Does a fetus have rights? If so, do these rights supersede those of its mother? Let’s break down what the constitution has to say about fetal rights:
The Right to Life
The Constitution outlines the rights we have as citizens and persons in the United States of America, one of which includes the Right to Life.
The Right to Life was the first right enumerated in the Declaration of Independence and is reaffirmed explicitly in the 14th amendment to the Constitution. The 14th amendment reads as follows:
“…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Knowing that a “person” is defined as “an individual human being” in the Oxford English Dictionary, it follows that this Constitutional protection extends to each man, woman, child, and the unborn, as unborn babies are genetically unique, individual human beings (or “persons”).
Choice advocates do not believe this protection extends to the unborn, as the first line of the 14th amendment references “persons born or naturalized in the United States.” However, the first sentence is merely stating the conditions for citizenship. The second sentence then first speaks to the specific protections for citizens and then more broadly for “persons” – “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” We of course recognize that people – even non-citizens – have life, liberty and property protections. A visitor/tourist is accorded the equal protections of the laws simply on the basis of being a “person”.
The “Right to Abortion”?
Choice advocates believe abortion is a reproductive “right.” However, abortion is never once mentioned in the Constitution, unlike the Right to Life. Some choice advocates believe the illegalization of abortion violates a woman’s right to “liberty” (another protection outlined in the 14th amendment). Let’s dissect “liberty”!
The Merriam-Webster Dictionary defines “liberty” in many ways, the general idea being the freedom to do as one pleases without interference or restraint.
Women have individual rights (or “liberties”), as all citizens of the United States do. However, there is a difference between human and individual rights and how we can legally exercise these rights.
Human vs. Individual Rights
Human rights are the rights granted to each person on the basis of their humanity. These rights are not subject to race, sex, religion, ethnicity, etc. Human rights include the right to life, food, shelter, etc.
Individual rights are those granted by the government, such as freedom of speech, religion, press, etc. Individual rights are limited if/when exercising these rights causes harm to another.
Our individual rights give us the choice to partake in sexual intercourse or not, to reproduce or not. However, abortion is not a protected individual right, as it involves the taking of an innocent life — the ultimate violation of one’s human rights.