Is an unborn child a person?

Many of you read the story about the lawsuit where the Attorney General is arguing that an unborn child was not a person. Many news outlets made a lot out of the AG’s argument and its inconsistent, even hypocritical stance compared to his position on abortion and when life begins. The AG is making a sound legal argument, or is he? It certainly sounds disingenuous. Let’s explore why and what this means.

The case involves a seventh months pregnant prison guard who was kept at her post, in extreme heat, even after she had begun having labor pains. She remained at her post and requested relief so she could go to the hospital. She was told to remain at her post. Two and a half hours later she was allowed to leave. She went immediately to the hospital where her child was still born. She and her husband sued the Texas prison system for the death of their child in violation of the due process clause of the 14th Amendment to the U.S. Constitution. The state filed a motion to dismiss and one of their arguments is that the Plaintiffs cannot recover for the death of their child because an unborn child is not a person with any rights protected by the Constitution.

The law that allows individuals to sue the state for violations of civil rights, like due process, is 42 United States Code Section 1983. This statute says that the government can be held liable if it violates the legally protected rights of “any citizen of the United States or other person”.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983

Since the guard and her husband sued the state for violating the 14th Amendment, we also have to look at that provision. In part it says that a state cannot deprive “any person of life, liberty or property, without due process of law.”

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Const. Amend. 14

There is the word “person” again. So the question becomes, is an unborn child a person under the 14th Amendment? The answer for the past fifty years has been no, a fetus or unborn child, no matter how late in pregnancy, is not a person who has any rights under the Constitution. So, the AG has argued the law correctly, as it is today. The only problem is that the Supreme Court case they have to rely on for that legal proposition is Roe v. Wade. As you may recall, this is the decision the Supreme Court recently overruled in Dobbs, with the encouragement and approval of the AG I might add.

Every case since 1973 that has held an unborn child is not a person under the Constitution has relied on Roe v. Wade. In fact, I argue that this rule of constitutional law would not exist without Roe v. Wade. But Roe is gone, so what now? Does that mean that an unborn child is a person under the Constitution? Does this mean that an unborn child has legal rights not only in comparison to his mother, but as it relates to third parties, governments or their parents employers? Does Dobbs go that far? We don’t know, yet.

In Dobbs, the Supreme Court did not declare when life began. It also did not decide when a fetus becomes a person or whether an unborn child has rights protected by the Constitution. All the Court did was declare that the U.S. Constitution does not protect a woman’s right to terminate a pregnancy. It opened the door for states to again regulate terminations of pregnancy. While the right to have an abortion was a federally protected right, the rule that an unborn child was not a “person” under the 14th Amendment made sense. But Dobbs throws the old rule into serious doubt.

One of the questions created by Dobbs is that when you allow states to determine when life begins, or when a person becomes a person, does that decision apply to the U.S. Constitution? Are they then a person under the Constitution?

In a section 1983 case for violation of civil rights, that statute does not create rights, it only protects ones that already exist. To determine whether someone has a right that the constitution protects, federal courts usually look to state law. If a state’s law recognizes an unborn child as a person, is it then legally protected under the U.S. Constitution as well as state law? Likewise, if a state decides an unborn child is not a person, under the same facts, does that child have no federally protected rights?

There are other questions raised. Must a state that grants protection to an unborn child, give full faith and credit to the law of another state whose law does not? Having thrown the issue of the unborn back to the states to deal with, will there be a difference in rights of the unborn, and of their parents and family, from one state to another? This is not even taking into accounts the rights of the mother or the father. It is easy to see the problems and confusion Dobbs is about to open up for constitutional and civil rights lawyers. It also might open up the coffers of the taxpayers to pay for claims related to the death or injury of unborn children. What if the Supreme Court eventually decides to keep the same rule and declares that unborn children are not persons protected by the Constitution? Does that invalidate state laws that grant legal protections to the unborn?

The AG’s arguments may be legal, but it is not logical. No doubt the Supreme Court’s response will also probably not offer much clarity or logic in answering these questions, at least not for a long time. Law does not necessarily mean logic, as Oliver Wendell Holmes well knew, but logical inconsistencies like these make me glad I am not on the Supreme Court.