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Supreme Court's Second Anti-Abortion Ruling
Supreme Court Justices Asked to Give Fetuses Legal Standing to Sue
They argue that an earlier ruling in Rhode Island, denying unborn children the legal right to sue on their own behalf, should be vacated in light of the Court's recent decision overruling the Roe.
The concept that a fetus may have rights has already proven to be a useful remedy for those opposed to abortions.
He writes that a new weapon in the arsenal of those who oppose abortions is a lawsuit, on behalf of the "estate" of the aborted fetus, against those who played any role in aborting it; a tactic which has been used at least twice, and was recently upheld by a judge.
Now that Roe has been overruled, the opportunity for this tactic to be used as a powerful weapon against abortions has exploded, says Banzhaf.
If even a few judges agree that an aborted fetus can have a legal estate which is represented by its biological father or some other person, this might imply that fetuses, before being destroyed, have some legal rights which can be protected by judges.
These might include court orders, perhaps obtained by husbands or other biological fathers, prohibiting or at least limiting pregnant women from using illegal drugs, smoking tobacco and/or marijuana, drinking or at least drinking to excess, and even engaging in various jobs or activities which might unreasonably endanger a fetus, says Banzhaf.
Lawsuits based upon fetus-estate theory, even if eventually dismissed or otherwise unsuccessful, can nevertheless have devastating impacts on anyone involved in helping - or even simply counseling - a pregnant women to have an abortion (arguably "killing the fetus"), either a procedure performed by a surgeon or, as in the Arizona case, even one which resulted from a prescription for pills.
It is quite likely that the Supreme Court's Dobbs decision has opened the floodgates to a large number of legal actions based upon new, novel, and unprecedented and untested legal theories, says Banzhaf, who has been called "Legal Academia's Instigator in Chief," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."
Unless and until the law regarding fetuses, becomes settled, legal uncertainty and the risk of exposure to novel legal actions is likely to compel many, including friends and family members, to be reluctant to become involved, directly or even indirectly, with abortions, predicts the law professor.