A prison guard in Texas, Salia Issa, went into labor while working at her post. She requested to leave for the hospital but her supervisor denied her request multiple times over several hours. Issa eventually drove herself to the hospital where doctors discovered her baby was stillborn. Issa sued the prison for violating her rights and causing the death of her unborn child. However, the state is arguing it should not be held responsible and that an unborn fetus may not have rights. This is a stark contrast to Texas’ usual stance on fetal rights and protection of the unborn. Legal experts note the case highlights complications around determining when fetal personhood begins. It remains to be seen how courts will handle such issues going forward as states strengthen laws around fetal rights.
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“Just because several statutes define an individual to include an unborn child does not mean that the Fourteenth Amendment does the same,” the Texas attorney general’s office wrote in a March footnote, referring to the constitutional right to life.
“This Court need not weigh into the difficult question of whether, post-Dobbs, an unborn child possesses constitutional rights under the Fourteenth Amendment,” wrote Benjamin Dower, with the attorney general’s special litigation office, in a January filing.
Represented by the attorney general’s office, as is the expectation for all state agencies that find themselves in court, TDCJ and Issa’s supervisors are asking a federal judge in the Western District of Texas to toss the lawsuit.
Despite decisions that “ultimately resulted in tragic consequences” and supervisorial conduct that was “blunt to the point of rudeness,” Dower wrote, the claims don’t prove the agency or its employees broke the law.
Issa and her husband say in court filings that she was seeking to leave work because her unborn child was suffering from a serious health condition, including a lack of oxygen and difficulty breathing during labor.
It refused to take up a related case out of Rhode Island in October, and Justice Samuel Alito wrote in the Dobbs ruling that it “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.”