Fetal rights Summary

  • Last updated on November 11, 2022

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[case]Roe v. Wade[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 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.

The Rationale

Justice Harry A. BlackmunBlackmun, Harry A. 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[case]Planned Parenthood of Central Missouri v. Danforth[Planned Parenthood of Central Missouri v. Danforth] (1976), Akron v. Akron Center for Reproductive Health[case]Akron v. Akron Center for Reproductive Health[Akron v. Akron Center for Reproductive Health] (1983), Thornburgh v. American College of Obstetricians and Gynecologists[case]Thornburgh v. American College of Obstetricians and Gynecologists[Thornburgh v. American College of Obstetricians and Gynecologists] (1986), Webster v. Reproductive Health Services[case]Webster v. Reproductive Health Services[Webster v. Reproductive Health Services] (1989), and Planned Parenthood of Southeastern Pennsylvania v. Casey[case]Planned Parenthood of Southeastern Pennsylvania v. Casey[Planned Parenthood of Southeastern Pennsylvania v. Casey] (1992). 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.

Further Reading
  • 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

Gender issues

Planned Parenthood of Southeastern Pennsylvania v. Casey

Roe v. Wade

Webster v. Reproductive Health Services

Categories: History