PROTECTING UNBORN CHILDREN AND ABORTION
Summary: States may have laws
that protect unborn children from harm unless the pregnant mother
chooses to abort her child.
“LIBERTY” RIGHT TO ABORTION
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
preference by cloaking abortion with so-called
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)
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
THAT PROTECT UNBORN CHILDREN
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
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
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.”
BIBLE AND THE UNBORN CHILD – A CHRISTIAN PERSPECTIVE
The Image of God:
Humankind is created in God's image (Genesis 1:26-27 and
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
God formed us in the womb (See Psalm 139:13-16). Jeremiah
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).
Central to the Christian faith is that divine Jesus took
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
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:
THE FIRST AMENDMENT WISELY
PROMOTES EXPRESSION OF DIVERGENT VIEWS ... INCLUDING ABORTION AND
OF THE UNBORN
One thing that is for certain is that abortion will continue to be a
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
AND TORT CLAIMS / ACTIONS:
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
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
“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.”
PROBATE AND INHERITANCE
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
were passed before Roe v. Wade,
and the State Constitution added an express
“right of privacy” in the text thereof, current laws, etc.)
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.