The Supreme Court on Tuesday turned down a case that would have forced them to decide whether fetuses are entitled to constitutional rights after overturning Roe v. Wade in June.
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The high court’s conservative majority sidestepped the case that would have triggered a new front in the nation’s culture wars as they declined to hear an appeal involving a Catholic group and two women from Rhode Island who challenged a 2019 state law in Rhode Island that codified abortion rights.
The two women, pregnant at the time when the case was first filed, sued on behalf of their fetuses together with a Catholic organization against a decision by the Rhode Island supreme court.
The state court left in place a Rhode Island abortion rights law and determined the unborn babies had no legal right to sue because they were not ‘persons’ protected by the 14th Amendment.
Conservative Justice Samuel Alito wrote in June’s ruling overturning the abortion rights precedent that in the decision the court took no position on ‘if and when prenatal life is entitled to any of the rights enjoyed after birth.’
The legal battle surrounded the Reproductive Privacy Act, signed by then-Gov. Gina Raimondo in 2019 which sought to enshrine into law the right to an abortion before Roe was overturned.
Old Rhode Island laws that predated the 1973 Roe ruling that legalized abortion pre-viability in all 50 states had prohibited abortions and included a criminal statute. After the Roe ruling, a federal court declared that Rhode Island law unconstitutional, and it was not in effect when the Democratic-led legislature enacted the 2019 Reproductive Privacy Act.
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 2019 case ‘presents the opportunity for this court to meet that inevitable question head on’ by deciding if fetuses possess due process and equal protection rights conferred by the U.S. 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 Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization tossed the abortion question back to the states.
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.
The Georgia 2019 law grants fetal personhood at around 6 weeks and allows pregnant women to claim their unborn children on their tax returns.
Under such laws, termination of a pregnancy could be considered murder under the law.
More than a dozen states have enforced near-total abortion bans since the Supreme Court’s abortion June ruling.
Abortion is protected by law in 21 states and the District of Columbia and is ‘at risk of being severely limited or prohibited’ in 26 states and three territories, according to the Center for Reproductive Rights.
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