Is a fetus a person? Court decisions prompt debate over fetal rights.
In cases like these, courts have faced the same basic question of law: Is a fetus a person under the relevant statute? And when, as in these cases, the courts have answered "yes," they have raised another legal issue: If a fetus is a person, is it vested with individual rights like anyone else? The answer is of great consequence in one of the bitterest legal controversies of this century. Not surprisingly, the battle lines over so-called fetal rights lie precisely along the battle lines over abortion.
"Part of the antichoice strategy has been to have the fetus identified as having rights in as many areas as possible so [abortion opponents] have an argument for overturning Roe v. Wade," said Lynn Paltrow, a veteran reproductive rights attorney in New York City.
Walter Weber, a Washington, D.C., lawyer with the American Center for Law and Justice, an antiabortion advocacy group, agrees wholeheartedly that increasing judicial recognition of fetal rights would ultimately spell the end of legal abortion. "If Roe v. Wade is overturned," Weber said, "it will be because [the Supreme Court] recognizes that there has been a whole category of human life that has been excluded from constitutional protection."
Abortion foes say the concept of fetal rights is nothing new, that fetuses have long been accorded certain rights under tort, criminal, and inheritance law. Abortion rights advocates contend that Roe v. Wade determined that fetuses do not have rights under the Constitution and say that recognizing these rights would pit mother against fetus in a number of legal contexts.
The idea of fetal personhood has gained wide acceptance in civil law. Roughly two-thirds of the states allow would-be parents to pursue lawsuits for the wrongful death of a viable fetus--one that can survive outside the mother's womb. Most courts have rejected these claims for nonviable fetuses (usually defined as those under 24 weeks of gestation). But at least three states--Missouri, South Dakota, and West Virginia--have changed course in the past two years. (Connor v. Monkem Co., 898 S.W.2d 89 (Mo. 1995); Wiersma v. Maple Leaf Farms, 543 N.W.2d 787 (S.D. 1996); Farley v. Sartin, 466 S.E.2d 522 (W. Va. 1995).)
In the South Dakota salmonella poisoning case, the state supreme court held last year that "the concept of viability is outmoded in tort law" because advances in medical technology have made it unclear how early a fetus might survive outside the womb. In a similar case, the West Virginia Supreme Court said the interests of justice required allowing a suit for the wrongful death of an 18- to 22-week-old fetus in a car collision with a tractor-trailer.
"In our judgment," the court said, "justice is denied when a tortfeasor is permitted to walk away with impunity because of the happenstance that the unborn child had not yet reached viability at the time of death. The societal and parental loss is egregious regardless of the state of fetal development. Our concern reflects the fundamental value determination of our society that life--old, young, and prospective--should not be wrongfully taken away."
Paltrow said these cases, although they recognize the fetus as a person under the states' wrongful death statutes, do not confer independent rights on the fetus. Wrongful death laws, she argued, are designed to compensate family members for their loss.
"Courts could not find another way to acknowledge the serious emotional loss to the mother. Tort lawyers couldn't get enough recognition for the mothers under claims for emotional distress or physical harm," Paltrow said.
Compensating families is "a perfectly permissible goal," said Sara Mandelbaum, senior staff attorney for the Women's Rights
Project of the American Civil Liberties Union (ACLU). "But allowing compensation for parents doesn't necessitate giving that status [of a person] to fetuses for all purposes in law."
Some states extend the concept of fetal personhood into the realm of criminal law.
"There is an increasing number of laws on the books that punish feticide," said Catherine Weiss, director of the ACLU's Reproductive Freedom Project. Some states have adopted new laws that define the act of killing a fetus as a crime--for instance, in drunk driving or assault cases. In other states, court rulings have interpreted the terms "person" and "human being" in existing homicide laws to include fetuses.
In the Oklahoma drunk driving case, a state appeals court rejected the driver's argument that she could not be prosecuted for manslaughter because the fetus, although near birth at the time of the crash, had not been born alive. The court abandoned the common law "born alive" rule and held that a viable fetus is a human being under the state's homicide law. (Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994).)
But state courts and legislatures have been reluctant to recognize a fetus as a human being when the person facing criminal prosecution is the mother-to-be. Courts in several states have blocked attempts to prosecute pregnant drug users under child abuse and neglect and drug delivery laws, holding that fetuses are not children or minors under those statutes. (See, e.g., Johnson v. State, 602 So. 2d 1288 (Fla. 1992); States Cannot Punish Pregnant Women for `Fetal Abuse,' Courts Say, TRIAL, May 1992, at 11.)
"The reason [the criminal prosecutions] failed was because the public health community came out and said, if you do this you will scare pregnant women away from traditional medicine," said Weiss. "You will put them in the position of lying to their medical providers--if they seek prenatal care at all--and then you can kiss their babies good-bye."
But abortion opponents support pursuing criminal charges when a pregnant woman endangers her fetus. "We believe that unborn children should not be excluded from protective laws because they are unborn," Weber said.
Last year, the South Carolina Supreme Court agreed, breaking rank with the other state high courts that had considered the issue. The divided court upheld the child neglect conviction of a woman who used crack cocaine during the third trimester of her pregnancy, then gave birth to a drug-exposed infant.
The court held, 3-2, that a viable fetus is a person under South Carolina's child abuse and endangerment laws. The majority cited previous decisions recognizing viable fetuses as persons. "[I]t would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse," the court said. (Whither v. State, No. 24468, 1996 WL 393164 (S.C. July 15, 1996).)
Dissenting Justice James Moore noted that the state legislature had failed to pass proposed bills addressing drug use during pregnancy 11 times. He added that the majority would ultimately be forced to revisit the issue and define what conduct can be prosecuted.
"Is a pregnant woman's failure to obtain prenatal care unlawful? Failure to take vitamins and eat properly? Failure to quit smoking or drinking?" Moore wrote. "The impact of today's decision is to render a pregnant woman potentially criminally liable for myriad acts which the legislature has not seen fit to criminalize. To ignore this `down-the-road' consequence in a case of this import is unrealistic."
Dorothy Roberts, a law professor at Rutgers University in Newark, New Jersey, said state lawmakers generally have heeded the advice of medical groups and other public health authorities and declined to pass laws defining drug use in pregnancy as child abuse or drug delivery to a minor. But legislators have begun considering civil laws that might have some bearing on future criminal prosecutions.
Roberts cited a measure enacted in Michigan last year that requires doctors, day care providers, and certain other professionals to notify child welfare authorities when they suspect that an infant has been exposed to drugs or alcohol. The authorities would then decide whether the circumstances call for a finding that the child has been abused or neglected, said Jim Murray, a legislative aide to state Rep. Michelle McManus (R), who sponsored the bill.
This year, New York lawmakers are considering a bill that would make it easier for social services to intervene when newborns test positive for drugs. Under the proposed law, a positive toxicology result would be prima facie evidence of child neglect, said Tracy Lloyd, director of legislation for the bill's sponsor, Sen. Dean Skelos (R). He added that the measure includes a statement that it is not to be used to pursue criminal charges.
Nevertheless, Roberts said laws like these "might encourage prosecutors to pursue the argument that [prenatal drug use] is child abuse."
Mother v. fetus
The criminal prosecutions of pregnant women have already compelled courts to referee conflicts between the women's rights and their fetuses' alleged right to be born healthy. Fetal rights opponents say these conflicts will surely arise in other contexts if courts continue to recognize fetuses as persons.
One recent case, for example, tested whether a pregnant drug user could be forced into drug treatment. The Wisconsin Supreme Court said no, holding that a lower court had erred in finding that the woman's fetus was a person under the state's child protection laws. (State ex rel. Angela M. W. v. Kruzicki, No. 95-2480-W, 1997 WL 195033 (Wis. Apr. 22, 1997).)
Observers see the potential for other difficult legal questions to emerge: Can a pregnant woman be forced to undergo a cesarean section to save the life of her viable fetus? Might pregnant employees face subtle, if not overt, job discrimination if their work involves risk to fetal health? And, ultimately, will the right to abortion be restricted?
Abortion rights proponents recognize that Roe v. Wade allowed for state intervention in pregnancy during the third trimester. But "the state's interest in regulating abortion after a certain stage is not the equivalent of saying the fetus has independent constitutional rights," said the ACLU's Mandelbaum.
But Weber compared the effort to establish fetal rights to arguments in favor of enhancing children's rights.
"Children's rights can be taken to extremes, with children suing their parents and the state intervening in every decision a parent makes," he said. "The solution to that is not to say children have no rights. The solution is to draw the line between the parents' liberty interests and the children's rights."
The same goes for fetuses, Weber said. "And that's going to be a field for lots of debate for years to come."