Do unborn children have rights?

It depends on who you ask. According to the Unborn Victims of Violence Act, a zygote is endowed with some legal protections as a “child in utero” from conception – before it is technically even a fetus. By their definition, a “child in utero” is a “member of the species Homo sapiens, at any stage of development, who is carried in the womb.”

Scientifically speaking, fetuses (at six weeks after conception) can develop brain activity, can move and “kick” (at three and half months), can realistically survive outside the womb (at six months), and can feel pleasure and pain (at about seven months).

So much activity, and all of this before the future baby even reaches its birthday. Indeed, unborn children are so “humanlike” that religious groups have historically argued that they have moral interests comparable with already-born humans.

My point isn’t to give a moral sermon on abortion here, for the underlying morality of abortion extends far beyond the scope of this article.

But there are logical inconsistencies existing in our legal system today regarding fetal rights, and we must move toward one of two extremes in the future to reconcile these discrepancies: either acknowledge that current abortive mothers ought to be prosecuted for illegal feticide, or do away with fetal rights altogether, denying all legal personhood claims of the unborn.

Scientifically and legally, there’s no reason that the moment of birth ought to be significant. It’s not surprising that the vast majority of U.S. states currently have statutes that define “feticide” as punitively equivalent to murder – about 25 states apply the standard regardless of developmental stage. Only 12 states regard an act of feticide as simply “assault.”

In Alabama, a Guntersville man was recently capitally prosecuted for shooting his ex-wife. Such an act wouldn’t generally be considered a capital crime – except for the fact that the woman was pregnant. According to new state law, Jesse Phillips took two lives that day – that of his ex-wife and her unborn child. He received the death penalty.

Also in this state, scores of “chemical endangerment” cases have been made against mothers whose abuse of drugs, alcohol or other substances results in fetal injury. After all, a woman who chain-smokes or drinks excessively while pregnant is liable for the detrimental effects she causes to her unborn child.

Together, these examples of legal “grey areas” suggest inconsistencies within modern abortion laws.

Consider two hypothetical parents: Mother A and Mother B. Both were unexpectedly impregnated and are now a month into their respective pregnancies. Mother A is a lifelong smoker, frequent drinker and occasional drug user. She abuses these substances to the point where she essentially causes (in the eyes of the law) her unborn child’s miscarriage. She is prosecuted and, in accordance with state law, is convicted and sent to jail.

Mother B, on the other hand, didn’t want to have kids, but is a perfectly healthy adult. After discussing with family, she decides to have an abortion. She goes to a clinic and, in accordance with federal law, is legally permitted to abort. She returns home.

As far as I can tell, the only morally and legally significant difference between the actions of Mother A and Mother B is their motives. Mother A’s killing was reckless and unintentional, whereas Mother B’s was premeditated and quite intentional. Although we send Mother A to prison for “endangerment,” American laws condone the choice of Mother B.

Nowhere else in our legal system is accidental behavior punished more severely than intentional, malicious behavior. Imagine giving a perpetrator of involuntary manslaughter “twenty-five to life,” but letting a calculating murderer walk.

Enough legal precedent already exists to satisfy the “collapse clause” of the Roe v. Wade decision, which states: “If…personhood is established, the [legality of abortion], of course, collapses, for the right to life would then be guaranteed specifically by the [Constitution].” Didn’t the Unborn Victims of Violence Act establish personhood in 2004? Don’t Alabama’s (and many other states’) capital crime and “chemical endangerment” laws establish legal personhood?

In today’s system, fetuses paradoxically have the legally protected “right not to be killed” by a gunman, but depending on how their own mother feels about their existence, they don’t technically have a “right to life.”

At the upcoming presidential debates, two Harvard Law School graduates will likely dance around the messy topic of fetal rights. But can you blame them? Fetuses can’t vote.

Henry Downes is a sophomore majoring in economics.