The Supreme Court justice who authored the Dobbs ruling overturning Roe v. Wade jumped headlong Wednesday into the debate about whether a fetus is entitled to the same rights as a person.
“It’s not surprising to hear some of the justices expressed sympathy for fetal personhood.
Abortion-rights advocates said Alito has been laying the groundwork for federal fetal personhood since his opinion in Dobbs, though he did not take an explicit position on the issue.
Litman said the justices could be taking incremental steps toward fetal personhood protections, essentially nudging the law in that direction rather than declaring it outright.
“I think the strategy is like, in addition to just asking for full blown constitutional fetal personhood, why not do a few things that move us toward that end.” On a call with reporters, Alexa Kolbi-Molinas with the American Civil Liberties Union’s Reproductive Freedom Project said fetal personhood is the goal for conservatives.
“Whether or not we see a decision in this case that discusses fetal personhood or recognizes these issues or excludes pregnant people from the protection of federal law.
During arguments on Wednesday, it wasn’t just Alito asking about the “unborn child” language in the law.
Justice Neil Gorsuch asked Idaho’s attorney Joshua Turner what to do with EMTALA’s definition of “individual” to include both the woman and the unborn child.
The justice on the Supreme Court who wrote the Dobbs decision that reversed Roe v. Wade threw himself into the argument on Wednesday regarding the equality of rights between an embryo and an adult human.
Prior to arguments regarding whether Idaho’s abortion ban violated a federal emergency care law, proponents of abortion rights expressed concern that the case might be used to further the cause of fetal rights.
According to the Department of Justice, hospitals that accept Medicare funds are required by the Emergency Medical Treatment and Labor Act (EMTALA) to give patients stabilizing care in an emergency, even if that care involves an abortion.
Idaho claimed that the state’s abortion laws are silent on the subject and that the state has established its own guidelines, which forbid abortions completely unless they are necessary to save a pregnant woman’s life and do not pose a serious risk to her health.
After overturning Roe v. Wade, the Supreme Court grappled for the first time with the implications of a state abortion prohibition. Judge Samuel Alito appeared to support the notion that a fetus requires the same “stabilizing treatment” as the pregnant person in the 2022 Wade case.
The conservative justice focused on the phrase “unborn child” that appears in the statute. “.
Alito questioned Solicitor General Elizabeth Prelogar, “Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?”.
“The hospital has a duty to protect the interests of the unborn child,” Alito stated, adding that “the hospital must stabilize the threat to the unborn child, and it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child.”. “.
Prelogar retorted that the hospital’s only responsibility is to stabilize the pregnant women, calling Alito’s interpretation of the statute “erroneous.”.
According to Prelogar, Congress changed the law to include the term “unborn child” in order to strengthen protections for expectant mothers and guarantee they received the care they required.
According to Prelogar, “Congress wanted to be able to protect her in situations where she’s suffering some kind of emergency and her own health isn’t at risk, but the fetus might die.” Examples of such situations include a prolapse of the umbilical cord in the cervix, in which the fetus is in distress but the woman is not.
“Congress wanted to fix that, because hospitals wouldn’t have to treat her otherwise,” the speaker stated.
Pro-life organizations have long maintained that life begins at conception, and organizations such as The Heritage Foundation have championed the idea that the 14th Amendment can be read to prohibit abortion on a national level. Giving a fetus the same rights as an adult would entail the murderous practice of abortion for any reason.
“The justices’ expression of sympathy for fetal personhood is not shocking. The attempt to overturn Roe v. Wade was greatly aided by this motivation. University of Michigan Law School professor Leah Litman said, “Wade.”.
“This idea would completely change the way that we think about health care and reproductive rights because it would outlaw abortion completely in the United States and put other types of reproductive care in danger,” Litman stated.
Though many states recognize a fetus as a person at some point during pregnancy, the concept of fetal personhood gained momentum after Roe was overturned.
According to a report by the liberal organization Pregnancy Justice, at least 19 states either have very broad definitions of personhood in their laws or define “person” in a way that includes a fetus or “unborn child.”.
Although Alito did not expressly address the matter, proponents of abortion rights claimed that since his ruling in Dobbs, he has been paving the way for federal fetal personhood.
The dissent claims that until an arbitrary point in a pregnancy has passed, the States must recognize a fetus as lacking even the most fundamental human right: the right to life. Nothing in our country’s legal traditions or the Constitution gives the Court the authority to adopt that “theory of life,” the author stated.
Not too many months after Dobbs, the court avoided the subject again when it turned down a case asking the justices to rule on the constitutionality of fetal rights.
Litman suggested that rather than announcing fetal personhood protections outright, the justices might be gradually moving the law in that direction.
“I’m not sure if the Court wants to take this action right away, perhaps two years after Dobbs, right before an election,” she remarked. “I think the approach is like, why not do a few things that move us toward that end, in addition to just asking for full blown constitutional fetal personhood?”. “.
A representative from the American Civil Liberties Union’s Reproductive Freedom Project, Alexa Kolbi-Molinas, stated during a conference call with reporters that conservatives want fetal personhood.
Whether a ruling in this case addresses fetal personhood, acknowledges these problems, or bars expectant mothers from receiving federal legal protections is open to debate. We are aware that radical anti-abortion politicians are promoting that, and they won’t stop, the woman remarked.
Alito wasn’t the only one raising concerns about the law’s reference to “unborn child” during Wednesday’s arguments.
Joshua Turner, the lawyer for Idaho, was questioned by Justice Neil Gorsuch about how to interpret EMTALA’s definition of “individual,” which includes both the pregnant woman and the unborn child.
Turner said that because abortion is legal in some states as a stabilizing treatment, the state did not believe that EMTALA forbade the procedure.
Yet, he claimed that the inclusion of “unborn children” in the statute was intentional.
Congress explicitly amending EMTALA to mandate care for unborn children while simultaneously requiring the termination of unborn children, Turner said, “would be a very strange thing.”.
