The Supreme Court declined Tuesday to decide whether fetuses are entitled to constitutional rights in light of its June ruling overturning the 1973 Roe v. Wade decision, which had legalized abortion nationwide, steering clear for now of another front in America’s culture wars.
The justices turned away an appeal by a Catholic group and two women of a lower court’s ruling holding that fetuses lack the proper legal standing to challenge a 2019 state law codifying the right to abortion in line with the Roe precedent. The two women, who were pregnant when the case was first filed, sued on behalf of their fetuses and later gave birth.
Conservative Justice Samuel Alito wrote in June’s ruling overturning the abortion rights precedent that the court took no position in the decision on “if and when prenatal life is entitled to any of the rights enjoyed after birth.”
Some Republicans at the state level have pursued what are called fetal personhood laws, like one enacted in Georgia affecting fetuses starting at around six weeks of pregnancy, that would grant fetuses before birth a variety of legal rights and protections like those of any person.
Under such laws, termination of a pregnancy could be considered murder.
Lawyers for the group Catholics for Life and the two Rhode Island women — one named Nichole Leigh Rowley and the other using the pseudonym Jane Doe — argued that the case “presents the opportunity for this court to meet that inevitable question head on” by deciding whether fetuses have due process and equal protection rights conferred by the Constitution’s 14th Amendment.
The Rhode Island Supreme Court relied on the now-reversed Roe precedent in finding that the 14th Amendment did not extend rights to fetuses. The Roe ruling had recognized that the right to personal privacy under the U.S. Constitution protected a woman’s ability to terminate her pregnancy.
The old Rhode Island laws included a criminal statute, predating the Roe ruling, that had prohibited abortions. After the Roe ruling, a federal court declared the Rhode Island law unconstitutional, and it was not in effect when the Democratic-led Legislature enacted the 2019 Reproductive Privacy Act.
Gina Raimondo, a Democrat who was the state’s governor at the time and is now President Joe Biden’s commerce secretary, signed the 2019 law, which codified the status quo at the time under Roe in terms of abortion rights.
More than a dozen states have enforced near-total abortion bans since the Supreme Court’s abortion June ruling in a case called Dobbs v. Jackson Women’s Health Organization.