The Fetal Right to Life Argument

This was revised 11/13/20 putting court names in italics and correcting the spelling of “bogeyman”
The following are excerpts from various parts of the book—


The Court could easily have found that the fetal right to life exists under the Fifth, Ninth, Tenth and Fourteenth Amendments. But the Court said that in the absence of such a right being explicitly written in the Constitution, such a right cannot exist. It is interesting to note, though, that the pregnant woman’s privacy right to have an abortion is not explicitly listed in the Constitution. . . . The Court in Roe has adopted an obvious double standard by relying on the Fifth, Ninth and Fourteenth Amendments to find the woman’s privacy right, but refusing to apply the same principles to recognize the fetal right to life.


When the Fourteenth Amendment “due process” clause became a part of the Constitution in 1868, at least 30 of the 37 states had already enacted statutes prohibiting abortion. The Fourteenth Amendment was not intended to invalidate these anti-abortion statutes. The Court in Roe obviously extended the meaning of this Amendment beyond what it was originally intended to do.

In the 1850s and 1860s, when most of the criminal anti-abortion statutes were passed, there was no need to decide the theological question of when the spirit “quickens” to body. It was felt that the right to preserve fetal life existed regardless of when this happens. In Roe, however, the Court used this uncertainty to dodge the fetal right to life issue. The Court apparently felt that by labeling fetal rights as a religious question that it could avoid the question altogether.

The dilemma of what to do with fetuses who survive abortions was recently in the national spotlight in January of 2019 when Governor Ralph Northam of Virginia was recorded stating that a proposed Virginia law would provide that if a fetus was alive after an abortion that the “infant” would be “kept comfortable” until “a decision would ensue between the physician and the mother.” (Governor Northam actually referred to the surviving fetus as an “infant” three times.) The chilling, unspoken message was that they would decide whether to kill the surviving “infant.” Such a discussion is horrific and barbaric. The premise of Gov. Northam’s statement is a false one—that the right to abort a fetus equals the right to kill a fetus. But for all the flaws in the Roe v. Wade decision, the Court did not actually say that. A right to abort does not necessarily mean a right to kill. Thus, under Roe v. Wade—without overturning or even modifying Roe v. Wade—States have the right to provide for the protection of fetal life at the same time they accommodate whatever right to abortion a woman may have.


Reversing Roe would not necessarily eliminate a woman’s right to privacy. If Roe v. Wade ever were reversed or overturned there are several ways in which it could happen—none of which would require eliminating a woman’s right to privacy and of control over her own body. These alternatives would limit a woman’s right, but not extinguish it.

As terrible as was Roe v. Wade in 1973, it did allow states to prohibit late-term abortions, including partial-birth abortions. Partial-birth abortion literally kills a viable fetus by crushing its skull and sucking its brains out. In 2003, Congress did pass the “Partial Birth Abortion Ban Act,” which prohibits such abortions, except if necessary to save the life of the mother. (The Supreme Court upheld this law in Gonzalez v. Carhart, 550 U.S. 124 (2007).

The idea that every part of Roe v. Wade could be or would be overturned is ridiculous. Remember, Roe v. Wade is a very complex case. The woman’s right to privacy—the right to control her own body—that will never be overturned. That part of Roe v. Wade is laudable. But it would be good for the law to acknowledge the existence of a fetal right to continue living that would have to be weighed against a woman’s right to control her body.


The divorce worked out smoothly, except for deciding what was to become of the frozen seven. Mrs. Davis wanted custody of the embryos because she still wanted to have a baby, and being implanted with one of the seven embryos seemed to be her best chance to do so. But Mr. Davis did not want the responsibility of having to support any of the seven embryos if they should later become born children, subsequent to the divorce. Mrs. Davis said that she did not want any financial help from Mr. Davis if such a child were born. But legally, Mrs. Davis cannot make a binding agreement that could be detrimental to her child. So the issue went to court.


The Park v. Chessin case was erroneously decided. The Court was mistaken in thinking it could allow a child to recover damages for pain and suffering and not allow a child to recover for having been wrongfully conceived and wrongfully allowed to live and be born. Where the injury suffered is inseparably connected with life itself, by allowing the child to recover for the wrongful injury, the court also, necessarily, allowed the child to recover for wrongful life.
Park v. Chessin illustrates the present inconsistency in fetal rights: A fetus may later recover for minor injuries that do not prevent birth, but a fetus has no right to recover for a major injury that causes its death (because a fetus is not recognized as having a right to live).

If someone even mentions the thought of reversing or modifying Roe v. Wade, the pro-abortion crowd goes into hysteria where they cannot see straight—and they rail emotionally against anyone who dares criticize Roe. During the last 47 years, by invoking this hysteria the abortion-lovers have been extremely successful in causing many pro-lifers to back-off, hide, shut up and avoid conflict and controversy. I expect the Bogeyman phenomenon to continue to be employed by the pro-choicers as long as it continues to work.