An Abortion Rights Theory of the Fetus

If the fetus is not a constitutional person, is there an alternative constitutional theory of the fetus? This Article tackles this exceptionally challenging question through an abortion-rights lens. It starts with three premises about the fetus: (1) that the fetus is both living and human, but not a constitutional person; (2) that the fetus is a part and product of the pregnant person’s body; and (3) that the fetus’s value is defined by the pregnant person’s subjective relationship with it (or lack thereof). From there, the Article considers how the law conceptualizes body parts and products, finding that we own them as part of the property interest we have in our bodies. In articulating the right to self-ownership, which has deep historical roots, this Article describes critical differences between owning one’s body and owning others, between market-inalienable and market-alienable property, and between body parts and products in our possession and those abandoned as medical waste.

     The Article then considers whether a property theory of the fetus is appropriate. It argues that the pregnant person has a property interest in her fetus because it is a part and product of her body created through her labor alone. This property relationship is special because it is constitutive of ourselves, unlike our ownership of fungible things. Though the property moniker may appear to devalue the fetus, the Article concludes that a property framing appropriately centers the pregnant person as the decision maker about fetal value. In doing so, the Article focuses particularly on relational understandings of property, under which property can be integral to the owner’s personhood. Finally, the Article explores some high-level policy implications of this theory for abortion rights—including a new articulation of abortion rights through the right to exclude and destroy as well as constitutional safeguards under the Due Process Clause, Takings Clause, and Thirteenth Amendment. As privacy rights have begun to crumble, building out a property theory for the body may provide a new foundation for self-sovereignty.