In Planned Parenthood of Missouri v. Danforth and Planned Parenthood of Southeastern Pennsylvania v. Casey, the United States Supreme Court respectively held that it is unconstitutional to require a mother to seek consent from or to notify the father before she has an abortion. Fathers thus lost consent and notification rights. However, courts have recently begun to recognize a property interest in human embryos. This legal trend—resulting from the widespread use of assisted reproductive technology—could allow fathers to claim that the abortion of their unborn children violates the Due Process Clause, which protects people from being deprived of “life, liberty, or property, without due process of law.”
A conflict thus arises between Casey’s holding and the due process rights fathers are entitled to in the context of abortion. This Note reviews cases that have found property and property-like interests in embryos, as well as due process jurisprudence regarding property interests. This Note argues that since embryos have been deemed property, fathers have grounds for challenging abortions as unconstitutional deprivations of their property interest without “due process of law.” Yet, since due process rights for fathers in the abortion context would essentially guarantee the very thing the Casey decision denied fathers, this Note argues that the Supreme Court should reexamine its holding in Casey to balance the two conflicting Fourteenth Amendment rights.
Anthony Jose Sirven,
Undue Process: A Father's Proprietary Interest in an Embryo and Its Clash with Casey,
68 Fla. L. Rev.
Available at: http://scholarship.law.ufl.edu/flr/vol68/iss5/7