Those who feel betrayed by the recent decision of the Supreme Court to abandon the reasoning in Roe v. Wade (1973) and its extension Casey v. Planned Parenthood (1992) have a point. American women have relied on these decisions for many decades and felt, as time went on, that the precedents these two cases represented could be relied upon in perpetuity. Reliance alone is a justification for the judicial restraint expected of the Supreme Court of the United States.

American women, however, are not the only ones who have been affected by the principle of reliance relative to Roe and Casey. Elective abortions represent billions of dollars to businesses, educational in- stitutions, government employees, and third-party providers who profit from the use of elective abor- tion fetal tissue. The following are some of those entities:

1. The flavoring chemical industry uses the HEK-293 cell line from an elective abortion to test taste receptors that allow the food industry to create artificial tastes in processed foods. Senomyx is an in- dustry leader and has contracted with many large food processors who then add the tested chemicals to their food products as taste enhancers. (Pepsi, Coca-Cola, Frito-Lay, Nestle, Starbucks, Nabisco, etc.)
2. Big Pharma players such as Merck, GlaxoSmithKline, Amgen, Pfizer, Genetech, and others use elective abortion tissue cells for vaccine research and manufacture. Neocutis uses this tissue for beauty serums. Advanced Bioscience Resources sells fetal tissue from elective abortions and charges large sums for “collection, storage, processing and shipping” in light of federal law that prohibits profit from these sales. Some universities provide and use elective abortion fetal tissue as do abortion providers.
3. The National Institutes of Health, the Center for Disease Control, and the National Institute of Al- lergy and Infectious Disease give research grants for research that includes elective abortion tissue as long as the mother gives her consent. The following is from the NIH Grants Policy Statement:

“Human fetal tissue is defined as tissue or cells obtained from a dead human embryo or fetus after a spontaneous or induced abortion or stillbirth. . .The statute specifically prohibits any person from knowingly acquiring, receiving, or transferring any human fetal tissue for valuable consideration. The term “valuable consideration” is a concept similar to profit and does not include reasonable payment for costs associated with the collection, processing, preservation, storage, quality control, or trans- portation of these tissues. . .When obtaining primary human fetal tissue for research purposes, NIH ex- pects grantees and contractors to maintain appropriate documentation, such as an attestation from the health care provider or a third party supplier, that informed consent was obtained at the time of tissue collection.”

If a researcher working for the NIH contributes to a commercially viable and novel drug using fetal tis- sue from elective abortions, that employee may receive royalties in the millions of dollars over the life-time of the patent. With so much money involved in a commercial system that has relied on Roe and Casey, businesses could now be negatively impacted by a potential loss of available elective abortion tissue should many states restrict the procedure.

We now find Moral Law facing a well-funded Abortion/Business/Education/Government Complex, similar to the Military/Industrial Complex President Eisenhower was so worried about. Conflicts of in- terest abound. Rather than safe, legal, but rare – elective abortion might be promoted for financial gain rather than “health care.” Sorting through the motives of all involved in this issue is impossible. Taking all interests into account, including moral interests, how might states react? Some suggestions:

1. Elective, not spontaneous, abortion falls under the bundle of our law called Moral Law. Positive Law (constitutions, statutes, rules) reflect what Moral Law commands. While seen as “medical waste,” and often incinerated with other medical waste, an aborted fetus should be treated with respect and dig- nity as an ensouled human being. The mother should be given the option of a proper burial or crema- tion for the fetus.
2. Fetal tissue important to legitimate medical research can be found in the spontaneously aborted or the stillborn, in umbilical cord tissue, cord blood, placenta, amniotic fluid, etc, but not from elective abortion, as that would necessarily encourage the procedure simply to obtain the tissue. Tissue from animals should be used for research before fetal tissue from elective abortions.
3. The prohibition against anyone profiting from elective abortions should be vigorously enforced and anyone receiving royalties or patent protections from commercially viable products developed with elective abortion tissue should be revealed to the public. The products developed should also be re- vealed. This would allow American citizens the ability to choose in line with their moral values.

Science will continue to reveal secrets of fetal life as time goes on. Positive Law should reflect these advancements and every effort should be made to see an unborn ensouled human being as worth pro- tecting. Charities that help women who wish to protect their pregnancies should be encouraged and supported.

Finally, it might be important for us to remember that one of the primary functions of the Supreme Court of the United States is to protect process. The Court has no authority to create law or novel con- cepts of implied rights emanating from penumbras of Constitutional theory. Rights not stated specifi- cally in the US Constitution are retained by the states or the People. Amendments IX and X, US Consti- tution.

Once fully informed, each American citizen can decide what state laws, that one might rely on, should be enacted and enforced regarding this difficult issue. One of the privileges of American citizenship is to reside where one feels most morally comfortable with a particular state’s law.