Some fetal protection bills disregard the Constitution's promise that citizens are entitled to due process of law. They violate due process guarantees if they lack a scienter requirement or are unacceptably vague. A scienter requirement specifies that the perpetrator of a crime must have intended to commit the crime. Such a requirement is usually necessary for a person to be convicted of an offense in criminal law.
When legislation fails to address intent, as some fetal protection bills do, a person may be prosecuted and punished for a crime that he or she did not intend to commit, when a lesser charge would be more just.
Fetal protection bills also run the risk of being unconstitutionally vague if they do not define all of their terms and spell out precisely what conduct is prohibited. A fetal protection statute that leaves the public, health care workers, and law enforcement authorities uncertain as to its meaning is especially dangerous because it threatens to chill the exercise of constitutionally protected reproductive rights.
Fetal protection bills must be analyzed very carefully. Serious thought should be given to the bills' possible uses and ramifications. Here is a checklist of some important factors that you should evaluate in the bills and discuss with us:. The ACLU Reproductive Freedom Project recommends extreme caution about fetal protection bills because of the potential dangers for reproductive rights.
We urge supporters of civil liberties to be sensitive about evaluating proposed bills on three different levels: 1 legal; 2 political; and 3 rhetorical. By "legal," we mean that they must determine whether or not the proposed legislation will infringe on individual rights. By "political," we mean that they must be aware what group, individual, or impetus is behind the legislation.
And by "rhetorical," we mean that they must take care when they discuss or criticize fetal protection bills; our language should reflect understanding of why many people, including some who are pro-choice, might support fetal protection legislation. While we need to make clear that we respect and sympathize with the many emotional dimensions of this issue, every effort must be made to ensure that fetal protection statutes will not pave the way for government actions that threaten women's rights or reproductive choice.
Many states have "wrongful death" statutes, which allow someone acting on behalf of a deceased person -- usually a surviving relative or an administrator of the estate -- to recover damages for a wrongful or negligent act that caused the person's death. The state courts are divided on whether or not stillborn fetuses may be regarded as "persons" for the purpose of bringing wrongful death actions on their behalf.
The ACLU takes the position that when a prospective parent's plans to continue a pregnancy to term have beenfrustrated by others, that individual should be compensated for the loss of the pregnancy and the harm suffered.
The prospective parent should bring a cause of action and be compensated under tort law, the area of the law concerned with compelling wrongdoers to compensate those whom they have injured. We do not, however, believe that legal action should be brought by a parent or other party on behalf of a stillborn fetus, either under a wrongful death statute or under tort law generally.
Legal claims made on behalf of stillborn fetuses risk intruding upon women's constitutionally protected privacy rights. A recent Florida case in which we participated, Young v. Vincent's Medical Center, demonstrates the important issues at stake when a wrongful death action is brought on behalf of a fetus.
This question arose because a woman had brought a wrongful death action on behalf of her stillborn fetus to seek damages for a hospital's alleged negligence. The state court of appeals, as well as the district court, dismissed the plaintiff's claim on the ground that Florida law permits a cause of action for wrongful death only for those born alive. In earlier cases, the court had consistently held that a stillborn fetus -- who was not born alive -- could not be considered a "person" with the right to bring legal action.
We argued that any recognition of a cause of action on behalf of the stillborn fetus, if understood to separate the interests of the fetus from those of the woman carrying it, could needlessly compromise a pregnant woman's right of reproductive choice. The central question posed by Young v. Vincent's Medical Center was not whether the prospective parent's loss should be compensated, but rather, how it should be compensated.
The Project and the ACLU of Florida urged that any money damages should go to the prospective parent, who should be compensated for the loss of her child and the harm she suffered when her choice to continue a pregnancy to term was frustrated. The understandable impulse to compensate the loss of a fetus, we argued, should not lead to an award of damages to the stillborn fetus.
Instead, the prospective parent's loss could and should be compensated within the existing tort law framework, which recognizes a unified legal interest between the pregnant woman and her fetus. Moreover, the ACLU brief argued that according independent legal rights to fetuses opens the door to causes of action against pregnant women in violation of their autonomy and privacy.
Any equating of a fetus with a "person" or "child" in the wrongful death context would have ramifications in other realms of the law. It might, for example, spur claims for "prenatal negligence" by children suing their own mothers, like Grodin v. Grodin, the Michigan case mentioned earlier in which a child alleged that his mother's conduct during pregnancy had discolored his teeth.
Recognition of independent "fetal rights" would encourage prosecutors and medical personnel to punish women for drug use duringpregnancy or other conduct that could potentially harm a fetus. As the brief states,. The woman's privacy and autonomy would thus be drastically reduced. Any development of "fetal rights" as a legal doctrine would undoubtedly intensify efforts by legal and medical authorities to "police" pregnancy.
Furthermore, Peter Singer suggests that while pro-life advocates claim human life occurs from the moment of conception, this is problematic because for a period after conception, the embryo can split into twins, therefore suggesting that the moment of conception is a clump of cells rather than a human being. Don Marquis presents an argument for the immorality of abortion that claims that deliberate abortion is impermissible and is the in the same category as murder or killing an innocent adult person, with the exception of some rare cases.
In additional cases, if the pregnancy is a result of rape or incest it is also permissible. For example, if humans consumed all the fish in the sea, it could be argued that we threatened the future rights of those fetuses to access fish. Martin Rhonheimer suggests that the fetus does not become a person if it was already biologically a human individual.
Rather the fetus is a human being that eventually actualises its personhood. However, even if the fetus was proved to have moral value, this does not necessarily lead to the conclusion that abortion should be abolished. With regard to the abortion debate, there is evidence leading to a collision of rights in our society.
Consider the following hypothetical exercise:. Imagine a woman is pregnant with Siamese twins. The doctor says they will die within 6 months after birth unless they are separated when they are born, in which case one twin will live for a full adult life, while the other will die almost immediately.
Is it wrong to let one die to save the other? This example demonstrates the puzzle of competing rights. If it is wrong to abort a fetus because of their right to life, then it follows that it is wrong to kill a newborn baby. However if the woman does not choose the option to separate the twins they will both die.
If the mother chooses the surgery, she violates the right to life of the twin that will die. But the twin will die inevitably; it is just a matter of time.
Saving a guaranteed life is valued higher than saving a potential however short life. Michael Tooley firmly rejects the notion that the fetus possesses a right to life. A comatose person is unable to express a desire to continue existing. In this kind of situation, the comatose individuals are still considered persons. Perhaps because of their past experiences of social interaction, emotion, thought and expression, or simply because they were each validated as persons by the society in which they live, both politically with citizenship and formal rights as well as socially with relationships.
No fetus should have a claim to life at the same level as a person. It is clear that there are issues surrounding the pro-life perspective. There are still conceptual hurdles regarding the moral status of the embryo and fetus, and there is an issue regarding the collision of rights. This is addressed further by feminist philosophy on abortion. Everyone agrees that adult human beings have the right to life.
Some people would say that the fertilised cell resulting from conception does not have the right to life. Therefore the right to life is acquired sometime in between those two points, and the big question is 'when? It's sometimes put in another way as the question "when does life begin?
Unfortunately there's no agreement in medicine, philosophy or theology as to what stage of foetal development should be associated with the right to life. That isn't surprising, because the idea that there is a precise moment when a foetus gets the right to live, which it didn't have a few moments earlier, feels very strange. And when you look closely at each of the suggested dates, they do seem either arbitrary or not precise enough to decide whether the unborn should have the right to live.
Nonetheless, as a matter of practicality many abortion laws lay down a stage of pregnancy after which abortion is unlawful because the foetus has a right to life , and the dates chosen are usually based on viability. Because of the difficulty of deciding at what stage a foetus becomes a being with the right to life, some people argue that we should always err in favour of an earlier date.
They say that if we don't know whether the foetus has reached a stage where it has the right to life, we should assume that it does have the right to life, as this will do least damage to the foetus. Some people say that if the foetus is not a person, then abortion deserves no condemnation. This oversimplifies the issues.
Even if the foetus is not a human being, it is clearly regarded by most people and most societies as something special that should not be casually discarded. Various points have been suggested as the point that the foetus gets the right to life.
Here are some of those points and the arguments for and criticisms that have been made of choosing that point of development:. The 'Catechism of the Catholic Church ' states that the embryo must be treated as a person from conception and so do many others who oppose abortion This is the moment when the fertilised egg is implanted in the womb.
This happens about a week after conception. This is when the foetus first moves in the womb.
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