With Roe out the door, the next big abortion battle is already on the Supreme Court steps  | Courthouse News Service
Saturday, December 2, 2023
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With Roe out the door, the next big abortion battle is already on the Supreme Court steps 

The justices' declaration that the abortion debate belongs to the states has been challenged by a group that wants to grant rights to fetuses.

WASHINGTON (CN) — When the conservative majority on the Supreme Court ruled that the right to abortion did not exist in the Constitution, they opened the door to questions about what rights do — or rather, in the case of a new petition before the court, whom they apply to. 

Catholics for Life and two pregnant people filing on behalf of their fetuses are asking the court to reevaluate who, in light of the justices’ June ruling, is covered under the 14th Amendment. Their petition asks if fetuses are entitled to due process and equal protection rights in the Constitution. 

“As this Court held in Dobbs, abortion laws are different from all others,” Diane Messere Magee, an attorney from the Law Offices of Diane Messere Magee, wrote in the petition. “Do unborn human beings, at any gestational age, have any rights under the United States Constitution? Or, has Dobbs relegated all unborn human beings to the status of persona non grata in the eyes of the United States Constitution — below corporations and other fictitious entities? No state court or legislature can answer this question. Only this Court can — as the final arbiter of what the United States Constitution means.” 

This is the next battleground in the anti-abortion movement: the recognition of fetal personhood. If fetuses are granted personhood status, then they are entitled to constitutional rights. The court’s recognition of fetal personhood rights would prevent even abortion-friendly states from protecting reproductive rights. 

“It is not surprising that anti-abortion advocates would argue that the Dobbs decision be stretched to recognize the idea of ‘fetal personhood,’” said Katherine Franke, professor of law and director of the Center for Gender & Sexuality Law at Columbia University. “Overruling Roe v. Wade was never the end game for many of these advocates, so it was just a matter of time before a case making this argument made its way to the Supreme Court.” 

The concept of personhood is not new to the Supreme Court docket. 

“What it means is that you're a holder of rights. … It's the facet of identity that signifies rights holding,” Morgan Marietta, a professor at the University of Massachusetts, Lowell, said in a phone call. 

In fact, many big decisions over the 20th century were about personhood. Brown v. Board of Education — which found that racial segregation in schools was unconstitutional — recognized the personhood of nonwhites. United States v. Virginia — which held that the Virginia Military Institute’s male-only admissions were unconstitutional — recognized the personhood rights of women. 

By contrast, the Roe v. Wade decision in 1973 declared that fetuses did not have personhood rights. Dobbs changes that. 

“The most radical thing that was said in ‘73 was the court saying, absolutely, that a fetus is not a person, and Americans just don't agree,” Marietta said. “They're just deeply divided. We've been fighting over this for 30 years, and the court just changed it back to the states.” 

What this new petition before the court signifies is the thought from some that the court should not have turned this question back to the states and instead should answer it themselves. 

The petition from Catholics for Life and the two pregnant people stems from a Rhode Island law — the Reproductive Privacy Act — that codified Roe into law. The Rhode Island Supreme Court dismissed their challenge to the law for lack of standing, finding that fetuses do not have the right to bring a case before the court. 

After Dobbs, however, the challengers now see an opportunity to advance their case. 

“This Court’s Dobbs holding, that ‘Roe was egregiously wrong from the start,’ and its further overruling of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey surely signal rejection of this Court’s statement in Roe that, ‘[t]he word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn,’” the petition states. “The Fourteenth Amendment has no textual definition of the term ‘any person’ therein. And it neither includes nor excludes unborn human beings specifically.” 

Court watchers and reproductive rights experts warned that these challenges would be coming after Dobbs. The majority opinion — written by Justice Samuel Alito — gave credence to ideas of fetal personhood in a way the court never had before. 

“This is a deeply disputed fact in American culture and politics right now, and even the words that you use indicates which of the possible facts you think are true,” Marietta said. “So in the decision, when they use the word ‘fetus,’ that means something, and when they use ‘unborn child’ that means something else. Alito several times used ‘unborn’ which is the indication of personhood. So I do think that there's a lot of sympathy on the court for the fact of fetal personhood.” 

It is unclear if the court will take up this case. Four justices would have to agree to hear the case, and five would be needed for a majority ruling. While the conservative majority was able to coalesce around a vote to overturn Roe, experts have doubts about expanding rights to fetuses. 

“I doubt the court will take this case, as the justices, especially Chief Justice Roberts, will want the dust kicked up by the Dobbs decision to settle before they take up another explosive abortion case,” Franke said. “In fact, the argument in this case is even more radical than the one made in Dobbs, as there is no precedent that supports the concept of fetuses being ‘persons’ within the meaning of the U.S. Constitution.” 

The court may answer another big question, however, in its decision to hear this case. Experts say the idea of fetal personhood is one of many cases of disputed realities existing in American politics and culture. The court will have to decide if it should be the authority to decide those realities or if that authority lies elsewhere.

“I think the biggest takeaway is that the big question of who gets to decide disputed realities is going to continue to be a major question at court,” Marietta said. “Whether that's something that we want states to do, something we insist that is done by the national legislature, or whether the court itself does this. Do we trust legislatures — representatives of the people — to do this at the state level, at the national level, or do we trust legal elites to decide reality for us?” 

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Health, Law

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