The six-page summary, tucked into the third volume of the year's Harvard Law Review, considers the charged, if peripheral, question of whether fetuses should be able to file lawsuits against their mothers. Obama's answer, like most courts': No. He wrote approvingly of an Illinois Supreme Court ruling that the unborn cannot sue their mothers for negligence, and he suggested that allowing fetuses to sue would violate the mother's rights and could, perversely, cause her to take more risks with her pregnancy.I looked up the article and can assure you that the last line has the word "into" and not "in to," so hold your mockery on that point. And the case he's writing about, Stallman v. Youngquist, did not involve a fetus that survived abortion. A child was born with injuries caused in the womb when the mother had a car accident. But the issue of abortion is in the background and the subject comes up in the penultimate paragraph, which reads:
The subject matter took Obama to the treacherous political landscape of reproductive rights, and - unlike many student authors - he dived eagerly into the policy implications of the court decision. His article acknowledged a public interest in the health of the fetus, but also seemed to demonstrate his continuing commitment to abortion rights, and suggested that the government may have more important concerns than "ensuring that any particular fetus is born."
And he concluded the article with a flourish: "Expanded access to prenatal education and heath care facilities will far more likely serve the very real state interest in preventing increasing numbers of children from being born in to lives of pain and despair."
Most proponents and critics of the creation of a fetus' right to sue its mother agree that the approach taken in the Supreme Court's abortion decisions -- balancing a woman's right to privacy and bodily autonomy against the state's interest in protecting the fetus -- provides a starting point for analyzing the constitutionality of fetal-maternal tort suits. Commentators also agree that courts should weigh these interests differently in cases where a woman has decided to carry her pregnancy to term, and that the issue of fetal-maternal tort suits therefore demands a separate doctrinal framework. For example, fetal-maternal tort suits might entail far more intrusive scrutiny of a woman's behavior than the scrutiny involved in the discrete regulation of the abortion decision. On the other hand, the state may also have a more compelling interest in ensuring that fetuses carried to term do not suffer from debilitating injuries than it does in ensuring that any particular fetus is born.Be very careful here. That last line, that "flourish," as Politico has it, about "preventing increasing numbers of children from being born into lives of pain and despair," is not an expression of enthusiasm for aborting children who, if born, would have an unfortunate life. It refers to encouraging pregnant women to take care so that their children are not injured in utero and will be born into a happier life. Note too, that the lawsuit is really about the injured child getting access to the mother's insurers.
What is odd is that up until now, we'd been led to think that Obama, despite his stature as president of the Harvard Law Review, had never written anything. Once Politico tracked down the article, the campaign acknowledged that Obama had written it. But why the urge to suppress it? Obama took knocks for his supposed failure to produce any legal scholarship. It seems that abortion is just not something he wants to have to talk about.
ADDED: Eugene Volokh makes a nice point about the legal issue:
Pretending for a moment that we actually care about the article as an article, my one suggestion would have been to pay a bit more attention to the risk of collusive lawsuits: Since the fetus-mother lawsuit would usually make sense only if the mother has liability insurance -- as many people do, just under their auto insurance or homeowner's insurance policies -- there would be very great temptation in an injury case for the mother to overstate her possible negligence, so the fetus gets more money from the insurance company. I imagine many a person, even one who is ordinarily quite ethical, might find this temptation hard to resist in a case such as this one, when it's a matter of helping one's family (especially when the family will be facing huge medical or supplemental care bills as a result of the injury) at the expense of a faceless insurance company. The article mentions the insurance factor as a reason to worry about generally higher premiums for pregnant women, but not the collusive lawsuit concern.Obama refrained from saying something negative about women and from highlighting the interests of the insurance companies.