Unsettled and Inconsistent Law: Fetal Rights and Personhood

The legal status of the unborn child is not as clear as most people think. There are glaring inconsistencies in the way that the law is practiced, even in states with liberal abortion policies. For instance, if a person kills a fetus in California without the consent of the pregnant woman or for medical necessity it is considered murder under Penal Code section 187. This is why Scott Peterson was convicted for double-homicide when he killed his pregnant wife, Laci, in 2002. This January in Florida, John Andrew Weldon was sentenced to 14 years in federal prison when he tricked his pregnant girlfriend into taking abortion-causing drugs, leading to the miscarriage of her 6-week-old fetus.

In Roe v. Wade (1973) Justice Harry Blackmun left the door open for fetal human rights when he wrote, “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

It is strange to find that the same states that mandate that abortion be covered by health insurance also punish it as murder when it is performed without consent.

The same states that mandate that abortion be covered by health insurance also punish it as murder when it is performed without consent.

There seems to be a growing acknowledgment even among the pro-choice lobby that the fetus is in fact a human being – the focus is shifting to whether the unborn human being is wanted or not. If the human is not wanted it can, and perhaps should, be disposed of, preferably before it exits the womb.  In the past, people wondered whether a fetus was alive or not, and argued that until the baby was able to breathe on its own it was not entitled to a right to life. But with the advent of ultrasounds and advanced life-saving treatments for premature babies (also provided by health insurance) the issue of whether life exists is nearly moot.

Most pro-choice advocates recognize that there is an ethical dimension to the termination of a fetus, and people like Hillary Clinton have repeatedly argued that abortion should be “legal, safe” and “rare.”

Most pro-choice advocates recognize that there is an ethical dimension to the termination of a fetus.

The argument that a fetus is no more than a random collection of cells may have carried weight in the past but it is no longer viable. Society is now having to face the facts that we are dealing with human beings, and if that is the case, we need to talk about whether they have human rights. The pro-life position has moved past Christian Biblical arguments to engage a much wider audience. The late Christopher Hitchens, an ardent atheist, took a humanist approach to the issue and concluded that if fetuses are human, they have human rights that deserve to be protected.

If the law recognizes that unborn children killed without the consent of the mother or the advice of a doctor have been murdered, and that such murders are a crime against the state punishable by imprisonment or even the death penalty, then the people of the states must come to grips with the issue of whether it is a crime to intentionally abort a fetus for reasons of convenience.

As a society we are quickly closing in on the watershed moment where we will have to confront the reality that fetuses are human beings albeit it silent and vulnerable. If we decide that they are human beings but at the same time are not entitled to rights if somebody chooses that they should not live, then we will awaken to the worst kind of cognitive dissonance. One cannot advocate for rights for some without rights for others without taking on an inordinate amount of power which may be easily abused. If personhood is granted but life remains in jeopardy none of us are safe at any stage of life, whether prior to birth, facing terminal diseases, or coping with severe disabilities that cost more than we are “worth” to a society suddenly empowered to make such decisions.

The United States was founded on the premise that each person has an inalienable God-given right to life, liberty, and the pursuit of happiness. These are rights that no person can take away.

This November, voters in Colorado and North Dakota will decide whether unborn children, and by logical extension any of us, are in fact “persons” under the law deserving full protection or nothing more than tissue with no intrinsic value subject to nurture or disposal by others.