Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, January 30, 2009

Constitutional rights of the unborn: a new decisional path

To my knowledge, US courts have uniformly upheld state and federal statutes that protect fetuses, and even embryos, against homicide, except where the lethal act is authorized by the child's mother. Jurists in other nations, and lay persons in this country, often find this on-and-off-humanity bewildering to say the least (unprincipled and unjust to say the most). But as heirs of centuries of common law fictions and many decades of Legal Realism,  it's what we've come to expect of our courts.

Far more rare has been the judicial recognition, post-Roe, of constitutional (as opposed merely to statutory) rights of the unborn. But this is just the path (following an earlier 9th Circuit case) followed by a recent federal district court in Michigan. Here's the link: http://mirrorofjustice.blogs.com/mirrorofjustice/stith/denyingsummaryjudgment.pdf

The opinion by Judge Stephen Murphy is a denial of summary judgment in a section 1983 civil rights case, brought by the guardian of  minor child Chelsie Barker, who was born in the Wayne County jail while her mother was incarcerated there, for injuries sustained during and immediately after the birthing process. The plaintiff alleges that three employees of the jail were indifferent to the minor child’s serious medical needs during the labor and birth, resulting in severe mental retardation and cerebral palsy. Here’s some of the Court’s language:

            “The plaintiff argues, and the Court agrees, that when the injuries alleged occurred, the minor child Chelsie was being held in jail along with her mother and that, therefore, the state actors had a duty to protect and care for Chelsie.” (at 7)

            “The defendants argue that … a fetus is not a “person” within the protection of the Fourteenth Amendment and therefore, the plaintiff cannot state a claim for relief under Section 1983 because all of the allegedly wrongful actions of the defendants occurred prior to Chelsie’s birth.”(at 8)

            Here’s the crucial reasoning by Judge Murphy, as I see it: “It may be true that the legal consequences of injuries to children in utero are obscured by a judicially created haze. (at 25)…[But] the Constitution imposes a clearly established duty on state officials to anticipate the serious medical needs of persons in their care. The Court sees no reason to regard this duty as any less clearly established simply because the risk of harm is posed to an individual who may not yet be a legal person, but who obviously will be one by the term [sic] the harm (or a significant portion of it) occurs.” (at 26)

            The Court had even added that “Because the injury was a continuous one, and given the Court’s finding that she is entitled to maintain an action under Section 1983, there is no principled reason to distinguish those injuries sustained before the birth from those sustained after birth.”(at 18)




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