Malcolm Rivera
The question of whether a foetus is protected by the constitution is a highly debated topic, particularly in the context of abortion rights. While some argue that a foetus is a person and therefore entitled to the protections guaranteed under the Fourteenth Amendment, including the right to life, others disagree, citing the Supreme Court's ruling in Roe v. Wade that personhood cannot be granted to a foetus before viability, or the point at which it can survive outside the womb. The fall of Roe has led to calls for broader laws that extend legal protections to foetuses, with some states introducing legislation that defines natural persons as including the unborn. However, these laws have faced legal challenges, with some being struck down as unconstitutional.
| Characteristics | Values |
|---|---|
| Fetus considered a person | No, according to the Supreme Court in 1973 |
| Fetus has right to life | No, according to the Supreme Court in 1973 |
| Fetus has constitutional rights | No, according to the Supreme Court in 1973 |
| Fetus considered a dependent | Yes, according to Georgia's HB 481 |
| Fetus counted towards population | Yes, according to Georgia's HB 481 |
| Fetus has right to life from moment of fertilisation | Proposed in the Life at Conception Act |
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What You'll Learn
Fetal personhood laws
Despite this ruling, anti-abortion activists continue to push for broader laws that extend legal protections to embryos and fetuses. For example, Georgia's HB 481, which was struck down in 2020, included language stating that "natural persons include an unborn child". This allowed people to claim a fetus as a dependent on tax forms and required state officials to count a fetus toward Georgia's population for official purposes. Additionally, the Life at Conception Act, which has 164 cosponsors in the U.S., seeks to extend a constitutional right to life for fetuses and embryos from the moment of fertilization.
The debate over fetal personhood laws highlights the ongoing tension between those who advocate for reproductive rights and those who prioritise the rights of the unborn. While some argue that a fetus should be granted personhood and legal protections, others maintain that this would infringe upon the constitutional rights of pregnant individuals, particularly in cases of abortion.
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The Roe decision
In 1973, the U.S. Supreme Court ruled that a fetus is not protected by the Constitution. The case, known as Roe v. Wade, centred on the question of whether a fetus is a person and therefore entitled to the protections guaranteed under the Fourteenth Amendment, including the right to life. 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. This established a constitutional right to abortion access.
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The Fourteenth Amendment
The Roe decision also stated that it was unconstitutional for a state to protect an unborn child against the wishes of the mother before the child could survive outside the womb. The Court's ruling assumed that a fetus necessarily dependent on the mother is only "potentially" human.
Despite this, anti-abortion activists are calling for broader laws that extend legal protections to embryos and fetuses. For example, the Life at Conception Act, which has 164 cosponsors in the U.S, would extend a constitutional "right to life" to fetuses and embryos from the moment of fertilization. Similarly, Georgia's HB 481 includes language stating that "natural persons include an unborn child". However, this law was struck down in 2020.
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The Life at Conception Act
The act is part of a broader push by anti-abortion activists to extend legal protections to embryos and fetuses. In the past, similar laws have been ruled unconstitutional. For example, Georgia's HB 481, which included language stating that "natural persons include an unborn child", was struck down in 2020.
The Supreme Court's 1973 ruling in Roe v. Wade established 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. This ruling assumed that a fetus necessarily dependent on the mother is only "potentially" human.
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The Fifth Amendment
In the early 1970s, lawyers representing the state of Texas argued Roe v. Wade before the US Supreme Court, claiming that a fetus is a person and therefore entitled to the protections guaranteed under the Fourteenth Amendment, including the right to life. However, the Supreme Court ruled that the word 'person' as used in the Fourteenth Amendment does not include the unborn. The Court held that personhood could not be granted to a fetus before "viability", which is the point around 24 weeks of pregnancy when a fetus can survive outside the womb. This established a constitutional right to abortion access.
The Supreme Court's ruling in Roe v. Wade was based on the idea that a fetus is only "potentially" human and therefore does not have the same rights as a person. This has been a contentious issue, with anti-abortion activists calling for broader laws that extend legal protections to fetuses. For example, the Life at Conception Act, which would extend fetuses and embryos a constitutional right to life beginning at the moment of fertilization, has 164 cosponsors in the US.
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