In defending themselves against a lawsuit, Texas officials have argued that an “unborn child” may not have rights under the US constitution, putting them in tension with arguments made by the state’s attorney general’s office as well as Republican lawmakers to support restrictions to abortion.
A guard at the state prison in the community of Abilene filed the lawsuit in question after she asserted that her superiors barred her from going to the hospital while she experienced intense labor pains and what she suspected were contractions while seven months pregnant and on duty.
The guard – who is named Salia Issa – was finally able to leave to go to the hospital two and a half hours after the pain started. She was rushed into emergency surgery after doctors were unable to find a fetal heartbeat and she ultimately delivered the baby in a stillbirth. The lawsuit claims that if Issa had been able to get to the hospital sooner, the baby would have survived.
Issa and her husband sued the Texas department of criminal justice and three supervisors, arguing the state caused the death of their child. They seek restitution in medical and funeral costs and for pain and suffering.
The prison agency and the Texas attorney general’s office have argued in defense of the lawsuit that the agency should not be held responsible for the stillbirth and that it is not clear the fetus had rights as a person. Both entities advance those positions despite consistent arguments made in lockstep by the attorney general’s office and Texas legislators that “unborn children” should be recognized as people starting at fertilization.
“Just because several statutes define an individual to include an unborn child does not mean that the 14th amendment does the same,” the Texas attorney general’s office wrote in a legal filing in response to the lawsuit, referring to the constitutional right to equal protections afforded to US citizens. The filing also notes that the stillbirth occurred before the US supreme court in June 2022 eliminated the Roe v Wade precedent which had established nationwide rights to abortion protection.
The US magistrate judge Susan Hightower last week allowed the lawsuit to proceed in part, without addressing the arguments over the rights of the fetus.
The overturning of Roe v Wade allowed several states to enact laws which prohibited the termination of many – if not most – pregnancies. Many states, however, have been met with lawsuits challenging the constitutionality of the bans which remain unresolved.
