Can a Fetus Bring a Lawsuit?

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Culture & Conversation Abortion

Can a Fetus Bring a Lawsuit?

Rewire News Group Staff

In Episode 4 of our podcast We'll Hear Arguments, hosts Jessica Mason Pieklo and Imani Gandy discuss who has standing to sue in the first place.

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

All right folks, we’re in the home stretch of We’ll Hear Arguments. We’ve talked about fetuses and pregnant people and states’ rights and lions and tigers and bears, oh my! The arguments in Roe v. Wade go beyond the big hot-button issues, though, so now we’re going to get a little more in the weeds.

You see, one of the strategies the state of Texas took in trying to convince the Supreme Court to let it keep prosecuting doctors for providing health care was to give the justices the runaround, using so many procedural arguments that they might ignore the actual issue at hand. Think of it like a filibuster, but for when you just don’t have a good argument or any real idea what you’re doing because your only objective is to harm pregnant people.

This is where it goes from the weeds to wonk city because the procedural issue Texas used was something called “standing.” You’re probably thinking, what the hell? I thought you always argued cases standing up. And, fair—it would be just like the law to use a ridiculously mundane word to mean something unnecessarily complex.

Sex. Abortion. Parenthood. Power.

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But standing here means: Are you even in a position to sue in this case in the first place? For example, as a human you likely would not have much skin in the game in a case that deals with, like, cow’s rights in Cow Court. Now apply that to a real case, and you have standing. (For a full guide to standing, check out this handy explainer Imani Gandy wrote.)

Except here the state of Texas tried to argue that one of the pregnant people behind Roe—you know her as Jane Roe, though her real name was Norma McCorvey—didn’t have standing because she was no longer pregnant. And that a married couple who was instructed not to get pregnant didn’t have standing because they weren’t pregnant yet. Apparently the only way to have standing according to Texas would be to stay pregnant in perpetuity (another fancy legal term that just means forever).

And if that isn’t absolutely batshit enough, one of the attorneys for Texas even argued that the plaintiffs in this case didn’t have standing because when a person has sex they have foregone their right to make decisions about what might ensue from said devil’s dance. No, really. Here’s what the Texas attorney, Jay Floyd, said: “I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice.”

As you can tell, it’s gonna be another totally chill, not-at-all-bananas episode of We’ll Hear Arguments. Cozy up with a glass of wine and light your RBG prayer candle and listen in. And join us next time for the grand finale, when Jessica Mason Pieklo and Imani Gandy will wrap things up reality TV style: with a reunion of all our major players.

Transcript