Fetal rights and the Supreme Court

Description: Constitutional rights accorded to a fetus, or a developing human being within a womb.

Significance: The Supreme Court ruled in Roe v. Wade (1973) that a fetus is a “potential life” and is not recognized as a person in the legal sense with Fourteenth Amendment rights. The court has, however, granted a number of protections to fetuses.

The legal notion that fetuses have rights results in part from the 1973 Supreme Court decision on abortion in Roe v. Wade. The majority in Roe held that “the unborn have never been recognized in the law as persons in the whole sense,” and that “the word 'person,' as used in the Fourteenth Amendment, does not include the unborn.”

The Texas statute at issue in Roe was typical of US state laws at the time. It prohibited abortion except when necessary to save the life of the pregnant woman. A pregnant woman seeking an abortion brought suit against the statute under the pseudonym Jane Roe (she was later identified as Norma McCorvey). The court declared the statute unconstitutional and legalized abortion nationwide for approximately the first six months of pregnancy, technically the point of fetal viability. The court reasoned that women’s freedom in the decision to terminate their own pregnancies was part of constitutionally protected privacy.

The Rationale

Justice Harry A. Blackmun specifically considered the state’s interest or duty in preserving fetal life (the basic justification put forth by Texas for its law) and the question of protecting the pregnant woman’s health. Blackmun first examined Texas’s claim that the fetus was a person “from the moment of conception” and therefore protected by the mandate of the Fourteenth Amendment. Blackmun rejected this argument, ruling instead that the fetus is not a person for purposes of the Fourteenth Amendment. He noted that all three branches of government have consistently treated personhood for legal purposes as beginning at birth. Blackmun stated that the court did not need to resolve the question of when life begins.

Regarding the state’s interest in protecting maternal health, Blackmun wrote that after the point of fetal viability, the state could proscribe abortion except when it was necessary to preserve “the life or health of the mother.” The court created the trimester approach, dividing pregnancy into three periods of approximately three months each. In the first trimester, the state cannot regulate abortion. In the second, it can regulate only to protect the mother’s health. In the third trimester, however, after the fetus becomes “viable,” the state may proscribe abortions unless necessary to save the woman’s life or health.

Later Opinions

The Court affirmed Roe in Planned Parenthood of Central Missouri v. Danforth (1976) and Akron v. Akron Center for Reproductive Health (1983). Only three years later, Roe was affirmed once again in Thornburgh v. American College of Obstetricians and Gynecologists (1986), and it was also upheld in Webster v. Reproductive Health Services (1989). In the 1990s, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) saw Roe affirmed yet again. Each of these cases involved, at least in part, some sort of parental or spousal notification prior to the performance of an abortion. The plurality decision in Casey struck down as unconstitutional a state law providing that no abortion could be performed on a married woman without a signed statement that she had notified her husband of her plan to undergo the abortion. The court gave the following explanation of why this notice requirement constituted an undue burden on the right to an abortion.

If a husband’s interest in the potential life of the child outweighs a wife’s liberty . . . perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the state could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking.

The court set aside the Roe trimester framework for legal abortions in Webster in 1989, although it retained the viability standard. After viability, when the fetus was judged to be capable of “meaningful life outside the mother’s womb,” state interference was judged to have both “logical and biological justifications.” In Webster, the court upheld a Missouri statute that contained numerous restrictions on abortion. In its preamble, the statute stated that life began at conception and that “unborn children have protectable rights in life, health and wellbeing.” Another provision of the statute required physicians to ascertain the viability of a fetus in excess of twenty weeks of gestational age before performing an abortion. Webster did not overturn Roe. A majority of the court held that the preamble had no operative legal effect and therefore did not conflict with Roe. Justice Sandra Day O’Connor argued that because of a four-week margin of error in determining gestational age, the fetus’s age might actually be twenty-four weeks, which falls in the third trimester. Regulation of third-trimester abortions was allowable under Roe; therefore, the viability test was not inconsistent with the 1973 ruling.

Nevertheless, both sides of the abortion controversy saw Webster as a ruling that might be used politically. Abortion foes saw the ruling as a sign that the court would allow state legislatures to pass more restrictive abortion statutes, and those favoring a woman’s right to choose abortion saw the ruling as a possible threat to this right.

The dawn of the twenty-first century brought new challenges to US abortion law, as the Supreme Court continued to hear cases related to fetal rights. In the case of Stenberg v. Carhart (2000) the Supreme Court debated the constitutionality of a Nebraska law that outlawed partial-birth abortions, a procedure known as dilation and extraction (D&X). The court ruled, in a 5–4 decision, that the law was unconstitutional. However, in 2003, Congress passed the Partial-Birth Abortion Ban Act, signed by President George W. Bush, which outlawed the D&X procedure. The law was challenged but upheld by the court in the case of Gonzales v. Carhart. In 2016, in the case of Whole Woman's Health v. Hellerstedt, the Supreme Court struck down parts of a Texas law that were ruled as putting an "undue burden" on a woman seeking to get an abortion.

After the confirmation of new justices Neil Gorsuch in 2017 and Brett Kavanaugh in 2018 led to a conservative majority on the Supreme Court, commentators speculated about whether more state cases would be brought to the Supreme Court to challenge Roe and its interpretation of fetal rights. By May 2019, the Alabama House of Representatives and Senate had passed a bill then signed by the governor to ban abortions except in cases when the woman's life is in danger or there is a lethal fetal anomaly. At the same time, a handful of states had passed bills to ban abortions once a fetal heartbeat can be detected, typically with some exceptions.

In May 2022, Roe v. Wade returned to the national spotlight after a majority opinion draft written by Justice Samuel Alito related to the Dobbs v. Jackson Women's Health Organization case (which challenged the 2018 Gestational Age Act passed in Mississippi that largely bans abortions after fifteen weeks) was unintentionally leaked to the press. In the draft, Justice Alito strongly disagreed with the decision the Court reached on Roe v. Wade and considered the Court mistaken on the issue. After the document was leaked, many Americans interpreted that it was indicative of the Supreme Court's intention to overturn Roe v. Wade, and nationwide protests resulted. Shortly after the incident, Chief Justice John G. Roberts issued a statement that confirmed the authenticity of the leaked draft.

Then, in June of that year, the Supreme Court reached a decision on Dobbs v. Jackson Women's Health Organization that upheld Mississippi's Gestational Age Act and in turn overruled Roe v. Wade and the constitutional right to an abortion that Roe v. Wade established in 1973. The decision's opinion, which was written by Justice Alito, argued that the Constitution does not provide a right to abortion and that the decision reached in Roe v. Wade was based on incorrect reasoning and thus wrong from the start. By overturning the constitutional right to an abortion, the Supreme Court returned the decision of the legality of abortion to the state level.

Bibliography

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