The Texas attorney general’s office is facing criticism for purportedly contradicting its previous pro-life advocacy by arguing that a state prison employee’s preborn child wasn’t protected by the 14th Amendment before the Supreme Court overturned Roe.
The employee, Salia Issa, was reportedly told to wait before leaving her post despite experiencing intense pain she thought was a contraction. She eventually got to the hospital but doctors were unable to find a heartbeat and her baby was delivered stillborn. Her lawsuit alleged that the Texas Department of Criminal Justice (TDCJ) “subjected the unborn child to state-occasioned damage to its bodily integrity, thereby violating the Due Process Clause of the Fourteenth Amendment.”
Another part argues that the TDCJ “deprived the unborn child of its right to life, thereby violating the Due Process Clause of the Fourteenth Amendment.” It also claims the TDCJ put the child through a “cruel and inhumane death, whereby the child slowly died in the womb.”
Earlier this month, the Texas Tribune and Associated Press reported on the case while contrasting Attorney General Ken Paxton’s previous statements on the issue with his office’s legal filings. More specifically, they pointed to arguments from January and March filings that read in part:
- “Just because several statutes define an individual to include an unborn child does not mean that the Fourteenth Amendment does the same.”
- “This Court need not weigh into the difficult question of whether, post-Dobbs, an unborn child possesses constitutional rights under the Fourteenth Amendment. Even if he or she does, that right was not clearly established on November 15, 2021.”
As the AG’s filing notes, the Supreme Court’s decision in Roe, which was in effect during Issa’s pregnancy, opines that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” It wasn’t until June of 2022 that the Court overturned Roe while effectively delegating the issue to states, rather than asserting a right to life under the 14th Amendment.
The AP noted that, “[t]he argument from the Texas attorney general’s office appears to be in tension with positions it has previously taken in defending abortion restrictions, contending all the way up to the U.S. Supreme Court that ‘unborn children’ should be recognized as people with legal rights.”
“It also contrasts with statements by Texas’ Republican leaders, including Gov. Greg Abbott, who has touted the state’s abortion ban as protecting ‘every unborn child with a heartbeat.’”
Issa’s attorney, Ross Brennan, reportedly said in a filing that the state’s argument was “nothing more than an attempt to say — without explicitly saying — that an unborn child at seven months gestation is not a person.”
The AG’s office received hypocrisy accusations on Twitter as well while the Tribune quoted legal historian Mary Ziegler as saying, “[i]t seems sort of weird for the state to say, ‘We’ve spent decades saying Roe v. Wade was a horrible violation of human rights. But back in 2021, this violation of human rights allowed us not to get this employee relief.’”
Paxton’s office did not respond to Live Action News’ request for comment.
According to the Tribune, U.S. Magistrate Judge Susan Hightower recommended earlier this month that a district court take up Issa’s claims that she faced discrimination from the state. However, Hightower said the court shouldn’t weigh in on whether a fetus is a person and that Issa’s case didn’t do enough to show the state intentionally caused her child’s death.
