Constitutional rights accorded to a fetus, or a developing human being within a womb.
The legal notion that fetuses have rights results in part from the 1973 Supreme Court decision on abortion in Roe v. Wade
The Texas statute at issue in Roe was typical of U.S. 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.
Justice Harry A. Blackmun
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.
The Court affirmed Roe in Planned Parenthood of Central Missouri v. Danforth 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.
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.
Mathieu, Deborah. Preventing Prenatal Harm: Should the State Intervene? 2d ed. Washington, D.C.: Georgetown University Press, 1996. Morgan, Lynn, ed. Fetal Subjects, Feminist Positions. Philadelphia: University of Pennsylvania Press, 1999. Samuels, Suzanne. Fetal Rights, Women’s Rights. Madison: University of Wisconsin Press, 1995.
Family and children
Planned Parenthood of Southeastern Pennsylvania v. Casey
Roe v. Wade
Webster v. Reproductive Health Services