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Summary: States may have laws that protect unborn children from harm unless the pregnant mother chooses to abort her child.


In the landmark case of Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court held that a pregnant woman has a “constitutional” right to obtain an abortion.  But States can prohibit abortion if the unborn child is “viable” (meaning capable of sustained survival outside of the womb).  But even if viable, States may not prohibit an abortion if the procedure is necessary to preserve the pregnant woman’s life or “health.”  “Health” includes physical, emotional, psychological, familial, and her age. Doe v. Bolton 410 U.S. 179 (1973).  Thus, in real world practice, any woman may receive even a late term abortion.

Roe v. Wade is considered by many to be “judicial activism” by “activist judges.” This is because the decision was made by invoking the doctrine of “substantive due process” relying on notions of a “living constitution” to create a privacy right not found in the text of the Constitution.  In short, the Judges thereby decreed their desired policy preference by cloaking abortion with so-called constitutionality. 

Note: The Due Process Clause of the 14th Amendment was merely meant to protect the citizens from government abuse by ensuring that no one be deprived of life, liberty, or property except by due (fair) process. 

Thus, while the Court has consistently acknowledged the State's interest in the life of the unborn child, that right has been held subordinate to this right to privacy of a pregnant woman to choose to terminate an unborn baby’s life with minimal government interference or regulation.


Approximately 38 States have laws criminally prosecuting persons, except pregnant mothers (and assisting abortion practitioners), who commit acts of violence on unborn babies.  In many and probably in a majority of states, a crime occurs regardless of the age of the fetus, i.e., through every stage of gestation.

For example, in California, Penal Code 187(a) defines murder as the unlawful killing of a human being or a fetus with malice aforethought.

A “fetus” was defined by the California Supreme Court to mean “post-embryonic” (i.e., starting at seven to eight weeks gestation). People v. Davis (1994) 7 Cal. 4th 797.
Federal law has the Unborn Victims of Violence Act . Under this Act, it is a crime to harm an embryo or fetus at any stage of pregnancy during an attack on a pregnant woman.

Thus, under state and federal fetal victim criminal laws, an unborn baby is a protected person.


The California Supreme Court in the case of People v. Davis (1994) 7 Cal. 4th 797, distinguished abortion from assaults on pregnant women that cause fetal death. The court held that abortion cases must balance rights of the fetus against a mother's right to privacy.  But in criminal homicide cases, the only interest is the unborn child.

The wanted baby is legally protected.  The fetus that is unwanted by the mother is not protected from the mother.  The child is does not change.  Only the choice of the mother does. 

To many, these inconsistent laws "speak with a forked tongue."  Others believe that the pregnant mother abortion exception is justified in all or at least in certain situations.

“Notwithstanding the Supreme Court’s decision in Roe v. Wade, the States remain free to extend the protection of the law to unborn children so long as that protection does not interfere with the “abortion liberty” recognized in Roe… [A]ll of the States [in the USA] have chosen to do so in one or (more commonly) multiple areas of the law—criminal law, tort law, health care law, property law and guardianship law. The legal protections States have accorded unborn children outside the scope of abortion have withstood repeated constitutional challenges.  It is surely an anomaly that, in every area of law but one—abortion—the States may define the legal status of the unborn child and confer legal rights upon the unborn child. But that anomaly is one that is entirely of the Supreme Court’s making and one which, at some point, the Court will need to confront and resolve.”

The quote above if from an online article entitled The Legal Status of the Unborn Child Under State Law (which exhaustively cites and discusses laws from all 50 states).


The Image of God:

Humankind is created in God's image (Genesis 1:26-27 and 5:1-2).  This includes the entire human race including, many would argue, unborn children. The sacredness of each human is affirmed by the prohibition against murder of a human life in Genesis 9:6. This prohibition was made statutory in the sixth commandment (See Exodus 20:13).

Unborn Children in the Bible:

God formed us in the womb (See Psalm 139:13-16). Jeremiah the prophet and Paul the Apostle both received their calling from God before birth (Jeremiah 1:5 and Galatians 1:15). John the Baptist was filled with the Holy Spirit in his mother’s womb (Luke 1:13-15).

The Incarnation:

Central to the Christian faith is that divine Jesus took human flesh and lived a human life on Earth (John 1:14). His humanity began at conception (Matthew 1:20-21). Luke describes how John the Baptist, as a six-month fetus, responded to the presence of Jesus who was in the womb of Mary as recently formed embryo (Luke 1:39-45).

The above Bible references support the sanctity of human life including the unborn.  This is one of the primary reasons that many Christians oppose abortion in either all, most or some cases.  For example, some make exceptions for rape and incest and/or other extenuating circumstances.  Others make no exceptions.

God's love, mercy, grace and FREE gift of 100% forgiveness, cleansing, healing and eternal life:

See How to go to heaven.


One thing that is for certain is that abortion will continue to be a hotly debated issue.  Thanks to the First Amendment of the United States Constitution, all persons have the freedom to express their diverse viewpoints ono this topic, even if they hold a minority point of view.  Truth is more likely to be found in the “marketplace of ideas.” Abrams v. United States, 250 U.S. 616, 630 (1919).  The majority view is sometimes and sometimes not the truest or most noble position. 

Dissenting and unpopular voices benefit society because they expose falsity and weaknesses of (or reinforce the truth and strengths of) popular ideas, “politically correctness”, and government policies.  “Iron sharpens iron.” (See Proverbs 27:17).
Freedom of speech is as an indispensable tool in a democracy.  It informs the people.  It helps to mold majority decisions.  It can restrain leaders’ bad actions.  It allows people to express ideas different from the majority in a peaceful manner without fear of punishment.



In many states, laws permit a wrongful death civil claim or action for monetary damages against a person or entity that causes death to an unborn fetus. But not in California.

In California, "[a] fetus is not a person within the meaning of our wrongful death statute until there has been a live birth" Justus v. Atchison (1977) 9 Cal.3d 564, at 579-580.  Thus, the mother and/or father may not civilly sue for money damages based on “wrongful death” due to her unborn child being killed by a wrongdoer. 
However, if the parents actually witnessed a negligent act that caused death to the unborn child, they may be able to bring a claim or sue the wrongdoer for negligent infliction of emotional distress.

Further, if a child was injured while unborn (prenatal injury), but is born alive, even for a short period of time, the parents can maintain a wrongful death action.  This is based on Civil Code 43 which states that:

“A child conceived, but not yet born, is deemed an existing person, so far as necessary for the child’s interests in the event of the child’s subsequent birth.”


An individual designated as a surrogate or agent in an advanced health care directive or a power of attorney for health care is not authorized to consent to an abortion on behalf of a patient. Probate Code 4652(e).

“Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.”  Probate Code 6407 Note: “Decedent” means the person who died.

With limited exceptions provided in Section 21621, if a decedent fails to provide in a will or trust (testamentary instruments) for a decedent’s child of decedent born after the will or trust (all testamentary instruments) was fully executed, the omitted child shall receive a share of the inheritance from the decedent’s estate.  The amount received is to be equal in value to that which the child would have received if the decedent had died without having a will or o trust (any executed testamentary instrument).  Probate Code 21620.

Civil Code Sections 698 and 739 provide certain legal rights for a “posthumous” child (that is, for children born after the death of their parent).

Numerous other laws in CA also relate to unborn children.  The above was simply a sampling.

SUMMARY OF CALIFORNIA ABORTION HISTORICAL AND CURRENT LAWS (for example, pro-abortion laws were passed before Roe v. Wade, and the State Constitution added an express “right of privacy” in the text thereof, current laws, etc.)

See California Abortion Law Handbook

Copyright 2013 by M.B. Tozer

DISCLAIMER: This document is for educational purposes only. It does not constitute legal advice. This document provides general information, which may or may not be correct, complete or current at the time of reading. This information is not provided in the course of an attorney-client relationship.  Further, it is not intended to constitute legal advice or substitute for obtaining legal advice from an attorney licensed in your state. For legal advice, please contact an attorney.

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