Partial Personhood for the Unborn

Abstract

This article argues for the legal recognition of personhood for viable unborn children as a strategic step toward broader constitutional protections for all unborn human beings. It examines the impact of Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade but did not resolve the constitutional status of the unborn. I critique Roe’s flawed reasoning on fetal personhood, highlighting how previous legal precedents and constitutional provisions could support unborn rights. I contend that viability—defined as the stage at which a fetus can survive outside the womb—is a legally and ethically sound threshold for extending personhood protections, particularly given the inconsistency of granting legal rights to premature infants while denying them to viable fetuses. By framing abortion as a right to terminate pregnancy rather than a right to kill, the article asserts that post-viability abortions constitute unjustified killings and violate due process and equal protection principles. I argue for a gradual legal strategy, beginning with viable unborn children, to advance the broader pro-life objective of securing personhood rights for all unborn human beings.

Keywords: abortion, viability, equal protection, constitution, due process