Various opponents of abortion like to pretend that, if a woman has a right to seek an abortion, the law can do nothing to protect a fetus that a woman wishes to carry to term. But that pretense is nonsense.
As Diana Hsieh and I have argued, an embryo or a fetus is not a person, and a woman has a right to seek an abortion. However, that does not mean a fetus has no value: A fetus is enormously valuable to the pregnant woman and the father who want to have a child. Just as a woman has a right to abort a fetus, so she has a right to carry it to term, unmolested by others. Although the fetus does not have rights of its own, the pregnant woman has rights; thus, the government properly protects her body, its contents, and her choice to bring the fetus to term.
With that context in mind, consider the legal chaos that arose in a lawsuit against the St. Thomas Moore Hospital in Colorado.
As the Denver Post reports, in 2006 Lori Stodghill, who was seven months pregnant with twins. She went to the hospital’s emergency room, where she “suffered a blocked artery in her lung . . . went into cardiac arrest” and died. Her twins died, too. “Doctors couldn't save Lori and decided against a cesarian section to try to save the twins. [Lori’s husband Jeremy] Stodghill sued because he believes they should have performed the C-section,” the Post reports. Although Stodghill lost the case, his attorney has appealed to the Colorado Supreme Court.
The hospital’s lawyers argued that the judge “should dismiss wrongful-death claims with regard to the unborn twins because Colorado law does not define a fetus as a person,” the Post continues. Stodghill, on the other hand, contended the fetuses were “persons,” and, later, so did the hospital. A follow-up article from the Post reports that the hospital “acknowledged [on February 4] it was morally wrong for their attorneys to defend a medical malpractice case in the death of unborn twins by arguing Colorado law doesn't consider fetuses to be persons.”
The entire legal case is utterly confused. Given that fetuses are not individuated persons with rights, Stodghill and his attorneys had no proper legal grounds to sue under the wrongful-death statute, which is specifically restricted to “the death of a person.”
That said, although a fetus is not a person, the negligent death of a fetus that its mother and father want to bring to birth constitutes a profound harm to the parents. (The question of the doctors’ alleged negligence is outside the scope of this post, as is the question of whether existing statutes adequately address the issues of negligence and criminal harm.)
Properly, the fact that a fetus is not a person is no barrier to holding accountable those who, through criminal assault or negligence, cause or contribute to the death of a fetus. The pregnant woman has a right to decide whether to seek an abortion or seek to carry her fetus to term—and the government’s proper responsibility in this context is to protect her right to choose.
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