By DEACON MIKE MANNO – August 2, 2021 Published in The Wanderer National Catholic Weekly Print Edition Founded October 7, 1867
A brief submitted to the Rhode Island Supreme Court in June argues that a pre-viable fetus, along with a post-viable fetus, has standing to challenge the Rhode Island Reproductive Privacy Act (RPA), which, according to the brief, “unlawfully amended the Rhode Island Constitution by granting, securing, and funding a right to an abortion.”
Of course the fetuses are not alone in their challenge: Also on board with the argument are three Rhode Island voters, Catholics for Life, and its umbrella entity, Servants of Christ for Life. Representing the plaintiffs is a Chicago-based religious liberty law firm, the Thomas More Society.
The case, as unusual as some of the plaintiffs are, started — as most do — when Rhode Island Gov. Gina Raimondo, a practicing Catholic who now serves the Biden Administration as secretary of Commerce, signed into law a bill that would legalize abortions up to birth. The bill allows late-term abortions on viable fetuses including partial-birth and dismemberment abortions.
The bill was described by the director of the state’s Right to Life Committee as a “New York-style abortion expansion bill.” Thus a legal challenge was initiated. Last November, the trial court rejected the plaintiffs’ claims and dismissed the suit, finding that “unborn persons do not have rights as persons to make this challenge,” their claim about the unconstitutionality of act was dismissed as they suffered no “concrete and particularized harm.”
As a result the case was dismissed by the trial court — not over the merits of the case, but because the plaintiffs did not have standing to sue. The appeal to the State Supreme Court is asking it to find that the plaintiffs do have standing to challenge the law. Under Rhode Island case law, “a plaintiff has sufficient standing to sue if he or she alleges ‘an injury in fact resulting from the challenged statute’.”
The plaintiff’s suit claimed, among other things, that the state’s RPA unlawfully established a constitutional right to an abortion by statute, but not according to the requirements of the state’s constitution. The Rhode Island constitution, Article XIV, Section 1, states, “The general assembly may propose amendments to the Constitution . . . and submitted to the electors at the next general election . . . if then approved by a majority of the electors voting thereon, it shall become a part of the Constitution.”
One of the allegations made by the plaintiffs was that by the legislature’s adoption of the act, plaintiffs were denied the opportunity to campaign and vote against the law during a referendum campaign that would have taken place had the proposal been submitted to the voters for approval or rejection, as any constitutional change would have required.
Since the legislature had no power to alter the state’s constitution without a vote of the people, the action of the legislature violated their right to equal protection because “it treated opponents of the change less favorably than proponents.”
To counter the argument that the plaintiffs suffered no injury, they argue that the denial of their ability to express their views in a statewide constitutional referendum is in itself a judicially cognizable interest that satisfies the legal requirement of injury since the U.S. Supreme Court has ruled that voters treated unequally suffer actual injury.
While these arguments will follow the course of other cases, the interesting question that is raised is about the preborn children. One, Baby Roe, at the time of filing, was non-viable at 15 weeks, the other, Baby Mary Doe, was viable at 34 weeks and was considered a “quick child,” defined by Rhode Island law as: “An unborn child whose heart is beating, who is experiencing electronically measurable brain waves, who is discernibly moving and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of usual medical care and facilities available in this state.”
As a “quick child,” the viable fetus had the protection of the “Willful Killing of Unborn Quick Child” statute. But since the RPA repealed the fetal homicide statute, the child’s right of due process and equal protection was violated, it is claimed.
The unborn babies also “had a protectable legal interest in continuing to keep the criminal abortion law on the books because Roe v. Wade [and other cases] “as judicial decisions, are subject to reversal, and could be overturned as early as the next U.S. Supreme Court term in view of the court’s grant of certiorari in [the Mississippi case of] Dobbs v. Jackson Women’s Health Organization.”
The contention is that if Roe is overruled by the Supreme Court, all state laws that are still on the books that were negatively affected by that case and rendered null, would become enforceable as if Roe never existed. Thus by repealing such statutes such as the fetal homicide statue the “rights” of the unborn babies — whose interest is being advanced by their respective mothers — have been abridged by the passage of the RPA.
Thus the fetuses have a sufficient stake in the outcome of the case, according to the brief.
But a more interesting question is this: Are the fetuses, especially a pre-viable one, persons under the law?
This is where things get a bit complicated. And remember as you read this, the primary issue to be resolved is the issue of standing. You can have standing and still lose your case; but without standing you can’t even sue. So the main issue now is the issue of standing. We’ve seen above how the adult and organizational interest argued for standing.
Now, continuing the standing argument for the preborn, the brief argues:
“The trial court did not distinguish between Roe’s holding — that a pre-viable fetus is not a ‘person’ under the 14th Amendment of the U.S. Constitution when the issue is a woman’s privacy interest in terminating a pregnancy — and a viable fetus’ legal interest in avoiding the depredations of a killer under Rhode Island’s fetal homicide (or quick child) law.
“The latter law renders a viable fetus like Baby Mary Doe a ‘person’ for purposes of the Rhode Island Uniform Declaratory Judgments Act, enabling her to determine her rights under the fetal homicide law and other laws that may protect her. In situations when the rights of a post-viable child, in this case, Baby Mary Doe, under fetal homicide or other protective laws, do not impinge on a woman’s right to abortion found by the U.S. Supreme Court [and] it is erroneous and unjust to ignore injury to their legal interests on the ground that they are not ‘persons’ in the abortion context [emphasis added].
“This is an access to the courts and to justice issue — it does not implicate a state’s attempt to interfere with or abridge a woman’s right to abortion…she has standing to ask, and justice requires, that the Court hear her claim for redress of her injury pursuant to Article I, Section 2 of the Rhode Island Constitution, the 14th Amendment of the U.S. Constitution, and the Uniform Declaratory Judgments Act.
“For these reasons Baby Roe and Baby Mary Doe have shown an actual injury. It was error for the court below to conclude they had no standing to claim redress.”
Thomas Olp, vice president and senior counsel at the Thomas More Society, explained the substantial public interest in this case. “There are several issues here in which a lower court erred,” Olp explained. “In this case the personhood of a pre- or post-viable child in utero is not negated by the United States Supreme Court decision in Roe v. Wade. We are asking the court to acknowledge that a preborn child has standing to challenge the Reproductive Privacy Act’s removal of legal protections under Rhode Island law, including the fetal homicide law and other laws that may protect her.”
So, does a preborn baby have the right to sue? We’ll soon find out what Rhode Island has to say in the matter. Stay tuned.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday morning at 10 a.m. Central on Faith On Trial on IowaCatholicRadio.com.)