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2 Women suing on behalf of their unborn babies won’t get to Supreme Court

baby in womb, mother’s hands

zffoto | via Shutterstock

J-P Mauro - published on 10/14/22

The personhood case would set a precedent but Supreme Court now leaving decisions related to abortion to the state-level courts, as directed in its June decision.

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The US Supreme Court has declined to hear arguments on a case that would have forced the justices to weigh in on the topic of fetal personhood. If the court had taken the case, it could have set a precedent that would have offered full protection of the unborn under the Constitution. 

Fetal personhood

Fetal personhood refers to the designation of unborn babies as living persons, who are entitled to the same rights as persons who are born. The topic is a hot-button issue, as the recognition of human life within the womb could launch arguments that any intentional cessation of life in utero could be construed as murder.

The Guardian reports that the case originated in the Rhode Island Supreme Court, where it was ruled that the word “person” does not apply to the unborn. A passage from the Rhode Island ruling reads: 

“The unborn plaintiffs fail to assert a legally cognizable and protected interest as persons pursuant to these repealed statutes, which are contrary to the United States Constitution as construed by the United States Supreme Court.”

The decision, however, went on to cite in its reasoning Roe v Wade, which was overturned by the US Supreme Court last June. With Roe off the books, the plaintiffs from the Rhode Island case saw an opportunity to challenge the state’s decision at the federal level.


According to CNN the plaintiffs included a Catholic group as well as two expectant mothers who wished to sue the government on behalf of the women’s unborn babies. In their request for consideration by the US Supreme Court, the petitioners wrote: 

“This 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 went on to suggest that the questions of fetal personhood are “inevitable” in light of the reversal of Dobbs. They also called their presented argument “unfinished business” left by the June decision to overturn Dobbs and Roe and urged the court to consider the case.

The Supreme Court, however, declined to hear the case and did so without comment. It is likely that the Court will continue to refuse such cases, leaving abortion decisions to the state-level courts and lawmakers, as directed in its June decision. 

AbortionUnited States
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