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St. Thomas Law Review

First Page

207

Document Type

Article

Abstract

This article will examine the state of prenatal tort and wrongful death law at the time the Supreme Court decided Roe v. Wade and compare such examination to Justice Blackmun's assessment of it in his Roe opinion. Justice Blackmun's opinion in Roe v. Wade briefly takes up the area of prenatal tort law wherein he discusses some of the (allegedly) inchoate rights of the unborn: In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon life birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Having struck down this straw man, Blackmun concludes, "[i]n short, the unborn have never been recognized in the law as persons in the whole sense."As the reader can see from the foregoing, Blackmun indirectly cited the cases from William Prosser's The Law of Torts ("Prosser") and an article from the American Law Reports, Annotation, Action for Death of Unborn Child ("ALR"), and then he cited those two articles and a third one by William Maledon, Th'e Law and the Unborn Child: The Legal and Logical Inconsistencies from the Notre Dame Lawyer ("Maledon"). The development of prenatal tort law case history and the change of "the traditional rule of tort law," as presented in both the cases and the legal writings, will be thoroughly scrutinized in this article-a change which William Prosser described it as "up till that time the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts." The purpose of this article is not just to challenge Blackmun's understanding of prenatal tort law. Rather, the issues presented in this area of law are of stunning consequences with far-reaching implications affecting and affecting the legal status of unborn children at the time Roe was decided. How so? Consider the case, Dietrich v. Northampton, which came to stand for "the traditional rule of tort law." Justice Oliver Wendell Holmes, Jr. decided Dietrich when he was a Massachusetts Supreme Court justice. Holmes held that a fetus at five months of gestation was just part of its mother and had no separate legal existence.9 Consequently, even though the fetus survived a few minutes after a premature birth, as a result of prenatal injuries, its estate could not recover under the wrongful death statute. Dietrich was a very influential decision and was to be followed in nearly every jurisdiction for the next sixty years. So much so that the 4th edition of Black's Law Dictionary (the edition that was in circulation at the time Roe was promulgated) cited to Dietrich in its definition of the word person: "[a] child en ventre sa mere is not a person." Now then, if at the time Roe was written the traditional rule of tort law, exemplified by Dietrich, had been "changed in almost every jurisdiction," would that mean that almost every jurisdiction had conversely recognized the unborn child as a "person"? Yes, exactly! Forty-eight states had recognized the unborn child as being a separate legal entity from his mother at the time of Blackmun's opinion in Roe. Section I will examine a number of cases that laid the groundwork for rejecting Dietrich and Section II will study the cases that did repudiate Dietrich. Then, in Section III, the treatises Blackmun cited will be reviewed and his treatment of them critiqued and will be found woefully inadequate. Indeed, it is this author's belief that the reader will be left with the distinct impression that Blackmun "intentionally misstated the law."" Why Blackmun dissembled in reviewing prenatal tort and wrongful death law will become apparent in Section IV, wherein the personhood issue is more fully discussed.

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