Law of Tortious Prenatal Death Since Roe V. Wade
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Missouri Law Review, Vol. 45, pp. 639-666, 1980
In equity, property, crime and tort, the unborn has received and continues to receive a legal personality. However, no harmonizing theory for the legal personality of the unborn has developed. Two separate, modern legal developments, one in tort, the other in abortion law, provide an opportunity to begin the descriptive and prescriptive work on a legal theory for the unborn. The ideological history of prenatal injury law, and the more recent development of prenatal death law has consistently moved toward the affirmation of the unborn as a 'person' in the law. With the United States Supreme Court’s decision in Roe v. Wade, holding inter alia that the unborn is not a 'person' under the Fourteenth Amendment to the United States Constitution, the legal profile for the unborn found the label 'person' fitting for some purposes but not for others. This apparent incongruity has played a part in spawning a number of state court wrongful death decisions involving the unborn. Unfortunately, Roe v. Wade has been employed in an inconsistent fashion by the state courts. The purpose of this article is to analyze the post-Roe v. Wade wrongful death cases involving the unborn and offer a corrective commentary on the confusions and inconsistencies which exist. This article is intended as a contribution to the needed effort to develop the meaning of 'person' in the law, and to derive a legal personality for the unborn.
Number of Pages in PDF File: 28
Keywords: wrongful death, abortion, Roe v. WadeAccepted Paper Series
Date posted: July 14, 2009
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