Supreme Court Refuses To Hear Case Granting Legal Rights To Fetuses - Forbes

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Topline

The Supreme Court will not consider restricting abortion further after its June ruling that overturned Roe v. Wade, at least for now, as the conservative-leaning court declined Tuesday to hear a case that would have granted constitutional rights to embryos and fetuses and allowed anti-abortion advocates to impose greater limits on the procedure.

Key Facts

The Supreme Court said Tuesday it will not take up Jane Doe et al. v. McKee, a case brought by two parents on behalf of their unborn children and the organization Catholics for Life against Rhode Island Gov. Daniel McKee (D) and the state’s government.

The lawsuit challenged Rhode Island’s law that upholds abortion rights and argues that fetuses and embryos, regardless of their gestational age, are entitled to due process and equal protection rights under the Constitution.

The anti-abortion challengers asked the court to take up the case in light of its June ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the federal right to an abortion, noting that the 6-3 conservative court avoided answering in that decision whether fetuses have any rights themselves.

Petitioners brought the case after it was dismissed in a lower state court and the Rhode Island Supreme Court affirmed that ruling, finding the plaintiffs did not have standing to bring the case because fetuses do not have due process rights under the Constitution.

Anti-abortion advocates have long pushed for legal rights for fetuses—known as “fetal personhood” protections—as the next step beyond abortion bans, which would confer legal rights to fetuses and mean that abortion could be classified as murder, increasing criminal penalties if a pregnancy is terminated.

The lead attorney representing the petitioners, Diane Messere Magee, has not yet responded to a request for comment.

Crucial Quote

“As this Court held in Dobbs, abortion laws are different from all others. Do unborn human beings, at any gestational age, have any rights under the United States Constitution?” the challengers asked in their petition to the Supreme Court. “Or, has Dobbs relegated all unborn human beings to the status of persona non grata in the eyes of the United States Constitution—below corporations and other fictitious entities?”

What We Don’t Know

Whether the Supreme Court could still consider the fetal personhood issue in a future case. The 6-3 conservative court rejected the case without comment on Tuesday, so it’s unclear what the justices’ reasoning was in rejecting the case and whether they’d be amenable to hearing a similar challenge.

Key Background

Fetal personhood rights have become a bigger issue since the Supreme Court overturned Roe v. Wade in June, which led to states across the country banning abortion. Eleven states have personhood language in state law that includes fetuses regardless of gestational age, according to the National Advocates for Pregnant Women, which the New York Times notes were previously largely symbolic but can now carry more practical consequences. Some of those effects are bearing out on the economic level, with Georgia announcing fetuses are now classified as dependents who are eligible for tax credits. Abortion rights advocates fear fetal personhood protections could carry much more wide-reaching effects, however, including potentially criminalizing in-vitro fertilization, birth control methods like Plan B and abortions that take place due to medical emergencies. While people who get abortions are shielded from criminal liability in abortion bans that have been enacted so far—only people who perform or facilitate the abortion can be punished—abortion rights advocates also believe the fetal personhood laws classifying terminating a pregnancy as murder could result in pregnant people being charged as well.