Abstract

PIP: This essay opens with an examination of US laws concerning fetal viability as they apply to induced abortion, to a mother's right to refuse medical treatment necessary to save the life of a fetus, and to the rights to file suit for the wrongful death of unborn children. The history of abortion policies in the US is traced from the common law period of the early 19th century to the restrictive post-Civil War laws and the decisions of the Supreme Court in Roe vs. Wade, which upheld the constitutionality of previability abortions; Webster vs. Reproductive Health Services, in which the Court assigned viability to the 20th week of pregnancy and acknowledged that States could have a compelling previability interest in the fetus; and the Casey decision, which provided tolerance for limits on the availability of abortion before viability as long as the limits did not create an "undue burden" on the woman seeking the abortion. Courts dealing with the issue of compelling a mother to undergo medical treatment to save her fetus have been inconsistent as they balanced the state's interest in the fetus against the mother's rights to privacy. Judges have tended to err on the side of forcing the medical interventions, but the most recent trend is against this sort of judgement. In these cases, fetal viability has also served as a dividing line. The inconsistency of the legal system is illustrated by the fact that, whereas the fetus now has a legal existence, wrongful death actions entered on behalf of a nonviable fetus have often been denied although courts have been more willing to extend protection to fetuses in wrongful death tort cases than in abortion or medical intervention cases. Criminal law has a unique set of rules for dealing with fetuses as some states have broadened their definitions of "homicide" to include fetuses, even nonviable fetuses. Courts, however, are reluctant to enlarge criminal statutes on their own. While the central position given to the role of viability in the Roe vs. Wade decision was intended to apply only to abortion (and is diminishing there), state courts have accepted viability as equating personhood and have used the concept to decide medical treatment, wrongful death, and criminal cases. In order to resolve the inconsistencies exhibited by these decisions, states should be allowed to make all decisions regarding the treatment of fetuses.