On Tuesday, the U.S. Supreme Court refused to rule on whether babies in the womb are people and therefore entitled to constitutional rights and protections in the wake of the June Dobbs ruling, which overturned Roe v. Wade. The appeal that the court declined to hear was in response to a lower court’s May 4 ruling, which found that unborn babies did not constitute “persons” who could bring legal claims.
A lawyer for the plaintiffs, Diane Messere Magee, wrote on Tuesday, “While we are extremely disappointed with this outcome, we are confident that #SCOTUS will eventually have to answer the question in the future.”
Steven Brown the executive director of the American Civil Liberties Union of Rhode Island said the court’s declination “could not be more timely. It ensures that, no matter what the US Supreme Court does, abortion will remain safe and accessible in this state … The ACLU will continue to fight for the protection and expansion of this fundamental right.”
Rhode Island denies babies’ personhood
A pro-life organization, Catholics for Life, along with several individuals including Michael Benson and Nichole Leigh Rowley, filed a lawsuit challenging Rhode Island’s 2019 so-called Reproductive Privacy Act, which enshrined expansive abortion measures into state law.
Former Democrat Gov. Gina Raimondo signed the bill into law, which went into effect despite an attempt by Catholics for Life to block its passage by way of a temporary restraining order.
This case, heard by the Rhode Island Supreme Court, was originally kicked up from the state’s superior court, which had dismissed the plaintiffs’ lawsuit filed in June 2019.
The plaintiffs argued that they should have an opportunity to vote against the law in a state referendum. Two of those advancing the lawsuit did so on behalf of their unborn babies, who they claim were unjustly bereaved of their legal rights.
Rhode Island’s Supreme Court issued its decision one month before Roe v. Wade was overturned. It heavily relied upon Roe, writing, “The United States Supreme court in Roe held that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”
The court determined that “the unborn plaintiffs fail to assert a legally cognizable and protected interest as persons.”
Since the court did not recognize the babies as persons who could bring legal claims, and argued that “Baby Doe and Baby Mary Roe have been born since initiation of this action,” it found no harm had been done.
Appeal to a higher power
Diane Messere Magee, a lawyer who acted on behalf of the plaintiffs, indicated that, owing to the lower court’s heavy reliance upon Roe and Roe’s subsequent overturning, “Baby Mary Doe and Baby Roe are appealing their case, challenging RI’s so-called Reproductive Privacy Act, to the US Supreme Court.”
Citing Dobbs v. Jackson Women’s Health Organization, the pro-life plaintiffs requested that the Rhode Island Supreme Court approve a writ of certiorari.
The petitioners said the supreme court “should grant the writ to finally determine whether prenatal life, at any gestational age, enjoys constitutional protection – considering the full and comprehensive history and tradition of our constitution and law supporting personhood for unborn human beings.”
The petitioners argued that no state can answer the question; that not only is it “solely for this Court to interpret and say what the Fourteenth Amendment means,” but neither “the principles of federalism nor the Tenth Amendment’s reservations of powers give cover to avoidance of this paramount issue.”
Referencing the Rhode Island ruling, they claimed: “In the absence of an explicit textual definition of the words ‘any person’ in the Fourteenth Amendment, this Court should grant the writ in order to establish its meaning and scope relative to abortion laws.”
The so called Productive Privacy Act, which was passed in Rhode Island’s House of Representatives with a vote of 21-17, permits abortion any time and for whatever reason up until “viability,” and permits the killing of viable human beings “when necessary to preserve the health or life of that individual.”
Viability is defined under the law as “that stage of gestation where the attending physician, taking into account the particular facts of the case, has determined that there is a reasonable likelihood of the fetus’ sustained survival outside of the womb with or without artificial support.”