How Abortion Politics Impedes Clear Thinking on Other Issues Involving Fetuses

By MICHAEL C. DORF

Wednesday, May. 28, 2003

So long as Roe v. Wade remains the law of the land, the culture war over abortion will continue to focus on side issues--such as parental consent laws for minors seeking abortions, grisly methods of late-term abortion, and the extent, and limits, of the free speech rights of anti-abortion protesters.

Currently, pro-life and pro-choice partisans fight these skirmishes as a kind of proxy battle, since Roe resolved the ultimate fight over the legality of abortion itself.

No doubt, one's disposition toward the legality of abortion in general plays a substantial role in determining one's position on the related questions. But the side issues are not only side issues. They raise important and difficult questions in their own right.

Consider two recent controversial government actions. First, California authorities decided to charge Laci Peterson's husband with homicide in connection with the death of their unborn child. Second, Florida Governor Jeb Bush recently decided to appoint a legal guardian for a fetus. If you support a right to choose to have an abortion, must you also oppose these actions?

Not necessarily. Both of these governmental acts illustrate that giving legal consideration to the interests of fetuses need not be inconsistent with recognizing a legal right to abortion. Abortion supporters thus should not fear, or feel prevented from, supporting such government acts if they otherwise would do so.

Laci Peterson and Laws Prohibiting Feticide

On Christmas Eve, 2002, when she was eight months pregnant, Laci Peterson disappeared. Her body was later recovered in San Francisco Bay. Her husband Scott was subsequently charged with her murder and the murder of the fetus. He has pleaded not guilty.

The Peterson case is not unique. From time to time, third parties who kill or harm pregnant women in a way that results in the death of a fetus have been charged under general state prohibitions on murder.

For the most part, courts have held that such charges cannot be brought, but not because of Roe. Some courts reasoned that the relevant statutes plainly were not intended to include feticide. Other courts have said that it would be unconstitutional to charge someone with murder for killing a fetus where the statute does not expressly cover fetuses because the right to due process requires that citizens be given fair notice of what conduct is, and is not, permitted by the criminal law. The due process requirement, of course, applies to all criminal laws, not just those that might be construed to cover fetuses.

California's situation however, is different. Earlier, a court had found that California's general murder statute did not apply to feticide. In response the state legislature amended its homicide law so that it now reads as follows: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought" unless the fetus died as a result of a legal abortion.

Because of the exception, there is no direct conflict between California's prohibition on feticide and the right to abortion. Nonetheless, pro-life and pro-choice activists have divided predictably over the issue.

Pro-life politicians and activists have seized on the Peterson case to push for a federal statute defining feticide as murder. Meanwhile, pro-choice politicians and activists worry that defining feticide as murder will lead to the erosion of abortion rights.

That may be a mistake. Many Americans both believe that women should decide for themselves whether to have an abortion, and are rightly horrified by what happened to Laci Peterson and her fetus.

Pro-choice activists who refuse to allow the killing of a pregnant woman to be punished more harshly than the killing of a non-pregnant woman may only alienate this large constituency. It is not wrong to say that Laci Peterson's death, already a tragedy, was an even greater tragedy because she was carrying a fetus, one she intended to bring to term.

Laws Barring Feticide Actually Serve the Interests Protected by the Abortion Right

In my judgment, the pro-choice movement ought actually to support strict laws against feticide. The whole point of an abortion right, after all, is that a pregnant woman--not the state or anyone else--decides whether to have an abortion. A woman who plans to give birth, but is attacked by someone who kills her fetus in the process, is violently deprived of the right to choose not to have an abortion.

Reproductive rights include the right to have children, too. Certainly pro-choice activists would oppose government-mandated sterilization. For similar reasons, they should support punishing feticide. Both take choice away from women--just as anti-abortion laws do.

I don't doubt that nearly all pro-choicers agree with this line of analysis. However, they nonetheless worry that granting fetuses legal protection against third-party killings will undermine Roe v. Wade. Roe crucially determined that fetuses are not persons for purposes of the Fourteenth Amendment. How can the state define the killing of someone or some thing that is not legally a person as murder?

Why Feticide Prohibitions that Exempt Abortion Are Consistent with Roe

There are two satisfactory answers to the worry that supporting anti-feticide laws undermines Roe.

First, laws treating feticide as murder do not need to define fetuses as persons. California's law is illustrative. It defines murder as the killing of a human being or a fetus.

Second, there is nothing especially troubling about permitting the law to define the word "person" differently for different purposes. Statutes routinely define various words, including "person," so that they will mean exactly what the legislature intends in a particular context. And even general constitutional language can be interpreted differently depending upon the context. Corporations, for example, are "persons" under the Fourteenth Amendment in the sense that their property cannot be taken without fair processes, but not in the sense that they are entitled to vote on equal terms with natural persons.

Roe v. Wade said that states are not obligated to treat fetuses as persons. It also said that in a conflict with the constitutional liberty of a pregnant woman seeking an abortion before the fetus is capable of survival outside the womb, the fetus may not be given the same rights as the woman.

However, that certainly does not mean that there are no circumstances in which fetuses can be given legal protection. Again, it all depends on the context.

Consider another analogy. Cats and dogs are not "persons" under the Fourteenth Amendment. Yet surely there is nothing constitutionally suspect about laws forbidding cruelty to animals, even though they limit the liberty of those who would perpetrate such acts of cruelty. Indeed, there would be no inherent constitutional problem with terming a malicious cat or dog killing "murder"-- though imposing too severe a sentence for that act might run afoul of the Eighth Amendment's ban on cruel and unusual punishment.

In sum, so long as respecting the rights and interests of fetuses does not conflict with the right of a woman to decide whether to terminate her pregnancy, there is no necessary contradiction between the abortion right established in Roe and feticide laws.

Can A Fetus Have a Legal Guardian?

Nevertheless, severe tensions can arise, as a tragic case from Florida illustrates.

A 22-year-old severely retarded woman--known in court papers as "J.D.S." --who has no family or legal guardian was apparently raped, and is now more than five months pregnant. She is unable to care for herself, much less an infant, and suffers from a seizure disorder and other physical disabilities that could make childbirth dangerous.

Accordingly, the state Department of Children and Families asked a judge to decide whether an abortion would be in her best interest. At that point, Governor Jeb Bush asked that in addition to appointing a legal guardian for J.D.S., the court ought to appoint a guardian for the fetus she carries.

That request directly contravenes a 1989 Florida Supreme Court decision, In Re T.W. There, the court, in the course of holding that the state's law requiring parental consent for a minor to obtain an abortion violated the Florida Constitution, found that it is improper for a trial judge to appoint a guardian for a fetus.

However, the Florida Supreme Court has become more conservative in the ensuing years, and Governor Bush may be hoping that the current court will reconsider the In Re T.W. ruling. If the court does reconsider, should pro-choice Floridians be concerned? Yes and no.

On the one hand, as with feticide laws, there is no necessary conflict between recognizing an abortion right and appointing a guardian for a fetus. The appointment of a guardian--whether for a minor, the estate of a dead person, a severely retarded person, or a fetus--simply signals that there are interests involved in a case that, absent the appointment of the guardian, would not be represented. It does not mean that those interests will necessarily prevail.

On the other hand, in the J.D.S. case, the particular argument the fetal guardian will make does appear inconsistent with the Roe framework. Presumably, the guardian will argue that it is in the interest of the fetus to be born. How is the court to evaluate that argument? If the judge decides that an abortion would be in the best interest of J.D.S., can he nonetheless conclude that the abortion should not occur because of the countervailing interest of the fetus? If he can, why shouldn't the interest of a fetus in being born prevail in every case in which a woman seeks an abortion, whether or not she is competent?

So far as the fetus is concerned, the J.D.S. case looks like every other abortion case. By contrast with the feticide context, here the interests of the fetus--as represented by a legal guardian--really do clash with the interests of a woman who wants (or who is determined to need) an abortion.

The problem in the J.D.S. case, in other words, is not that appointing a guardian for a fetus is invariably inconsistent with legal abortion. The problem is that appointing a fetal guardian with the specific purpose of making an argument that cuts against any and all abortions--as Governor Bush proposes to do--truly does strike at the core issue of abortion's legality.


Michael C. Dorf, a FindLaw columnist, is Professor of Law at Columbia University.

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