Defining Foetal Rights

Apr 15, 2020

Written By Jan Hill

How should foetal rights be defined? How should they be balanced with the rights of the mother? And have the scales tipped too far in one direction or the other? We look at some illuminating examples.

The relationship between a pregnant woman and her foetus—one person and one potential person with similar yet separate rights—is unlike any other. Roe v. Wade, the groundbreaking 1973 Supreme Court decision that legalised a woman’s right to seek a legal, medically-supervised abortion during the first trimester of pregnancy, laid the foundation for the debate concerning abortion and foetal rights in the US.

However, the Roe decision limited a woman’s right to terminate her pregnancy, declaring it “not absolute, and may to some extent be limited by the state’s legitimate interests in safeguarding the woman’s health, in maintaining proper medical standards, and in protecting potential human life”. It also found that the interest in potential human life must be measured against the woman’s right to privacy and that the foetus, at a certain point in development, acquires foetal viability—and with it, the right to be protected as a person.

The dispute concerning foetal rights and exactly when a foetus becomes viable continues to rage in the US, and states are passing laws that not only give a foetus the right to live but also the right to be born healthy and to receive medical treatment. Is the balance tipping too far in one direction, and how is the fight likely to be fought in the future?

Case study: Access to abortion in the US is now vulnerable—who’s to blame?

A woman’s legal right to an abortion in the US is as vulnerable as it has been in more than 40 years, due, at least in part, to an aggressive campaign waged by Congressional Republicans, the election of President Donald Trump, and the appointment of two conservative Supreme Court Justices—Neil Gorsuch and Brett Kavanaugh. But these people and entities might not be the only ones at fault. Many abortion-rights activists also blame their movement’s own mistakes. According to a December 2019 New York Times report, the pro-choice movement made several critical errors that put it on the defensive:

National leaders relied too strongly on the protections granted during the Obama administration and a relatively balanced Supreme Court, leading to overconfidence that their position could not be threatened.

Activists in pro-life states where the right to an abortion was under siege say their leaders lost touch with the ways that access to abortion was eroding in conservative red states.

Conflict at Planned Parenthood, the nation’s largest provider of abortions, including the July departure of the group’s new president Dr. Leana Wen, exposed deep internal divisions within the organisation.

In preparation for the 2020 presidential election, the Susan B Anthony List (a leading anti-abortion group) has boosted its campaign budget from $18 million in 2016 to more than $40 million. Democrats have countered by making total support for abortion rights their rallying call to the progressive base of the party, leaving little room for the complicated views on the issue that most Americans hold. When former Vice-President Joe Biden reaffirmed his decades-long support for prohibiting federal funding for abortions, he was severely criticised by abortion-rights supporters, even those within his own campaign. Within a day, Biden reversed his stance.

Case Study: What is foeticide, and how does it differ from abortion?

Foeticide is a term commonly used in the medical community that means “to cause the death of a foetus”, usually before some form of abortion. The Royal College of Obstetricians and Gynaecologists recommends that foeticide be performed “before medical abortion after 21 weeks and six days of gestation to ensure that there is no risk of a live birth”. In abortions after 20 weeks, digoxin or potassium chloride is injected into the foetal heart to stop it, achieving foeticide.

Foeticide via a chemical injection into the selected foetus or foetuses during the first trimester of pregnancy is the most common method of selective reduction, a procedure used to reduce the number of foetuses in a multiple pregnancy. The procedure commonly follows the detection of a congenital defect in the foetus or is used to eliminate the risk of carrying more than three foetuses to term.

Foeticide is also prevalent in countries that practice “sex-selection”. For example, India has one of the highest female foeticide rates in the world, likely because of the country’s strong preference for sons over daughters, along with the frequency and affordability of sex-selective abortion. In India, ultrasound and abortion can be performed for as little as $150.

Case Study: Pregnant woman prosecuted for attempting suicide

In the US, laws at both the federal level and in at least 38 states make it a crime to cause death or injury to a foetus. In December 2010, after suffering a bout of severe depression, Chinese immigrant Bei Bei Shuai, who was 33 weeks’ pregnant and living in Indiana at the time, attempted suicide by ingesting rat poison. However, instead of receiving medical attention and psychiatric care, Shuai was charged with foeticide in March 2011 after her baby died a few days after birth, allegedly because of the poison.

After being held for more than a year on murder charges, Shuai was finally granted bail in 2012 and reached a plea deal with the state in 2013. Under the terms of the agreement, the murder and foeticide charges against Shuai were dropped once she pleaded guilty to criminal recklessness. Shuai was sentenced to 178 days in prison on the lesser charge, but since she had already served 435 days, she did not serve any additional time. However, had her case gone to trial, she could have faced up to 65 years in prison.

The intent of Indiana’s foeticide statute and the federal law passed in 2003 in honour of Laci Peterson, the California woman who was murdered by her husband in 2002 when she was eight months pregnant, was to endow a foetus with legal rights separate from the expectant mother. However, pro-choice advocates in the US say that “Laci and Conner’s Law” exploits the gruesome murder case and is being used by Congressional Republicans and pro-life supporters to undermine Roe v. Wade and to take away a woman’s right to control her reproductive life.

Case Study: Pregnant US woman who insisted she was not using drugs sent to drug treatment centre

In July 2013, a Wisconsin woman was forcibly taken in handcuffs to a holding cell by law enforcement officials. Fourteen weeks pregnant, Alicia Beltran had recently confided at a prenatal check-up that she had ended a pill addiction the previous year and confirmed her claim with a urine test. However, a sceptical doctor and social worker were not convinced and ordered her to start on an anti-addiction drug. When she refused, a court-ordered Beltran to complete a 78-day in-patient drug treatment programme.

Under a controversial 1998 Wisconsin law known as the “cocaine mom act”, child-welfare authorities can imprison a pregnant woman who uses illegal drugs or alcohol “to a severe degree” and who refuses to accept treatment. Beltran filed a lawsuit challenging the constitutionality of the law in 2003, but her case was later dismissed.

Opponents of the Wisconsin law have continued to question its merits in court, but with little success. In 2014, another Wisconsin resident filed a lawsuit claiming that her rights had been violated when she was jailed during pregnancy after methamphetamine was found in her body. However, the court dismissed the case when she moved out of state. Last year, a federal judge found the law unconstitutional, but Wisconsin’s Attorney General appealed the ruling and the US Supreme court later held that the state could continue to enforce the “cocaine mom” law.

Case Study: Foetal death compared to in-utero homicide

Court actions are being brought in the US considering a foetus that has died in utero to be a “person” under state wrongful death statutes. In 1984, the Massachusetts Supreme Court became the first US court to bring a wrongful death action against a third party. In Commonwealth v. Cass, a driver struck a woman who was eight-and-a-half months pregnant, caused the death of her foetus, and was subsequently charged with vehicular homicide.

Although the common law rule in every American jurisdiction, including Massachusetts, had been that the destruction of the foetus in utero is not homicide, in this case the Supreme Judicial Court ruled to the contrary. The Court held that infliction of prenatal injuries resulting in the death of a viable foetus, before or after it is born, constitutes homicide.

In English law, the crime of killing a foetus capable of being born alive is known as “child destruction”. The Crimes Act of 1958 defined “capable of being born alive” as 28 weeks’ gestation, later shortened to 24 weeks. According to the 1990 Amendment to the Abortion Act 1967, a medical practitioner cannot be found guilty of the crime of child destruction. Despite the presence of the law, a charge of child destruction is rare in the UK.

Case Study: Alabama imposes near-total ban on abortion

On May 19, 2019, Alabama passed the Human Life Protection Act, a near-total ban on abortion set to begin in November 2019. However, an October 2019 injunction issued by US District Court judge temporarily blocked the measure from taking effect while a lawsuit challenging the ban as unconstitutional is heard. The ban will remain blocked, at least for now, since the state did not appeal the court injunction by the November 29 deadline. However, this is likely not the end of the issue in Alabama and elsewhere. Anti-abortion supporters hope the controversial case will eventually reach the US Supreme Court.

The victory was just one of many that have been years in the making. Since former President Barack Obama took office in 2008, abortion opponents have fiercely concentrated on electing conservative lawmakers, gerrymandering districts into Republican control, passing abortion restrictions, and supporting conservative justices who would protect them. Then Judge Merrick Garland’s nomination to the Supreme Court failed, Donald Trump was elected president in 2016, and suddenly, outlawing abortion seemed less a pipe dream and more a distinct possibility.

In the last six months, lawmakers in the southern and midwestern regions of the US have passed 58 abortion restriction laws. Ohio lawmakers introduced a measure similar to the Alabama law in November 2019. In March 2020, the Supreme Court will consider its first major abortion case since President Trump appointed two conservative justices to the court, shifting it decidedly to the right.

Prosecuting women in the name of foetal rights

As foetal rights expand, women’s rights seem to be steadily shrinking. As a pregnant woman loses the freedom to make her own reproductive decisions, she appears to be gaining additional responsibility not only for her foetus but also for the actions of others who might choose to hurt her unborn child.

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