Legal News

Unearthed: Obama?s Early View on the Right of a Fetus

By Dan Slater

TORT LAW - PRENATAL INJURIES - SUPREME COURT OF ILLINOIS REFUSES TO RECOGNIZE CAUSE OF ACTION BROUGHT BY FETUS AGAINST ITS MOTHER FOR UNINTENTIONAL INFLICTION OF PRENATAL INJURIES. — Title of Barack Obama’s unsigned student note for the Harvard Law Review (1990), published a month before he became president of The Review

Finally, evidence that Barack Obama did, in fact, take a stab at legal scholarship. Politico has turned up an unsigned — and previously unattributed — 1990 article.

The six-page summary reportedly considers the question of whether fetuses should be able to file lawsuits against their mothers. Obama concluded that the answer was no, and cited approvingly an Illinois Supreme Court ruling, Stallman v. Youngquist, that the unborn cannot sue their mothers for negligence, suggesting that allowing fetuses to sue would violate the mother’s rights and could cause her to take more risks with her pregnancy.

He reportedly ends the article with the following: “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.”

Obama spokesman Ben LaBolt wrote to Politico in an e-mail:

Like most second-year law students on the Harvard Law Review, Senator Obama wrote an unsigned student case comment that summarized a recent decision by a state or lower federal court. The piece analyzed a case in which a mother was sued by her child for injuries caused by the mother’s negligent driving during her pregnancy. Senator Obama concluded that, in such cases, the Illinois Supreme Court was correct not to allow lawsuits by children against their mothers. He wrote that the best way to protect the health of fetuses was to provide prenatal education and health care to pregnant women - issues he remains committed to today and which he has worked to advance as a legislator and in this campaign.

LB Footnote: A footnote to Obama’s article reportedly explains the facts of Stallman, the Illinois case: Bari Stallman was involved in a car accident in 1981 with Clarence Youngquist. Her daughter, Lindsey, was born with severe injuries from the wreck, and so Stallman’s husband, acting for the baby, sued both his wife and Youngquist for negligence, hoping to recover damages from their insurance companies. The Illinois Supreme Court held that the fetus doesn’t have the right to sue its mother, warning that allowing a fetus to sue its mother could make them “legal adversaries from the moment of conception until birth.”

UPDATE: Thanks to Paul Caron over at Tax Prof Blog, you can read Obama’s case comment here.

Full post as published by Law Blog - WSJ.com on August 22, 2008 (boomark / email).