when he stated that a
live human being was merely ‘potential life,’ rather than a life with potential”); see also 122
CONG. REC. 20,410 (1976) (“Once conception has occurred, a new and unique genetic
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OCTOBER TERM 2006

Gonzales v. Carhart,134 the Court’s most recent major abortion case,
addressed partial-birth abortion, this time upholding a state ban. Justice
Kennedy’s majority opinion, quoting Casey, twice mentioned “the State’s
interest in potential life.”135 Justice Ginsburg, in dissent, mentioned it
once.136 But more significant than fewer mentions of “potential life” was
Justice Kennedy’s adoption of new terminology to describe life in the
womb. Instead of “potential life,” he used the phrase “the life of the fetus
that may become a child.”137 Is this an improvement? The infant in the
womb is still subject to a dehumanizing medical term—considered less than
a child. Yet somehow the departure from “potential life” with its heavy
freight of association with abortion-on-demand seems a step in the right
direction. But Justice Kennedy went further, noting that the State has a
legitimate purpose “to promote respect for life, including life of the
unborn.”138 He spoke of the “stage of the unborn child’s development,”139
and, quoting Casey, “profound respect for the life of the unborn.”140 He
twice referred to “fetal life”141 and also quoted a nurse’s description of the
puncturing of a child’s skull that used the term “baby” eight times.142
From “potential life,” the Court has progressed to “unborn life,” which is
a significant step. Later, Justice Kennedy referred to “the fast-developing
brain of [an] unborn child, a child assuming the human form.”143 A child
halfway out of the womb has certainly long since assumed “the human
form.” The Court’s acknowledgement of the humanity of the unborn child
is a labored form of intellectual birth, a “rough beast” slouching towards

package has been created, not a potential human being, but a human being with potential.”)
(statement of Rep. Henry Hyde).
134. Gonzales v. Carhart, 550 U.S. 124 (2007).
135. Id. at 146 (quoting Casey, 505 U.S. at 881-83); id. at 157 (quoting Casey, 505 U.S. at
873).
136. See id. at 186 (Ginsburg, J., dissenting) (quoting Casey, 505 U.S. at 877).
137. Id. at 158.
138. Id.
139. Id. at 134.
140. Id. at 146 (quoting Casey, 505 U.S. at 877).
141. Id. at 134, 145.
142. Id. at 138-39.
143. Id. at 160.
2012] “POTENTIAL LIFE” 343

Bethlehem to be born.144 Justice Ginsburg, in dissent, complained about the

majority’s new nomenclature. “A fetus is described as an ‘unborn child,’”
she objected, “and as a ‘baby.’”145 She has reason for concern. Once the
“potential life” misnomer is discarded, the Court’s abortion jurisprudence
may go with it.

CONCLUSION
From Roe v. Wade to the present, the Supreme Court Justices have used
“potential life” terminology 216 times.146 By decades, the distribution is as
follows:
Uses of “Potential Life”
in Supreme Court cases

Number
Decade of Uses

1970 – 1979 66
1980 – 1989 75
1990 – 1999 72
2000 – 2009 3

The Court’s willingness to accept some legislative limits on the practice

of abortion goes hand in hand with adoption of terminology recognizing
the humanity of the unborn child. Perhaps by baby steps, as Gonzales v.
Carhart indicates, the Court will eventually abandon its holocaust past and
the dehumanizing and scientifically untenable terminology of “potential
life.”

144. See William Butler Yeats, The Second Coming, reprinted in THE COLLECTED POEMS OF
W.B. YEATS 158-59 (2000).
145. Carhart, 550 U.S. at 187 (Ginsburg, J., dissenting).
146. See Appendix A for a year-by-year breakdown.
344 LIBERTY UNIVERSITY LAW REVIEW [Vol. 6:327

APPENDIX A
Uses of “Potential Life”
In Supreme Court cases

October Number Uses per

Term Of Uses Decade

1972 13
1973 0
1974 0
1975 5
1976 18
1977 0
1978 5
1979 25 66
1980 2
1981 0
1982 21
1983 0
1984 0
1985 8
1986 0
1987 0
1988 44
1989 0 75
1990 0
1991 49
1992 1
1993 0
1994 0
1995 0
1996 2
1997 0
1998 0
1999 20 72
2000 0
2001 0
2002 0
2012] “POTENTIAL LIFE” 345

2003 0
2004 0
2005 0
2006 3
2007 0
2008 0
2009 0 3

Total 216