Washington — The Supreme Court on Tuesday turned away a dispute over whether the unborn are entitled to constitutional protections, sidestepping an issue that could be at the center of the next big battle overafter high court's conservative majority the nearly 50-year-old Roe v. Wade decision.
The court declined to hear an appeal from two pregnant women, filed on behalf of their then-unborn fetuses, and a Catholic organization of a Rhode Island Supreme Court decision. The state court left intact a Rhode Island abortion rights law and found the unborn babies, Baby Mary Doe and Baby Roe, did not have legal standing to challenge the law because they were not "persons" under the 14th Amendment.
The legal battle involved the Reproductive Privacy Act, which was signed into law by then-Gov. Gina Raimondo in 2019 and sought to enshrine into law the right to an abortion established in the Supreme Court's 1973 decision in Roe.
The two women, who were 15 weeks and 34 weeks into their pregnancies when they sued on behalf of their unborn babies, filed a lawsuit in Rhode Island Superior Court in June 2019, arguing the state's abortion rights bill was unconstitutional. The Rhode Island Supreme Court, however, ruled against the women, leaving the measure in place.
In their petition filed with the court, the women and the group Catholics for Life argued the Rhode Island abortion law stripped their unborn fetuses of their "personhood" by repealing older state laws that established that human life begins at conception, and argued that human life is a "person" under the 14th Amendment. Among the older measures was a statute that criminalized all abortions, and it remained on the books for more than 150 years until the state's new law repealed it.
The women urged the Supreme Court to review the constitutionality of the Rhode Island measure in light of its decision last spring in Dobbs v. Jackson Women's Health Organization, which rolled back the constitutional right to an abortion.
"As this court held in Dobbs, abortion laws are different from all others. Do unborn human beings, at any gestational age, have any rights under the United States Constitution? Or, has Dobbs relegated all unborn human beings to the status of persona non grata in the eyes of the United States Constitution — below corporations and other fictitious entities?" they told the court in their petition. "No state court or legislature can answer this question. Only this court can — as the final arbiter of what the United States Constitution means."
The petitioners argued the questions presented in the case "do not require this court to decide any 'theory of life.'"
"This case presents the unavoidable confrontation of Dobbs, which left unresolved the tensions between the 10th Amendment, federalism, and any surviving constitutional guarantees for the unborn," they wrote. But for now the Supreme Court has decided not to take on those questions.
The Supreme Court's decision in Dobbs, unraveling the constitutional right to an abortion, sent the issue back to elected officials in the states, and in anticipation of the high court's ruling, some states enacted fetal personhood laws.
In Georgia, a 2019 law that grants fetal personhood to fetuses around six weeks of pregnancy, which was allowed to take effect after the Supreme Court overruled Roe,claim their fetuses as dependents on their tax returns.
Bills were also introduced in at least seven states banning abortion by establishing fetal personhood, according to the Guttmacher Institute, an abortion rights research organization.
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