In 1973’s landmark abortion case, Roe v. Wade, the United States Supreme Court suggested that fetuses do not have constitutional rights because there was no consensus on when a human’s life begins and fetuses were not recognized as persons under the law. In 2019, neither proposition is true.
According to a recent Marist Poll, only 46% of Americans believe “life begins at conception” is a biological and scientific fact, and less than one-third of Democrats reported that they believe life begins at conception. If you read Daily Wire Editor-at-Large Josh Hammer’s piece this past summer on my academic research, then you might be aware of the recent international survey that found 96% of 5,577 biologists affirmed the view that a huma’s life begins at fertilization. The biologists represented over one thousand academic institutions from around the world, and most identified as liberal (89%), pro-choice (85%), non-religious (63%) Democrats (92%).
The Supreme Court considered the question of when life begins because the motivations behind abortion laws can hinge upon it.
If a human’s life begins at birth, a fetus is not a human that is presumptively legally protectable; an abortion restriction would be a bald-faced attempt to control women’s bodies. However, if a human’s life begins at fertilization, a fetus is a human who might be a legally protectable person; such an abortion restriction is then an attempt to protect the life of a human person.
Since we know that fetuses are humans, the question is whether they are legally protectable persons.
Ninety-three percent of Americans believe a human is worthy of legal protection once its life begins. Article 6 of the United Nations’ Universal Declaration of Human Rights states that all humans deserve “the right to recognition everywhere as a person before the law.” After the Fourteenth Amendment was ratified, U.S. Senators Lyman Trumbull and Allen Thurman stated that the amendment protected every human in the nation. These legislators’ understanding of the amendment has been repeatedly echoed by the judiciary.
Supreme Court Justice Hugo Black held that all weak and helpless human beings are persons within the meaning of the Fourteenth Amendment. In Roe v. Wade itself, the Court noted that there could be no opposition to abortion restrictions if the “suggestion of [fetal] personhood is established.” In 1986, Justice John Paul Stevens went a step further and ruled that, if recognized as humans, fetuses’ protection from abortion would be guaranteed by the Fourteenth Amendment. Justices Blackmun, Brennan, and Marshall, who were all part of the Roe Court, repeated Justice Stevens’ argument in 1989.
However, back in 1973, the Court felt it could not recognize the rights of fetuses based on two facts that are demonstrably false in 2019:
- The Court could not “resolve the difficult question of when life begins” because they could not find a consensus of experts that agreed on a certain view. Today, a consensus of biologists affirm the view that a human’s life begins at fertilization, which is consistent with testimony given by experts at the 1981 U.S. Senate Committee on a Human Life Amendment and the 2005 South Dakota Abortion Task Force.
- The Court found fetuses had “never been recognized in the law as persons.” Today, most states recognize fetuses as human persons and human victims under the law; 38 states have fetal homicide laws and 29 states protect humans beginning at fertilization.
Put plainly, the Roe Court could not establish fetal rights because it could not be certain that fetuses were humans and states did not recognize fetuses as persons outside of the abortion context. Today, the Court can be certain that life begins at fertilization and that most states treat the non-abortive killing of a fetus as homicide or murder. Indeed, these changes to the factual underpinnings of Roe were precisely what the Court contemplated as possible grounds for re-examining Roe in 1992’s Planned Parenthood v. Casey.
The Casey Court established that a change in Roe‘s underlying facts could support an argument for overruling it. While legal precedent is important, there is nothing more important than progressing the law to reflect the development of legal concepts and scientific knowledge to ensure that all humans are equally protected.
As it stands today, a nine-ounce premature infant has constitutional rights, but a nine-pound fetus does not; a fetus is recognized as a human and a homicide victim when its father drugs its mother, yet my research found that only 12% of pro-choice Americans recognize an abortion as a homicide. These Americans are inclined to recognize deaths of fetuses as unjustifiable homicides in various non-abortive contexts: A physical attack of a pregnant person (86%), drugging of a pregnant person (87%), and medical malpractice (80%). However, when it comes to abortion, most opponents to fetal rights refuse to recognize fetuses’ humanity.
When the U.S. Supreme Court takes up the next challenge to Roe, the Court should re-examine that precedent in light of these changes to the ruling’s underlying facts. The Court should recognize fetuses as human persons whose rights are guaranteed by the Fourteenth Amendment, regardless of the impact it could have on abortion rights.