PETER: So, we've covered the hospitals, we've covered the names, we've covered the inherent goodness of the child. But there's another aspect of being born in America that's very pretty greatly over time. And that is when you're born, how long have you been considered alive already?
ED: Now the question of when life begins is a pretty touchy subject and you'll not be surprised to know that we're not going to decide it here on BackStory one way or the other, but we are going to look at it through historical eyes and throughout American history, there have been those who have been forced to make that call and that's the courts. After all, you have to be considered a person rather than, for instance, a fetus, before you can be granted basic legal rights.
BRIAN: In the middle of the 19th century, some courts started ruling that a fetus could be named as a beneficiary in a will. So for instance, if you wanted to leave your grandson some land, but he hadn't quite been born yet, that was okay. But in 1884, this question of personhood came before the courts in a fascinating and a much more complicated way. The case was called Dietrich v. The inhabitants of Northampton, Massachusetts.
JESSICA WALTERS: There was a woman named Charlotte Frances and she was walking on the street in Northampton Massachusetts and there was, as the court put it, a defect in the sidewalk. And I've seen that described in various places everywhere from a crack to a gaping hole. There was a defect in the sidewalk.
BRIAN: This is Jessica Waters, a law professor at American University.
JESSICA WALTERS: So she was approximately 5 months pregnant and generally acknowledged, prior to feel viability. Meaning that the fetus could not survive outside of the woman. So she falls and this leads to a miscarriage. She ends up suing the city and what she did was interesting because she sued not only for injuries to herself, but she also sued for injuries to the miscarried baby. So the court was faced with the question of, could the baby recover? She actually won in a jury trial for the injuries to herself. Meaning, whatever bumps and bruises she had suffered and then separately pursued the question of injuries to her baby. The case goes forward and she wins at the jury trial for her injuries but she lost for the baby's injuries. And actually ended up having to pay court costs for the part of the case that she lost. She then appeals and that's how it ended up before the Massachusetts Supreme Court.
BRIAN: The Chief Justice of the Massachusetts Supreme Court was a true rockstar of all of legal history, Oliver Wendell Holmes. So however he decided the Dietrich case, people were going to respect that and it was basically going to become the precedent for the entire country.
JESSICA WALTERS: He basically comes to the conclusion that a fetus who is unable to live outside of the mother's womb does not have standing to sue. In other words, the fetus is part of the woman. Part of the mother at the time of the injury and because of that, the fetus does not have a separate standing to bring a suit on its own behalf. And that really is the law of the land for the next 50, 60 years.
BRIAN: But, in 1946, things started to shift. In a landmark case on this issue called Bonbrest v. Kotz.
JESSICA WALTERS: There was a woman who was in labor. And the doctors were accused, essentially, of professional malpractice during the delivery of the child. The child ends up surviving the birth but has injuries as a result of the delivery.
BRIAN: Just to be clear here, because these are injuries sustained during birth but before the child is completely born, they're considered injuries to the fetus.
JESSICA WALTERS: And the question became, could the child that was born alive sue for injuries, essentially, right? And the court now, in a sharp turn from Dietrich, says yes. There's an important point in the Bombrest decision and I'll quote it because I do think it's pretty critical where the court, referring to the fetus says, quote, "It has, if viable, its own bodily form and members. Manifest all of the anatomical characteristics of individuality, possesses its own circulatory, vascular, and excretory systems and is capable now of being ushered into the visible world." And goes on to say again, importantly, quote, "The law is presumed to keep pace with the sciences and medical science has certainly made progress since 1884." Referring explicitly to the Dietrich case. So you see the court changing course and at least as a major part of its analysis saying, hey, the science has changed. We know more than we did. We're more comfortable saying that the fetus isn't only part of the mother but is in fact, a separate entity that can recover against a third party, essentially.
BRIAN: How much had medical practices in terms of viability of fetuses had changed between the 1880s and in 1946 when Bombrest was decided?
JESSICA WALTERS: I'm not a doctor by any stretch.
BRIAN: Well you sound like a lawyer now, with that disclaimer.
JESSICA WALTERS: I know, right? Well, it's my training coming out. I am not a doctor. I am in fact, seven months pregnant, however. So I'm intimately familiar with a lot of this.
BRIAN: So I'm really interviewing two of you, I want that duly noted in my paycheck here at BackStory.
JESSICA WALTERS: Depending on who you ask, right?
BRIAN: Yes.
JESSICA WALTERS: Are you interviewing two of us or one of us?
BRIAN: That's right.
JESSICA WALTERS: But it's interesting because I've been looking over some of the critiques of the Dietrich decision in the past couple of days and there are several commentators who say this is sort of crazy. That the science hadn't changed that dramatically between Dietrich and Bombrest. What we're certainly seeing, however, is a greater recognition of the science by the courts.
BRIAN: Over the next several decades, rulings trended towards giving more rights to the fetus. By 1960, eighteen different states had awarded damages for death or injury to the unborn. And while the question of fetal personhood had more or less existed separate from the question of abortion, the definition of personhood and abortion would become forever linked in 1973, in the case of Roe v. Wade.
JESSICA WALTERS: In Roe, we see the court point blank saying, the fetus is not a person under the 14th amendment. And this was actually a fairly interesting colloquy during the oral argument. Sarah Weddington, who argued on behalf of Jane Roe, was explicitly asked the question, if a fetus is a person, do you lose? And she said yes, I lose. Very explicitly.
BRIAN: And this is very important. In the past year, law makers in Alabama, Virginia, Oklahoma, and Mississippi have all considered measures that would define a human embryo as a person from the moment of conception. Sponsors of these initiatives say they're simply trying to provide protection for fetuses against wrongful death, not abortion. Again, they're trying to separate those two issues. So far, none of the measures has been enacted. But there's a line of thinking that says if they do become law and the Supreme Court upholds that personhood starts at the moment of conception, Roe v. Wade would be voided. There's another chapter here. In 2004, the federal government passed the Unborn Victims of Violence Act. It said if you harm a woman at any stage of pregnancy, and the fetus is also harmed, it's considered two separate crimes because you've harmed two people. You don't need to intend harm to the fetus. You don't even need to know the woman is pregnant. So given all of this, I just had to ask Jessica Waters in what direction she sees the rights of the unborn trending.
JESSICA WALTERS: I think that's the million dollar question. We see the courts signaling a much greater willingness to recognize the state's increased interest in protecting a fetus. However, where we do see what I would call a remarkable inconsistency with abortion law, are questions of can states criminalize or in other ways penalize pregnant women for their actions while pregnant, right? So if a pregnant woman uses illegal drugs while pregnant or engages in some form of activity that's thought to be dangerous to the pregnancy. Can she be liable? And we see some courts saying yes. Right? We've even seen some courts deal with the question of can a woman face liability for failure to consent to a c-section at the end of pregnancy and we see some courts saying yes. So we're starting to see an increased willingness to again perhaps weigh the interest of the fetus over that of the pregnant woman.