On Tuesday, October 11, 2022, the Supreme Court of the United States declined to hear the appeal of a case from the Rhode Island Supreme Court, which asked the court to answer whether fetuses are entitled to rights under the due process and equal protection clauses of the 14th Amendment to the United States Constitution, and whether they have standing to bring suit. A Catholic group and two pregnant women originally brought the case in 2019 to challenge Rhode Island's law guaranteeing its citizens a right to abortion. The Rhode Island Supreme Court upheld that law in its May 2022 decision, relying in part on Roe v. Wade, to find that fetuses are not entitled to protection under the 14th Amendment and that they were not "persons" who could bring legal claims. With the Supreme Court's Dobbs decision overturning Roe v. Wade, the plaintiffs in the case appealed that state court decision to the Supreme Court, asking it to consider its claims in light of Dobbs, as opposed to the Roe framework.
While the Supreme Court's decision to deny certiorari and decline to take up the case was not accompanied by a written decision, the facts do not necessarily imply that the Supreme Court agrees with the Rhode Island Supreme Court's ruling, which is unaffected. We expect that this case is an early example of "personhood" litigation, as some states look to restrict contraception and limit IVF, in addition to banning abortion, or otherwise rely on the constitutional rights of unborn fetuses to enact their legislative agenda. As recently as July of this year, an Arizona District Court judge blocked a 2021 Arizona law that had granted "personhood" to fetuses, embryos and fertilized eggs.
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