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September|October 2003

A Viable Solution

Why it makes sense to permit abortions and punish those who kill fetuses.

By Jeffrey Rosen

CALIFORNIA PROSECUTORS ANNOUNCED LAST SPRING that they would seek the death penalty for Scott Peterson, who was charged with killing his wife Laci and their unborn son. The crime was dramatic enough—the young wife had disappeared on Christmas Eve, and her body had washed up in San Francisco Bay not far from where her husband claimed to have gone fishing. But the murder charge for killing a fetus was legally unremarkable. California is one of 28 states with laws that treat fetuses as legal persons at different stages of pregnancy and protect them from harm. Nevertheless, the breathless stories in the media about the Peterson case reinvigorated support for the federal Unborn Victims of Violence Act, which had passed the House in 1999 but languished in the Senate because of opposition from pro-choice advocates. Renamed "Laci and Conner's Law" at the request of Laci Peterson's parents, the bill would not apply in state cases like Peterson's. Instead, it would create a federal crime allowing charges to be filed against those who kill or injure a fetus during the commission of another federal offense such as a drive-by shooting or resisting arrest, whether or not the assailant knew about the pregnancy or intended to harm the fetus.

Supporters of abortion rights fear that courts might construe a federal fetal protection statute to include a congressional declaration that the fetus is a person from the moment of conception. This declaration, they suggest, could undermine the central premise of Roe v. Wade. "Any time I hear about giving rights to fetuses, I get concerned," Elaine Werner, the executive director of the Connecticut chapter of the National Abortion and Reproductive Rights Action League told The Chicago Tribune. "That's a slippery slope toward eroding Roe v. Wade." In fact, the Peterson law doesn't cover abortions. It explicitly exempts the acts of "any woman with respect to her unborn child" and any person "for conduct relating to an abortion for which the consent of the pregnant woman has been obtained." But it defines an "unborn child" or a "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb." And opponents of abortion have only aggravated the fear that they would urge courts to interpret this language expansively. "Can government find the means . . . can people find the 'heart' . . . to secure the natural right to life that belongs to those unborn?" asked Mel Martinez, the secretary of Housing and Urban Development, at a recent pro-life rally in Washington. Noting that President Bush had campaigned on the promise "that the unborn child has a fundamental individual right to life that must not be infringed," Martinez predicted that the Peterson act would be "a taste of greater victories to come."

Despite the theatrics of interest groups on both sides of the abortion debate, however, the public sees no contradiction in punishing fetal homicide and protecting a woman's right to choose early-term abortion. In recent surveys, more than 90 percent of Americans say they would support a federal law that increases punishment for perpetrators who harm an unborn child, while more than two-thirds oppose laws that restrict first-trimester abortions. The public's intuitions are not only reasonable. They reveal a far more nuanced vision of fetal personhood than the black-and-white vision adopted by the Supreme Court in Roe v. Wade. The fetal homicide statutes provide a model for a legislative solution to the abortion debate that would treat potential life differently in different contexts. By passing the Peterson bill, Congress could protect a woman's right to choose while expressing respect for those who believe that fetuses represent a form of potential life that deserve to be acknowledged by law.

The variety of state laws and judicial decisions providing protections for unborn children reflects the diversity of citizens' intuitions about when life begins. Since Roe v. Wade was decided, state legislatures and courts have tended to provide increasing levels of protection for unborn children under criminal law. Nearly two dozen states rely on some form of the less protective common-law rule that an attacker can be prosecuted for injuries that cause the death of a child only after the child has been "born alive." Thirteen states have homicide laws that consider an unborn child a "person" for part, but not all, of the period of development. (In California, for example, killing an unborn child is punishable after the embryonic stage, at seven weeks, while in Florida, Mississippi, Nevada, Oklahoma, Rhode Island, and Washington, only killing a viable fetus, or "unborn quick child," is considered manslaughter.) But 11 states have adopted homicide laws like the proposed federal statute that consider an unborn child a kind of "person" from conception.

IS THERE A TENSION BETWEEN THESE LAWS AND ROE V. WADE? No, according to the courts that have considered the issue. In rejecting a challenge to the Minnesota Crimes Against Unborn Children Act, which is similar to the Peterson bill, the Supreme Court of Minnesota emphasized that although the law treats fetuses as legal persons, it does not violate Roe v. Wade by treating them as constitutional persons. The defendant who shot his pregnant girlfriend and killed their 28-day-old fetus was not similarly situated to a woman who exercises her constitutional right to abort a fetus before viability, the court held. The Minnesota law explicitly recognized a woman's right to choose abortion, and it protected that right by punishing assailants who deprived a woman of control over her own reproductive choices. States are free to pass laws protecting "the potentiality of human life" as long as "they do so without impinging directly or indirectly on a pregnant woman's privacy rights." The court rejected a broader reading of Roe offered by a dissenting justice, who insisted that the state's interest in protecting a fetus only became compelling after viability.

The Minnesota court's modest reading of Roe is entirely convincing. As the constitutional theorist John Hart Ely famously observed, the government may legitimately protect the interests of those who are not persons—by forbidding cruelty to dogs, for example. But the government may not protect the interests of nonpersons in ways that make the exercise of a fundamental right by a person impossible. The legal scholar Jed Rubenfeld has therefore argued that the Roe court should have identified viability as the point at which states may recognize a fetus as a constitutional person, because only the interests of a constitutional person are strong enough to overcome a woman's fundamental right to choose abortion. But the fetal homicide statutes suggest a compromise: States should be free to define fetuses as legal persons from conception, as long as they are not considered constitutional persons in a way that would infringe on women's rights.

The idea that a legal person may not have all the rights of a constitutional person is hardly novel. Corporations like Microsoft are considered persons under the law; as a result, they can own property, make contracts, and sue and be sued in their own name. But Microsoft can't invoke its legal status to restrict a woman's right to choose abortion. Even the legal philosopher Ronald Dworkin, who is an eloquent defender of Roe, acknowledges the constitutionality of fetal homicide laws that declare fetuses to be persons within state borders. Declaring fetuses, or corporations, to be persons, Dworkin argues, "is a kind of shorthand for describing the complex network of rights and duties, and so long as states do not use the shorthand to curtail or diminish constitutional rights, there can be no constitutional objection." By the same token, Congress should be free to refer to fetal personhood (although the Peterson act does not do so) as long as it makes clear that such language may not be used to restrict a woman's right to choose abortion.

Opponents of the fetal homicide laws fear that if Congress and enough states declare fetuses that aren't yet viable to be persons, then a future Supreme Court might invoke these legislative declarations as evidence of a changing national consensus about fetal personhood. The Roe court, by contrast, said it was unable to detect a consensus about whether fetuses were persons with full constitutional rights. In recent decisions, the Supreme Court has been remarkably impressionistic in discerning evidence of changing national consensus on important constitutional issues. Last year, in Atkins v. Virginia, the court managed to find a national consensus forbidding the execution of the mentally retarded after noting that 18—not quite half—of the 38 states that allow capital punishment had recently passed laws excepting the mentally retarded.

Nevertheless, no responsible justice could invoke the fetal homicide laws as evidence of the public's agreement that fetuses before viability should have rights indistinguishable from those of human beings. Once a fetus is a full constitutional person, state governments not only may pass laws prohibiting abortion but arguably must do so. But the states that have recognized fetuses as legal persons have explicitly recognized in those very same statutes a woman's right to choose. This must mean that whatever conception of fetal personhood the states and Congress have embraced differs from full constitutional personhood. Far from threatening abortion rights, the legislative declarations about fetal personhood could be said to strengthen them.

The Peterson act might serve another useful purpose: revealing as overly crude and legalistic the notion that states must protect fetal life in all circumstances or not at all. Yale Law School's Jack Balkin, for example, has criticized the Texas law challenged in Roe because it held doctors, but not pregnant women, liable for performing abortions. Balkin suggests that the statute's exclusion of women from liability for abortions undermines the state's claim that it is devoted to fetal life.

The truth is that many Americans who believe that life begins at conception also believe that it would be cruel to punish women who perform abortions on themselves or seek illegal abortions from doctors. The Texas law in Roe was designed to deter doctors from performing abortions and therefore make abortions more difficult to obtain. This position may not satisfy a canon lawyer—it may not be consistent, in other words, with a devotion to fetal life in all circumstances—but it is a perfectly rational way of balancing a commitment to fetal life with other moral concerns such as compassion for vulnerable women, and it is a balance that many of our citizens and most of our states continue to embrace.

Along the same lines, the same states that declare fetuses to be persons from conception also emphasize that, before viability, a fetus's interest in potential life is not weighty enough to override a woman's right to choose an early-term abortion. This confirms Dworkin's insight that the language of fetal "personhood" is shorthand for complicated moral judgments that weigh the interests of the fetus differently in different circumstances.

The states and Congress have done a better job than the Supreme Court at respecting a range of views about personhood in a pluralistic society. But some state courts and legislatures have displayed more humility than others. The most aggressive state courts, such as the Supreme Judicial Court of Massachusetts, have resorted to simplistic syllogisms: Human beings are legal persons; fetuses are human; therefore, fetuses are legal persons in all areas of law. Other state courts, such as the Supreme Court of South Carolina, have concluded that the legal personhood of fetuses should be regarded as identical in the civil and criminal contexts. By contrast, more modest courts, such as the North Carolina Supreme Court, have wisely avoided insisting on a single definition of personhood. Far from reflecting "the fundamental disorganization that characterizes the doctrine of legal personhood," as one commentator has observed, the willingness to adopt definitions of legal personhood that allow citizens to disagree about when life begins should be a model for the U.S. Supreme Court as it struggles to clarify the law of reproduction.

The political battles about early-term abortions are, for all practical purposes, over. Society has reached a relatively settled consensus that early-term abortions must be protected and late-term abortions may be restricted, and nothing the courts say or do has changed these views over the past two decades. The great legal issues that will confront the courts in the next generation involve questions raised by new reproductive technologies. What would the principle of legal personhood mean, for example, if applied to a fertilized embryo, a form of potential human life removed from the woman's body before viability? Imagine a woman who creates five embryos for fertility treatment, implants one, and waives her rights over the others. If a doctor then destroys the embryos in the course of research, has he committed a civil or criminal offense?

The variety of fetal homicide statutes suggest that legislatures are better than courts at providing answers to these highly contextual questions. The doctor's liability for destroying a fertilized embryo that the woman has abandoned may be very different from his liability for aborting a fertilized embryo with her consent. The debate over the Peterson law suggests that the Constitution provides no helpful answers to the question of fetal personhood and that courts should resist the impulse to preempt this complicated moral debate before it has unfolded. Still, those who fear that fetal homicide statutes will undermine Roe are too pessimistic. Far from threatening abortion rights, the fetal homicide statutes provide a model for a pluralistic approach to reproductive rights. That approach respects, rather than ruling out of bounds, the complexity of citizens' clashing viewpoints about fetal life.

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic.

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