Omar Bennett
The question of whether a fetus is a person under the federal constitution has been a topic of debate for decades, with significant implications for reproductive rights and abortion laws. In the United States, the landmark case of Roe v. Wade in 1973 established that a fetus is not a person under the Fourteenth Amendment, guaranteeing a constitutional right to abortion access. However, the recent overturning of Roe v. Wade has reignited discussions about fetal personhood and its potential impact on abortion legislation and pregnant individuals' autonomy. With the introduction of federal fetal personhood laws, such as the Life at Conception Act, the legal battle over reproductive rights enters a new frontier, as advocates and opponents debate the rights and protections that should be afforded to fetuses.
| Characteristics | Values |
|---|---|
| Fetus considered a person under federal constitution | No |
| Fetus considered a person under state constitutions | Yes, in some states |
| Fetus considered a person under international law | No, but some countries grant rights to unborn children |
| Fetus considered a person under European law | No, but two EU member states (Hungary and Slovakia) grant the fetus the constitutional right to life |
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Roe v. Wade
The case was brought by a pregnant single woman, Norma McCorvey, under the alias Jane Roe, and her lawyers, Linda Coffee and Sarah Weddington. They challenged the Texas law that prohibited abortions except when necessary to save the life of the mother. The District Attorney for Dallas County, Henry Wade, was the other named party.
The Supreme Court ruled 7-2 that the right to privacy, protected by the Fourteenth Amendment, includes the right to decide whether to continue a pregnancy. Justice Harry Blackmun wrote in his opinion that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn". This established a constitutional right to abortion access before 'viability', or the point at which a fetus can survive outside the womb, which is usually between 24 and 28 weeks after conception.
The Roe decision made state abortion bans unconstitutional, and abortion care became legal, more accessible, and safer across the country. The ruling held that no government interest was compelling enough to ban abortion before viability. After viability, the state could ban abortion but must include exceptions to protect the life and health of the mother.
The Roe v. Wade decision was overturned in 2022 by the Supreme Court case Dobbs v. Jackson Women's Health Organization, which ruled that there is no federal constitutional right to abortion. This decision has led to a wave of new abortion restrictions and bans across the country.
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Fetal personhood laws
The concept of fetal personhood designates human fetuses as entities with legal rights. In the United States, the debate around fetal personhood has significant implications for reproductive rights and abortion access.
In the landmark 1973 case of Roe v. Wade, lawyers representing the state of Texas argued that a fetus is a person entitled to protections under the Fourteenth Amendment, including the right to life. However, the U.S. Supreme Court, in its ruling, disagreed, stating that "the word 'person' as used in the Fourteenth Amendment does not include the unborn." This decision established a constitutional right to abortion access, holding that personhood could not be granted to a fetus before "viability," typically around 24 weeks of pregnancy when a fetus can survive outside the womb.
Nearly five decades later, in 2022, Roe v. Wade was overturned, and the debate around fetal personhood has intensified. A federal fetal personhood law, the Life at Conception Act, was introduced in both chambers of Congress. This proposed legislation seeks to extend fetuses and embryos a constitutional "right to life" from the moment of fertilization. The Act has gained support from cosponsors in the U.S. House of Representatives.
Currently, nearly half of the states in the U.S. have laws that employ fetal personhood language, and this number is expected to grow. While the enforcement of these laws may vary depending on state-level political dynamics, the recognition of fetal rights and personhood is a significant shift in the legal landscape, with potential far-reaching consequences for reproductive rights and personal autonomy.
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Fourteenth Amendment
The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. It addresses citizenship rights and equal protection under the law at all levels of government. The Fourteenth Amendment was a response to issues affecting freed slaves following the American Civil War.
The Fourteenth Amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions, such as Roe v. Wade (1973). In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." Justice Harry Blackmun responded that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." He concluded that if the fetus were considered a person, "the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."
The Supreme Court held that personhood could not be granted to a fetus before "viability," the point around 24 weeks of pregnancy when a fetus can survive outside the womb, thus establishing a constitutional right to abortion access. However, in 2022, Roe v. Wade was overturned, and Justice Samuel Alito declared that Roe was "egregiously wrong from the start."
The debate surrounding fetal personhood continues, with critics arguing that the state cannot bestow legal rights onto a fetus without infringing on the rights of the pregnant person. Fetal personhood laws could also impact the use of in vitro fertilization (IVF) and contraception access. On the other hand, supporters of fetal personhood argue that the state may not violate the "life" of the fetus without due process of law.
While there is currently no constitutional text explicitly holding unborn children to be "persons", the recognition of fetal personhood could have significant implications for reproductive rights and policies in the United States.
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Reproductive rights
The concept of fetal personhood has significant implications for reproductive rights, particularly in the context of abortion access and maternal healthcare. The debate centres on whether a fetus should be legally recognised as a person, thereby granting it constitutional rights, including the right to life.
In the United States, the Supreme Court's landmark decision in Roe v. Wade in 1973 established a constitutional right to abortion access. The Court held that personhood could not be granted to a fetus before "viability", which is typically around 24 weeks of pregnancy. This ruling was overturned in 2022, with Justice Samuel Alito declaring that Roe was "egregiously wrong from the start".
Following the overturning of Roe v. Wade, the battle over reproductive rights has entered a new frontier, with the introduction of fetal personhood laws. The Life at Conception Act, for example, aims to extend fetuses and embryos a constitutional "right to life" from the moment of fertilization. While these laws may face legal challenges, they could potentially restrict abortion access and impact the reproductive rights of pregnant individuals.
If a fetus is legally considered a person, it could have far-reaching consequences. Child endangerment laws could be applied, potentially restricting the behaviours and actions of pregnant people, such as their dietary choices or medical treatments. It could also lead to criminal prosecution for those who self-induce abortions or experience miscarriages.
Internationally, the recognition of fetal rights varies. The American Convention on Human Rights is the only modern international treaty specifically addressing fetal rights, declaring the fetal right to life from conception. However, most international human rights charters reject the notion that human rights should be granted from conception or before birth. Under European law, the fetus is generally regarded as an in utero part of the mother, with its rights held by the mother.
The debate surrounding fetal personhood and reproductive rights is complex and multifaceted, involving legal, ethical, and moral considerations. It remains a highly contested issue, with ongoing legal challenges and varying interpretations across jurisdictions.
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Viability
The viability of a foetus is a key factor in determining its legal status as a person under the federal constitution. In the United States, the Supreme Court has played a significant role in shaping the legal understanding of foetal personhood. In the landmark case of Roe v. Wade (1973), the Court ruled that a foetus is not a person under the Fourteenth Amendment, establishing a constitutional right to abortion access. This ruling was based on the understanding that personhood could not be granted to a foetus before "viability", which is typically around 24 weeks of pregnancy when a foetus can survive outside the womb.
However, the concept of viability is not static and has evolved over time with advancements in medical technology. For example, with the development of neonatal intensive care units and improved respiratory support, the threshold of viability has shifted earlier in pregnancy. This has important implications for the legal status of the foetus and the rights that may be afforded to it.
The debate surrounding foetal personhood and viability is complex and multifaceted. Some argue that recognising foetal personhood would grant the foetus a constitutional "right to life", which could potentially restrict a woman's right to bodily autonomy and reproductive choices. On the other hand, proponents of foetal personhood laws contend that the foetus should be afforded legal protection from the moment of conception or at a specific stage of development.
The viability of a foetus also intersects with other legal and ethical considerations. For instance, in the context of inheritance, some civil codes and legal systems recognise the rights of an unborn child. Additionally, international human rights instruments, such as the Declaration of the Rights of the Child, emphasise the need for legal protection for children before and after birth, although the specific interpretation and implementation vary across jurisdictions.
While the federal constitution does not explicitly define the legal status of a foetus, the ongoing debate surrounding viability and personhood highlights the dynamic nature of this issue. As medical capabilities continue to advance, the legal and ethical discussions surrounding foetal viability will likely remain at the forefront of reproductive rights discourse.
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Frequently asked questions
No, a fetus is not a person under the federal constitution. In Roe v. Wade, it was ruled that the use of "person" in the Constitution always assumed a born person, and therefore the 14th Amendment's mention of a person did not confer constitutional rights until after a live birth.
Those who argue for fetal personhood claim that a fetus is entitled to all the protections and rights guaranteed under the Fourteenth Amendment, including the right to life.
Recognizing fetal personhood would have far-reaching implications. It could impact a pregnant person's autonomy, with potential restrictions on their behavior, medical decisions, and bodily integrity. It could also lead to criminal prosecution for self-induced abortions or miscarriages.
Yes, the concept of fetal personhood has been discussed in various legal contexts. In the US, the Supreme Court's 1973 Roe v. Wade decision ruled against fetal personhood, establishing a constitutional right to abortion access. Internationally, most human rights instruments do not include the fetus as a person, but some countries, like Iran, Japan, Norway, and Spain, grant inheritance rights to fetuses or unborn children in specific circumstances.
Fetal personhood laws could significantly impact reproductive rights and potentially violate state constitutions or the constitutional right to due process. It could also lead to legal challenges and ambiguity in interpreting and enforcing these laws.
