Fetal Rights Argument
Fetal rights advocates focus on the right of a child to be born healthy. Specifically, they argue that a child has a "legal right to begin life with a sound mind and body." Thus, according to the fetal rights advocates, a pregnant woman has a legal duty to create the best possible prenatal environment."
Protecting the health of the unborn child. Fetal rights advocates maintain that granting fetal rights is a legitimate and important purpose because it protects the health of the child." ' They argue that, since a mother would be subject to criminal sanction for imposing similar risks on a newborn, there are no persuasive justifications for not protecting the child during pregnancy.' Fetal rights advocates argue that there is little distinction between a fetus and a newborn.' In fact, some commentators are referring to a mother's conduct as "fetal abuse... Fetal rights advocates actually maintain that Roe v. Wade gives the fetus the right to be born healthy,'" and that the state must protect the fetus." According to this reasoning, prior to fetus viability, a woman may elect to have an abortion. After viability, the state has a compelling interest in potential life." Thus, after viability, unless the woman's life or health is threatened, the state may prohibit abortion. Furthermore, the argument goes, since alcohol use may result in spontaneous abortion, states with post-viability abortion statutes'may proscribe a pregnant woman's alcohol use to protect a viable fetus.` Similarly, since a state has a compelling state interest in "protecting potential life," the Roe viability standard arguably does not limit a state's intervention to simply the proscription of abortions.' Rather, implicit in this compelling interest is a "right to protect potential life from being unnecessarily injured."' Thus, according to fetal rights advocates, it is the responsibility of the state to protect the fetus from the mother's prenatal alcohol abuse.'
Lack of personhood not a barrier to fetal rights. Fetal rights advocates distinguish Roe v. Wade and subsequent abortion cases by arguing that the maternal privacy right at issue in abortion is on the woman's decision whether to continue her pregnancy, while in the fetal abuse context it's on the woman's conduct during her pregnancy.' Thus, according to fetal rights advocates, the state's interest in abortion focused on safeguarding the woman's health and protecting the fetus from intentional termination' does not conflict with the state's interest in enhancing a person's quality of life by protecting the fetus from harm."'"
While fetal rights advocates acknowledge that fetuses do not have fourteenth amendment rights, nevertheless they maintain that the provision of fetal rights is supported. For instance, they point to the right of a child to bring a civil law suit against a third person for prenatal injury6 43 including wrongful death actions, the right to inherit property, and the right of the state to bring criminal action because of intentional injury to a fetus.' In fact, some jurisdictions allow children to sue for prenatal injuries that are caused by the defendant's preconception negligence. Furthermore,. fetal rights advocates rely on the trend toward lifting interfamily tort immunity, thereby permitting suits by children against parents who have caused the child avoidable injury in support of holding a woman responsible for avoidable prenatal injury."
As to maternal prenatal conduct, a woman's constitutional rights are limited. Fetal rights advocates maintain that a woman's constitutional rights are limited with regard to the fetus and prenatal conduct. First, fetal rights advocates maintain even a woman's constitutional right to bodily integrity, which ordinarily would allow her to refuse medical treatment, is limited. In fact, courts have held that a person's right to refuse medical treatment can be superseded in order to protect dependent third parties, to preserve life, and to preserve the ethical integrity of the medical profession. Thus, courts have refused to sustain a pregnant woman's refusal of medical treatment where the decision will result in the abandonment of minor children. Even where the pregnant woman has no minor children, courts have relied on the state's interest in preserving life to consider the fetus an "innocent third party" deserving of protection. Some jurisdictions have held that a state's interest in the potential life of a fetus may outweigh any intrusion on the rights of a pregnant woman to refuse medical treatment. Thus, fetal rights advocates argue that, having waived her right to abortion, a pregnant woman has a duty to ensure that her fetus enters the world as healthy as possible's" and may not withhold medical treatment from the fetus."
Furthermore, fetal rights advocates argue that since even the fundamental rights" may be denied under certain circumstances, the state has the power to restrict alcohol use which is, at best, merely a privilege. Given the legitimate state interest in protecting fetal life and the tremendous cost to society of fetal alcohol injury, fetal rights advocates argue that the state's primary goal must be to protect the unborn child, even at the expense of infringing on maternal privacy and autonomy.'
In responding to maternal rights advocates who argue that pregnant women have a right to bodily control, fetal rights advocates maintain that a woman subordinates her right to control her body when she becomes pregnant and decides to carry the fetus to term. According to fetal rights advocates, the pregnant woman's interest in autonomy and bodily integrity must be balanced against the welfare of the fetus.' As one commentator argues: "a woman's right to abuse her own body and threaten her own health should not extend to the body of her fetus."'