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Roe and Fetal Rights


In a story confirming the fact that Bush’s invocation of Dred Scott was code for Roe v. Wade, Kevin Drum excerpts a remarkable statement made by one Rev. Louis Sheldon:

When he said that, it made it very clear that the ’73 decision was faulty because what it said was that unborn persons in a legal sense have no civil rights.

Let’s be absolutely clear about this. The argument that Roe somehow invented the premise that fetuses are not legal “persons” recognized by the Constitution is completely ridiculous. In fact, the idea that fetuses are not persons in the eyes of the United States Constitution is a completely uncontroversial truism. No justice of the Supreme Court–emphatically including Scalia and Thomas–would ever make the claim that fetuses were legal persons. Let us (as some commenters to my recent argument on the subject have done) consider some of the consequences that would flow from the position that Sheldon attributes to Bush:

  • States would not merely have the option of banning abortion, but would be forced to ban abortion, and moreover to punish it with similar penalties as other homicides are punished. This would include cases of rape or incest.
  • The health choices made by women during pregnancies would have to be closely monitored by the state, with women subject to child abuse statutes.
  • Women who have miscarriages would be subject to criminal investigations.
  • People who run fertility clinics should be prosecuted under homicide statutes.

Etc. etc. Reasonable people can disagree about Roe on the premise that states should, if they choose, be able to consider fetal interests alongside the rights of women. But the argument that fetuses have “civil rights” is not a plausible claim rejected by an activist Supreme Court; it’s just flat-out, abject wingnuttery. (And another reason why Kerry should forcefully call out Bush for advocating a Constitutional Amendment that would have similar implications.)


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