Unborn Children and their Constitutional Rights

New York based eminent attorney Anand Ahuja
New York based eminent attorney Anand Ahuja

A 33-year-old Indian-American woman Purvi Patel has recently been sentenced to 30 years in prison in Indiana for feticide and child maltreatment. The verdict makes Patel the first woman in the U.S. to be charged, convicted and sentenced for “feticide” for ending her own pregnancy, according to the group National Advocates for Pregnant Women (“NAPW”). (The Washington Post April 1, 2015). Writing for The Guardian, columnist Jessica Valenti states, “We may never know what really happened in Patel’s case. She has repeatedly said that she had a miscarriage which, if true, means that the state is sending a woman to jail for not having a healthy pregnancy outcome. But even if Patel did procure and take drugs to end her pregnancy, are we really prepared to send women to jail for decades if they have abortions? Even illegal ones?” (The Hindustan Times April 4, 2015).

On April 18, 2014, Alabama Supreme Court reaffirmed in Sarah Janie Hicks v. State of Alabama that the word “child” includes “unborn child”. In 2009, Sarah Hicks was charged with using cocaine while pregnant. As per court documents, her child tested positive for cocaine “at the time of his birth”. “Children in the womb should have the same legal standing as other children”, the Supreme Court of Alabama ruled. According to Justice Tom Parker, who wrote the majority decision, “It is impossible for an unborn child to be a separate and distinct person at a particular point in time in one respect and not to be a separate and distinct person at the same point in time but in another respect. Because an unborn child has an inalienable right to life from its earliest stages of development, it is entitled not only to a life free from the harmful effects of chemicals at all stages of development but also to life itself at all stages of development…….”

These cases (such as Purvi’s and Hick’s) reopen the question of Pro-Choice (Woman’s Right to Choose) v. Pro Life (i.e.; whether unborn children have constitutional rights in the USA) that has been debated in the political arena of this country for long. In Roe v. Wade, (93 S.Ct. 705 (1973) Justice Blackmun, writing for majority concluded, “That the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” However, U.S. legal encyclopedia, states:

“Biologically speaking, the life of a human being begins at the moment of conception in the mother’s womb, and as a general rule of construction in the law, a legal personality is imputed to an unborn child for all purposes which would be beneficial to the infant after its birth.” (42 Am. Jur. 2d, “Infants,” sec. 2.) In 2004, Congress enacted, and President Bush signed, the Unborn Victims of Violence Act, which recognizes the “child in utero” as a legal victim if he or she is injured or killed during the commission of any of existing federal crimes of violence. One of the provisions in the pending (before House-Judiciary Committee) H.R. 36 – Pain-Capable Unborn Child Protection Act, states, “By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli” In Planned Parenthood v. Casey, (505 U.S. 833 (1992) Chief Justice William Rehnquist in his dissenting note stated, “Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere façade to give the illusion of reality.” The courts agree that the unborn child in the path of an automobile is as much a person in the street as its mother, and should be equally protected under the law. Most courts have allowed recovery, even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick. “Viability, of course, does not affect the question of the legal existence of the unborn, and therefore of the defendant’s duty and it is a most unsatisfactory criterion, since it is a relative matter, depending on the health of the mother and child and many other matters in addition to the state of development”. (Prosser and Keaton on Torts, 2nd ed., sec. 36 (1955).

Many jurisdictions, including U.S., actively warn against the consumption of alcoholic beverages by pregnant women due to its association with Fetal Alcohol Syndrome. In Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), Cornelia Whitner was charged and sentenced to a charge of criminal child neglect, by Supreme Court of South Carolina, after she was discovered to have used cocaine while pregnant. In 2004, Melissa Ann Rowland of Salt Lake City, Utah was charged with murder in 2004 after her refusal to undergo a caesarean section resulted in one of the two in her twin pregnancy being stillborn. (Sage, Alexandria, April 29, 2004, “Utah C-Section Mom Gets Probation.” CBS News). Medical science recognizes that an unborn child is in existence from the moment of conception. The work of Edwards with test-tube babies has repeatedly proved that human life begins when, after the ovum is fertilized, the new combined cell mass begins to divide. (Jasper Williams, M.D.) According to A. W. Liley, M.D., “Biologically, at no stage can we subscribe to the view that the foetus is a mere appendage of the mother. Genetically, mother and baby are separate individuals from conception.” And according to Micheline Mathews-Roth, M.D., “It is scientifically correct to say that an individual human life begins at conception, when the egg and sperm join to form the zygote, and that this developing human always is a member of our species in all stages of its life.” (Constitutional Personhood of the Unborn Child by Robert C. Cetrulo) United Nations has also recognized pre-natal rights. “The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”(United Nations Declaration of the Rights of the Child” as quoted by Robert C. Cetrulo in ‘Constitutional Personhood of the Unborn Child’)

Jeremiah 1:5 quotes God saying, “Before I formed you in the womb I knew you.”  In Sarah Janie Hicks v. State of Alabama, Chief Justice Moore argued that natural rights come from God, not from the government. A child unborn at the time of the death of its parent has also been considered a “child” of the decedent in determining beneficiaries of an award in a wrongful death action or other tort cases in the U.S. The Declaration of Independence affirms that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life & Liberty…” As the U.S. Constitution does not provide limitations upon the “right to life”, therefore, an unborn child enjoys same constitutional right as any other person in this country, the right that is enunciated so strongly in the Declaration of Independence. Even in the state of New York that is considered as one of the most progressive states in the country, known as ‘The Abortion Capital of America’, there are consequences of illegal abortion. (New York Penal Code §125.05, §125.20, §125.40-60; and Pub. Health §4164).

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