Towards a New Archimedean Point for Maternal vs. Fetal Rights?

Abstract

The year 2019 has been defined by some experts in the field as “a critical time for abortion rights,” since during the first half of the year alone almost 60 abortion restrictions were enacted in 19 American states, including 26 abortion bans, and many more have been introduced by state legislators. In this article we want to reevaluate whether these recent shifts may amount to a real legal tsunami that could yield a new Archimedean point for women’s and fetuses’ rights, or only a temporary and shallow wave, which will probably abate after the Trump presidency. After exploring in a nutshell the recent restrictive as well as liberal developments in American abortion regulation, we will extensively elaborate on the real meaning and consequences of the 2019 Alabama case of “Baby Roe.” We will critically examine whether this is indeed a groundbreaking precedent with far-reaching results or just an additional local ruling in one of the most stringent states in the U.S. After briefly exploring the two main and central doctrines – best interests of the child and protection of his rights – we will thoroughly and comprehensively discuss their problematic and nuanced implementation in the hotly debated issue of abortion. Finally, we will discuss whether we are slowly but surely stepping towards a new conceptualization of the fetus’s rights and more broadly towards a new Archimedean point for maternal vs. fetal rights.