WASHINGTON (CN) — Gregory Roden wants to represent Americans en ventre sa mere — a French legal phrase describing a fetus in utero — in the Supreme Court's first big abortion case of the post-Roe era.
He asked the high court to allow him to join a challenge the court will hear over a popular abortion drug.
“Everybody has a fundamental right to be represented in court,” Roden said in a phone call. “Unborn children, likewise, have been historically represented in court in one manner or another. So in this particular controversy, they were never represented so I thought they should be.”
Roden, a nonpracticing attorney, said he felt he had a professional responsibility to represent fetuses’ interest in the case pro bono. He also thinks fetuses would have a better standing argument than the conservative doctors fighting to get the drug, mifepristone, taken off shelves nationwide.
The doctors challenging mifepristone’s two-decade-old approval will have to prove to the high court that they were harmed by the drug even though they don't prescribe it. If the doctors' don't succeed in making their argument, the justices won’t be able to rule on the merits of the case.
Roden is not the only party attempting to bolster the standing arguments in the matter. The states of Missouri, Idaho and Kansas have joined the case in the lower courts and have asked the justices to allow their participation in the high court too. Missouri told the court that allowing it to join the case would remove the standing controversy before it and avoid needless litigation.
It’s not clear how the court will respond to either request, but how the justices react to Roden’s motion could prove consequential for the battle over fetal personhood — the idea that fetuses deserve the same rights as any other American. This idea would mean that all abortions would be banned because murder is outlawed.
Fetal personhood percolated in the anti-abortion movement long before Roe v. Wade was overturned, but since the ruling, many states have attempted to create laws backing the idea.
In Roden’s view, the court has long recognized the rights of fetuses. His brief states that the Supreme Court confirmed this idea in the Dobbs v. Jackson Women’s Health Organization majority opinion where Justice Samuel Alito noted abortion bans passed by the time of the 14th Amendment.
“There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being,” Alito wrote. “Many judicial decisions from the late 19th and early 20th centuries made that point.”
Giving fetuses legal rights presents complex questions when considering the rights of a pregnant person.
Grace Howard, an associate professor of justice studies at San Jose State University who has written about the criminalization of pregnancy, compares this conflict in terms of forcing one person to give another an organ.
“You are not legally allowed to compel me to give you a kidney and the reason why is because that would be considered a form of indentured servitude,” Howard said. “Essentially, you can't force someone to use their body to maintain your body. You are not allowed to do that unless you're pregnant.”
In 2014, Texas attempted to keep Marlise Munoz on life support to serve as an incubator for her 14-week-old fetus. Munoz had an advanced directive stating she did not want to be kept on life support but a hospital refused to disconnect Munoz because of a law giving hospitals legal immunity to keep pregnant patients on life support.
In New York and Florida lawsuits, pregnant women have accused hospitals of forcing them to have C-sections to protect the life of the fetus.
Many fetal rights cases build off criminal laws intended to protect pregnant people. Assaulting a pregnant individual carries a larger penalty than a non-pregnant person. In doing this, however, the rights of the fetus have been used to punish people for crimes against their own pregnancies.
“If the fetus is a person then any pregnancy loss is a murder investigation, right,” Howard said.
A recent scenario of this nature played out when an Ohio woman faced criminal charges for handling a home miscarriage. Brittany Watts was accused of abusing a corpse but a grand jury refused to indict her.
Pregnant individuals can also face charges for drug use.
“Unless you're on probation, if you fail a drug test your doctor is not allowed to call the cops on you unless you're pregnant, in which case, it has happened hundreds and hundreds and hundreds of times,” Howard said.
Justice Clarence Thomas brought up one such case out of South Carolina during oral arguments in Dobbs. He questioned if the viability of a fetus should determine if drug charges could be pursued.
While the harms of drug use during pregnancy are widely recognized, there are also more innocuous substances that can harm pregnancies, like caffeine, deli meats or raw fish.
The patchwork recognition of fetal rights across the country has made it so abortion is allowed in some states while prohibited in others. If the court — or Congress — were to take up an attempt to federally recognize these rights, even abortion-friendly states would be prohibited from protecting the procedure. The same would happen for other pregnancy criminalization.
Roden’s motion before the court does not ask for this recognition — because he thinks the court has already given it — but the court allowing the recognition of fetuses in the challenge to mifepristone could signal an interest in doing so.
“Even if the court doesn't actually take up the idea of fetal personhood, any legal attempt to advance fetal personhood is bad," Howard said, "because it builds up and contributes to this idea that there is a second person inside of a pregnant person's body and almost always, we end up granting the fetus more rights than anybody else would have."
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