Law blog post on fetal personhood
Today seems to be the day to consider the legal status of the unborn – first the Nebraska law suit and now this post over on Prawfsblawg, Why Does it Matter if a Fetus is a Person?
I think Professor Horwitz’s analysis is rather simplistic in his claims that fetal personhood decides the question of whether a general prohibition could or should include exceptions for rape/incest or threat to the mother’s life. It is possible that a legislature and/or court could adopt the position articulated by Justice Rehquist in Deshaney v. Winnebago County, “As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” (Chilling, isn’t it? Especially for those of us to thought the first obligation of government was to secure the peace.)
Even if that position is too radical, it is not unreasonable to distinguish pregnancies resulting from rape/incest as falling within the general American position that the is no duty to rescue or render aid to a stranger, while pregnancies resulting from voluntary sex (including those from intentionally but unsuccessfully contracepted sex) as being within the general rule that the person creating the hazard to another has a duty to rescue or in this case continue the pregnancy until the child live outside the womb.
As for life of the mother, it seems very clear to me that a legislature could take the position that the government should not choose between the lives of two citizens and leave that rare case in the realm of private decisionmaking.