Inconsistent Treatment of the Unborn in the Law
A previous version of this article was published by the Charlotte Lozier Institute on January 28, 2017. It is reprinted here with permission.
Women in the United States have possessed a broad legal right to abortion since Roe v. Wade and its companion case were handed down by the Supreme Court in 1973. Outside of the abortion context, though, the unborn child possesses broad legal rights in American property, torts, and criminal law. The tension between the legal and moral status of the unborn in the abortion context compared to other areas of the law warrants closer examination as the nation watches the newly composed Supreme Court and wonders what the future of abortion law might hold.
The Roe Court held that it did not need to resolve “the difficult question of when life begins.” It acknowledged the state’s interest in protecting the health of women and in protecting “the potentiality of human life,” but did not think that the state could override a woman’s right to privacy by adopting any “one theory of life.” But outside of the abortion context, various states and the federal government have adopted one theory of life and apparently resolved the “difficult question.”
How can the legal status of the unborn child in the abortion context be squared with other areas of law in which the unborn child is commonly recognized as a person entitled to equal protection of the laws—and possessed of a right to life—from the moment of conception? The Court has not addressed this discrepancy.
The law’s inconsistent treatment of the unborn was recently highlighted once again by a decision from the Alabama Supreme Court, in which the court ruled that a physician was liable for a wrongful death lawsuit for her negligent treatment of a pregnant woman who later miscarried. The court was aided in this determination by the fact that Alabama’s homicide statute includes within the definition of “person” any “unborn child in utero at any stage of development, regardless of viability.”
These tensions existed even before Roe was decided, as some states’ decisions to legalize abortion between 1967 and 1973 clashed with the law’s treatment of the unborn in other areas. Since Roe, these tensions have only been exacerbated as the general trend in all areas of law outside of abortion has been towards greater, or at least continued, protection of the unborn child from the moment of conception.
In an article for the Notre Dame Law Review in 1971, then-editor of the review William J. Maledon reviewed the history of the unborn child in the law. Maledon, who went on to serve as a clerk for Justice William Brennan during the term that Roe was decided, wondered whether legal abortion could “possibly be reconciled with the many rights that the unborn child enjoys in the other areas of the law?”
Maledon reviewed common law cases going back to the 18th century that established that “the law of property recognizes the rights of the unborn child from the moment of conception for all purposes which affect the property rights of that child.” American courts followed this common-law precedent. For example, a child in the womb was treated the same as any older siblings when it came to inheritances. The law’s recognition of the congruence between the being who was in the womb and the being who later took into his possession property left to him by his deceased father, for example, could not be clearer.
The unborn child’s status for purposes of tort law developed later than for property law, but Maledon notes that by 1971, 29 states and Washington, D.C., allowed for recovery of damages for prenatal injuries. “A further development,” he writes, “in the law of torts has been the recognition of the right to maintain an action for the wrongful death of a child resulting from the prenatal injuries.”
The unborn child not only had property rights and protective rights from injury and wrongful death due to negligence in 1971, Maledon argues, but also had “a recognized legal right to life itself” even when the parents asserted a competing constitutional right.
In a case decided by the New Jersey Supreme Court in 1964, the court ruled that the state was justified in forcing a pregnant Jehovah’s Witness to receive blood transfusions that were necessary to save the life of her unborn child despite her religious objections to transfusions. The court recognized the state’s duty to give the unborn child equal protection of the law despite the mother’s assertion of a constitutional right not to receive the transfusion.
Maledon added that the unborn child’s “right to life is also evident from the fact that from the early common law to the present day the law has provided for the suspension of execution of pregnant women sentenced to death.” The International Covenant on Civil and Political Rights, to which the United States is a party, holds that the death sentence “shall not be carried out on a pregnant woman.” Under federal law, “A sentence of death shall not be carried out upon a woman while she is pregnant.” These laws recognize that it would be unjust to execute an unborn child for the crimes of his mother in which he had no part precisely because the unborn child is a human being with a right to life.
Perhaps the clearest example of abortion law’s anomalous and unjustifiable treatment of the unborn child is the federal Unborn Victims of Violence Act. This law, enacted in 2004, establishes that any individual who “causes the death of, or bodily injury … to, a child, who is in utero at the time the conduct takes place, is guilty” of a separate offense from any offense committed at the same time against the pregnant woman and is liable to the same penalty that would accompany an identical offense against any person.
Thirty-eight states echo federal law and recognize the unborn as persons in feticide prohibitions. Outside of the abortion context, any individual who takes the life of an unborn child can be prosecuted for homicide.
Such laws point out a glaring inconsistency in American law that has only widened since Roe: the moral status of the unborn child cannot change depending on who is doing the killing. If it is a human person who is killed in fetal homicide cases, it must also be a human person who is killed in abortion.
Making spurious distinctions between human beings and persons will not do. There are no human beings who are not persons, and all persons are entitled to equal protection under the law.
Proponents of abortion must admit that what is taking place in abortion is the killing of a human person—many of our laws already reflect this truth. Unable to deny that abortion ends a human life, supporters of abortion face the burden of arguing that abortion is the justified killing of a human person. Proving that it is just to end the life of an innocent child in the womb is a tall task, indeed.
Tim Bradley graduated from Notre Dame in 2016.