Man Without Qualities

Friday, August 22, 2003

Collision Course

The Supreme Court of Mississippi has held that a fetus is a "person" under the state's wrongful death statute. The Mississippi Court says it's holding is consistent with Roe v. Wade. Unsurprisingly, other people such as the ACLU see this as a threat to the open abortion rights of Roe v. Wade.

Those other people are correct - but so is the Mississippi Court. In 1983, Justice Sandra Day O'Connor observed that Roe was "on a collision course with itself." She seems to have meant that in a scientific sense, based on the ability of doctors to make ever-younger fetuses "viable." But this Mississippi decision shows another "collission course:" Roe v. Wade is on a collission course with the very "due process" clauses that gave it life.

Specifically, once a fetus is established as a "person" under state law, it is but a small step to concluding that a fetus has due process rights under various federal and state constitutional provisions. That doesn't mean abortion becomes murder or that a fetus' due process rights are the same as an already-born human - but it does mean, for example, that a public hospital or public employee performing an abortion may be required to hold first some kind of hearing to balance the rights of the fetus against the rights of the mother, the same way a public school board considering dismissing a teacher in some cases has to hold some kind of hearing before the dismissal.

And once a fetus has a right to such a hearing (if that happens), it may have to be represented at that hearing by some court-approved spokesperson to argue its case - since the fetus can't do that for itself. The procedural aspects of abortion could become very significant over time.

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