Blog Posts

Why the rationale behind abortion laws matters

Jen R

Reposting here a comment I made on a thread at PrawfsBlawg called, "Why Does it Matter if a Fetus is a Person?"

So what, really, is different about the state of the law if we call fetuses persons for legal purposes?

It makes a difference because in one case, you're balancing the rights of two people against each other, and in the other case, you're balancing a woman's rights simply against society's preferences about what she does. When there are two people involved, it can be legitimate to constrain the action of one with respect to the other. However, if the fetus is not a person, then how do proponents justify restrictions on abortion (other than what might be considered consumer protection measures)? Are those restrictions justified on the grounds that society has enough of a stake in reproduction that it gets to override personal decisions? If so, then on what basis can women be protected from being legally forced to have abortions, or to use contraception, or not to use contraception?

It may not make a difference to the unborn whether or not they are protected because they are legal persons, but it makes a huge difference to the rest of us.

[I'd add to that comment that there are other plausible legal rationales for restricting abortion in the case of fetal non-personhood besides the one I posited above, but I can't think of any that don't have implications I find unacceptable. This is why I do not support, for instance, efforts to overturn Roe v. Wade on the grounds that the right to privacy is not enumerated in the Constitution.]

Blog Posts

Mother sues Nebraska for prenatal care for her unborn child

Jen R

Remember the Nebraska case last year when the state removed funding for prenatal care for undocumented immigrant women?

A mother in Nebraska has filed a lawsuit claiming that her child is being unlawfully denied assistance for medical care that he or she is entitled to under CHIP and Nebraska's Children's Medical Assistance Program. CHIP defines "child" as "an individual under the age of 19 including the period from conception to birth." (42 C.F.R. § 457.10).

A pregnant woman who is in the country illegally has filed a class action lawsuit contending the state of Nebraska cannot deny prenatal care to her unborn child.

“Sarah Roe,” who is nine months pregnant, argues the state can deny medical services to her, but not to her unborn baby – or to anyone else’s unborn baby, regardless of the mother’s resident status.

A state law that took effect in June denies free prenatal services to any “ineligible alien.” Roe acknowledged that she falls within that category.

However, Nebraska defines someone as a child from the time of conception until they are 19, the lawsuit said. And federal regulations say unborn children are neither citizens nor aliens.


Lawsuit: Prenatal services cannot be denied to the unborn

If the unborn are defined as children under the law, then they should be eligible to receive healthcare, argues the lawsuit. We agree. It's pro-life to provide prenatal care to children no matter what their mothers' immigration status.