When the action of a state agent results in the deprivation of the federal rights of any “person” within the jurisdiction of the United States, that person may bring a civil action under 42 U.S.C. § 1983. In Roe v. Wade, the Supreme Court held that a fetus is not a constitutional “person.” As a result, an unborn child injured by a state agent may not raise a claim under § 1983. This result, however, has at times appeared unjust. The bar on fetal 1983 claims has obstructed access to state-funded prenatal care, denied fetuses the protection of the police, and insulated state agents from liability where their reckless or abusive actions have resulted in physical injuries to the unborn.
Conceding that the language of Roe presents a virtually insurmountable obstacle to fetal 1983 actions, this Comment argues that neither the facts nor the reasoning of Roe logically support a regime that refuses to compensate unborn children for injuries occasioned by state actors. This Comment proceeds to analyze how the prohibition on fetal 1983 claims generates legal inconsistencies and is unsound from a policy perspective. A principled examination of the unavailability of damages to compensate for in utero injuries reveals that the longstanding bar on fetal 1983 claims should be reconsidered.