Does a Fetus Have Rights?

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Culture & Conversation Abortion

Does a Fetus Have Rights?

Rewire News Group Staff

Episode 2 of We'll Hear Arguments dives into the "balancing test" the Supreme Court used to answer this age-old question.

For more Boom! Lawyered episodes, check out our archives here.

Welcome to Episode 2 of We’ll Hear Arguments. For those of you just joining us, Rewire News Group’s legal experts Jessica Mason Pieklo and Imani Gandy are breaking down the most iconic Supreme Court cases for your listening pleasure.

On today’s episode they will be performing a seance to raise Ruth Bader Ginsburg and Thurgood Marshall from the dead. Just kidding. Or are we? (We’re kidding—but feel free to meditate on that possibility for a moment, for self-care.)

Today we find our two legal heroines embarking on part 2 of their five-part deep dive into Roe v. Wade—the seminal case that determined that seminal fluids actually do not create life the second they hit an egg. Yesterday we broke down the arguments the Court heard about life beginning at conception, and today we’re talking about the balancing test the Court used to answer the age-old question: What is more important? A living and breathing pregnant person, or a group of cells that exists inside them? It’s a real head-scratcher!

Roe has collapsed in Texas, and that's just the beginning.

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When asked that question, Justice Byron White suggested the Court consider, “Who would you choose to kill? The innocent one, or what?”—as if between a pregnant person seeking an abortion and the “unborn child,” the innocent one is always the latter. This means in his eyes the pregnant person is the … dirty one? The deviant one? Or, as Imani puts it, he probably thinks the pregnant person is “the promiscuous slut who should have just kept her legs closed.” (Honestly? That pregnant person sounds like a lot of fun.)

This episode also dives into the legal protection at the heart of Roe v. Wade: privacy. As you have probably heard millions of times from anti-choicers, the word “abortion” does not appear in our Constitution, nor does the concept. But privacy, and your right to it? Well, that’s a little more complicated.

Jess and Imani are here to uncomplicate that for you. The next time some Bible thumper tries to come at you with the argument that the founders wouldn’t like abortion? You’ll be properly armed with all the constitutional flexes you need. (Not that the founders’ opinion should really matter—we should probably get out of the habit of letting enslavers be the arbiters of moral good in our political theory!)

They’ll also walk you through superstar Sarah Weddington’s argument that actually we should not turn pregnant people into blood sacrifices for fetuses. And finally, Jess and Imani will talk about Weddington’s argument that abortion rights are inherent to sexual privacy. And they do so all with their trademark wit, candor, and brilliance.

So pop those earbuds in and join us for another half-hour of pure legal bliss. And stay tuned for next time, when we unpack why the hell the state thinks they have a stake in the private health-care decisions of a pregnant person.