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(LifeSiteNews) — The Supreme Court on February 20 denied a motion to recognize unborn babies as a class of interested parties when it reviews abortion pill “safety” this month in the case of FDA v. Alliance for Hippocratic Medicine. Abortion pills are used in more than half of all U.S. abortions and there is no justification to ignore the safety of such a key group, the innocent victims.

The Court’s refusal to hear from an attorney representing the unborn would not have been surprising under the old Roe v. Wade regime since Roe required the rights of the unborn to be ignored. But the Court in its 2022 Dobbs ruling voided Roe and allowed states to give a right to life to the unborn. Since then, many states have done just that. So why is the Supreme Court still denying any legal status to the unborn?

We hope, of course, that the Court will still rule against the abortion pill based on its many dangers for the mother. But the Court seems to be signaling that the unborn victims of abortion have no say in whether those pills are “safe” for them, despite the overturn of Roe, and even though doctors for pregnant women have always known they are caring for two patients, both mother and baby.

Court rules require that all “necessary parties” be joined in a case in order to protect their interests. This generally includes any person whose interest in a case may be impaired depending on the outcome. Preborn babies, whose very lives are at stake in this case, are the epitome of a party who should be given their day in Court.

The recent 2022 Dobbs case declared that Roe was wrongly decided, void from the start, and it allowed the states to enact legal rights to life for the unborn. The Court and the FDA should not be allowed now to disregard those state rights for the unborn, especially when a big issue in the current case is whether abortion drugs can be shipped from one state to another.

To be clear, Roe’s reversal in 2022 means there was no Constitutional right to abortion in the year 2000 when the FDA first approved the abortion pill. The Dobbs case did not “repeal” Roe as if Roe was some kind of “law.” Rather, Dobbs held that “Roe was egregiously wrong,” void from the start. There never was any Constitutional right to abortion so any FDA decisions disregarding the rights of the preborn should be voided as well.

At this juncture, with Roe gone, the Supreme Court should be going back to past Court decisions that acknowledged the right of unborn children to be represented in Court when those children have a personal stake in the outcome of a case.

It would be nothing new for a Court to appoint a representative for unborn interested parties. The Supreme Court in the 1884 case of McArthur v. Scott held that the unborn descendants of a deceased U.S. Army general were entitled to legal representation in a case involving inheritance and property rights. And a 1964 case from New Jersey (Raleigh Memorial Hospital v. Anderson) appointed a guardian for an unborn child to consent to its mother’s blood transfusions.

Some might argue that the Supreme Court is simply refraining from taking any position on abortion after Dobbs. But that would not justify ignoring longstanding legal principles that protect unborn children, even if the Court does not want to recognize them as fully human “persons.” Even Roe acknowledged a legitimate interest in preserving what it called “potential human life.”

Legal protections for a woman’s future descendants can be found in numerous and diverse areas of the law, including:

  1. Inheritance rights. Trust and estate laws commonly seek to protect the financial interests of unborn and future heirs, even potential heirs not yet conceived. Justice Blackmun in the Roe case acknowledged that “unborn children have been recognized to have rights or interests by way of inheritance or other devolution of property, and they have been represented by guardians ad litem.”
  1. Workers compensation and wrongful death suits in many cases allow unborn children to be compensated for the injury or death of a parent.
  1. Social Security and federal employees’ survivor benefits may be available to a child not yet born when his or her parent dies.
  1. The Federal Employers’ Liability Act allows an apportionment of damages to a child not yet born at the time of its father’s accidental death.
  1. Representatives may act on behalf of unborn children as claimants under the Aid to Families with Dependent Children program (AFDC.)
  1. Every state has some version of a law against “feticide,” the killing of “wanted” unborn children, and many states now outlaw abortions with narrow exceptions. With Roe gone, there is no federal right to abortion, so there is no justification for the Court to favor the pro-abortion side in barring the unborn from participating in a case against the FDA.

Our judicial system assumes that every interested party deserves his day in Court in order to achieve a fair result. This foundational legal principle was put on hold in abortion cases after the Roe decision, including when the FDA approved the supposed “safety” of abortion drugs without considering the rights of the unborn. But with Roe now gone, and especially with the preborn having a right to life in many states, there is no reason for the FDA or the Court to disregard the interests of the unborn in evaluating drug safety.

So why is the Supreme Court still refusing to hear from a representative for the unborn now that Roe is gone? With such an essential party excluded, let’s hope this is not just a show trial.

Perhaps the justices are tainted by a lingering Roe bias, the ghost of Roe. The fictional right to abortion over so many years has seriously contaminated our legal traditions and blackened the judicial psyche with a warped set of precedents invented to marginalize the unborn.

Hopefully, the Supreme Court will still rule against the abortion pills in this case based on their dangers to the mother. But let’s also hope that the Court will increasingly respect state rights for the unborn and realize what it means for Roe to be gone in their future decisions.

David Bjornstrom is a retired California attorney and member of the U.S. Supreme Court bar. Nothing in this article is to be considered legal advice or an examination of the law or passing upon the legal effect of any act, document or law.