The Legal Status of the Unborn Child Under State Law
University of St. Thomas Journal of Law & Public Policy, Vol. 6, No. 1, 2011
15 Pages Posted: 2 Aug 2012 Last revised: 20 Jun 2013
Date Written: 2011
Under the United States Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), the States may not prohibit abortion before the pregnant woman’s unborn child is viable, i.e., capable of sustained survival outside of the mother. And even after viability, the States may not prohibit any abortion that is necessary to preserve the woman’s life or health (post-viability abortions account for far less than one percent of all abortions). Notwithstanding the Supreme Court’s abortion jurisprudence, the States are free to confer legal rights upon unborn children outside the context of abortion. This article examines how, through statutes, court rules and judicial decisions, States have recognized unborn children as persons who may be protected from criminal and tortious acts, whose lives must be taken into consideration in making health care decisions under advance directives, who may inherit or otherwise acquire property and for whom guardians or guardians ad litem may be appointed to defend their interests. Because none of these statutes, rules or decisions intrude upon the pregnant woman’s right to obtain an abortion, they have been uniformly upheld when challenged on constitutional grounds. The States’ recognition of legal rights in the unborn child outside the context of abortion, however, creates an underlying tension with the Supreme Court’s postulation of a right to abortion. Why is it only with respect to abortion that the States may not protect the life of the unborn child? That is a question the Court must ultimately confront and answer.
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