Legal Rights of Unborn Children in North Carolina As Published By the News & Observer on July 13, 2003 by Paul Stam
For any reason at all a mother can authorize a licensed doctor, of any specialty or of no specialty, to end the life of her unborn child up until the time she gives birth. Statutory limitations on the reasons or the gestational age have been unenforceable for several decades now. But the press persists in reporting that there are limits. There are not.
Paradoxically, while the unborn child's life is protected not at all, her rights to property are protected: The property of a parent dying without a will immediately vests in the unborn child as to real estate and as to personal property since 1809. Since 1839 it has been clear that an unborn child may take property by will. Since 1854 an unborn child can receive and hold title to real estate by a deed. Since 1853 the courts have recognized that an unborn child may take property under a passive trust and since 1860 an unborn child could be the beneficiary of an active trust. Unborn children today have their property rights protected by a guardian ad liten appointed by the Clerk of Court. (But this guardian can not take any action to preserve the unborn child's life.)
Mr. and Mrs. Jones may be eagerly awaiting the birth of the daughter they named Sally after seeing her suck her thumb in real time on ultrasound. Her birth is expected next month. But when a gunman shoots Mrs. Jones so that she is injured and her child dies, the gunman is only guilty of aggravated assault, not of Sally's murder. On the other hand, if Sally survives the assault, the gunman (or a negligent motorist) is liable to Sally for perhaps millions of dollars in damages for her injuries. (I'm really not making all this up.)
The state safeguards us from toxic exposure. But if there is an environmental danger specific only to unborn children an employer can not keep pregnant women away from that danger. That would violate employment rights.
Until children are 18 years of age a parent's consent is needed for almost everything- a field trip to the zoo, piercing of the ears. But a 15 year old can procure an abortion by going to a judge in a distant county asking the judge not to notify her parents but instead to allow complete strangers to operate on her. And our Court of Appeals has ruled that instead of a judge's consent the abortionist can rely on a handwritten "parental" consent without requiring any identification or any authentication and which is actually forged by the child.
(Really, I am not making this up.)
It is standard operating procedure for a patient to be informed of the usual risks before a doctor obtains a patient's consent for surgery. But there are three well documented risks from abortion of which women are not informed.
A recent study conducted at the School of Public Health and School of Medicine at the University of North Carolina at Chapel Hill is published in Obstetrical and Gynecological Survey - (2003) 58(1):67-79. It may be found at www.obgynsurvey.com entitled "Long term physical and psychological health consequences of induced abortion: A review of the evidence."
Dr. John Thorp and Dr. Katherine Hartmann of UNC-CH, and Dr. Elizabeth Shadigian of the University of Michigan concluded their study by recommending that women be told of three consequences of induced abortion:
· "mental health correlates of an increased risk of suicide or self harm attempts as well as depression and a possible increased risk of death from all causes"
· "a decision to abort her first pregnancy may almost double her life time risk of breast cancer through loss of protective effect of a completed first full term pregnancy earlier in life" and "the disputed independent risk of induced abortion on breast cancer risk"
· "risk of subsequent pre-term birth, particularly of a very low birth weight infant"
Although this information will not prevent a mother from aborting her child, it may well give her pause, since she creates additional serious health risks for herself.
Paul Stam practices with the Apex law firm of Stam, Fordham & Danchi, P.A.
He holds a B.S. with High Honors from Michigan State University and the J.D. from the University of North Carolina at Chapel Hill. He is a member of the North Carolina House of Representatives. (2003) 58(1):67-79. It may be found at www.obgynsurvey.com entitled "Long term physical and psychological health consequences of induced abortion: A review of the evidence."
TO NEWS & OBSERVER FOR JULY 13, 2003 ON-LINE SUPPLEMENT TO "Q" LEGAL RIGHTS OF NORTH CAROLINA UNBORN CHILDREN as of JULY 2003
In 1859 the Committee on Criminal Abortion recommended to the American Medical Association a resolution which was unanimously adopted condemning the act of abortion at every period of gestation except as necessary for preserving the life of either mother or child. The reason for the resolution was stated to be the increasing frequency "of such unwarrantable destruction of human life." American Medical Association, Minutes of the Annual Meeting, 1859, 10 The American Medical Gazette 409 (1859). North Carolina did not have an abortion statute at the time because the common law (imported from England as of 1776) made abortion a crime. In STATE v. SLAGLE, Judge Ashe held that abortion was a misdemeanor at common law: "It has been said that it is not an indictable offense . . . unless the mother is quick with child, though such a distinction, it is submitted, is neither in accordance with the results of medical experience or with the principles of the common law." STATE v. SLAGLE, 82 NC 653, 655 (1880). In the second hearing of the case, STATE v. SLAGLE, 83 NC 630 (1880), Chief Justice Smith reiterated the prior holding that abortion was a common law misdemeanor: "The moment the womb is instinct with life and gestation has begun, the crime may be perpetrated." Id. at 632.
N.C. Gen. Statutes 14-44 and 14-45, originally enacted in 1881, raised the crime of abortion to a felony. This was part of a nationwide movement begun by the American Medical Association to protect mothers and their children. And these two statutes are still on the books and still apply if someone other than a licensed doctor tries an abortion on a woman.
However, it is becoming well known that in 1973 the US Supreme Court legalized all abortions which are performed by a doctor. The combination of Roe v Wade, 410 US 113 (1973), Planned Parenthood v Casey, 505 US 833 (1992), and Carhart v Stenberg, 530 US 914 (2000 ) means that this right of a mother, if performed by a doctor, continues even until the child is in the birth canal. Hopefully, by the time this article is read the Congress and the President will have passed into law the Partial Birth Abortion Ban which will push this "right" to an abortion back inside the womb. N.C. Gen. Statute 14-45.1, enacted in 1973 in response to Roe v. Wade, appears to limit the "right" to 20 weeks gestation. But that limit has not been enforceable for decades. Colautti v Franklin, 439 US 379 (1979).
While the Supreme Court of the United States has decided that the unborn child has no right to live, if her mother and the mother's doctor decide otherwise, the unborn child in North Carolina retains extensive property rights.
The property of a parent dying without a will immediately vests in the unborn child. DEAL v. SEXTON, 144 NC 157, 56 SE 691 (1907) (realty); HILL v. MOORE, 5 NC 233 (1809) (personalty). In DEAL a partition proceeding had been brought, and lands sold without making a party an unborn child of the deceased. The lands were sold to a bona fide purchaser for value who had no knowledge of the existence of the unborn child. In securing the child's inheritance the court said at pp 158-159:
If we hold, as we must, that the inheritance vested immediately in the plaintiff while en ventre sa mere, upon the death of the father, the conclusion must follow that such inheritance ought not to be divested and the child's estate destroyed by judicial proceedings to which it was in no form or manner a party; and for which not even a guardian ad litem was appointed. It may be that our civil procedure is defective in not providing for such contingencies, but that is no reason why the vested estate of the unborn child in esse should be taken from it. The general rule in this country and the acknowledged rule of the English law is that posthumous children inherit in all cases in like manner as if they were born in the lifetime of the intestate and had survived him, and for all the beneficial purposes of heirship a child en ventre sa mere is considered absolutely born. This has been the recognized law of this State since HILL v. MOORE, 5 NC 233, decided in 1809.
* * *
"From most remote times the common law of England regarded such child as capable of inheriting direct from the ancestor as much so as if born."
In GRANT v. BUSTIN, 21 NC 77 (1835), it was made clear that only posthumous children conceived before death, (but not those conceived after death) can take by inheritance. In that case a half-brother of the intestate born ten months and a half after death but before distribution, claimed a share along with his older brothers and sisters. The court was careful to point out that the half brother did not claim that he was en ventre sa mere at the date of death. Therefore the court held at pp 77-78:
But the rule, nevertheless, is that the RIGHT to the distributive share vests at the death of the intestate. "'It is said the rule is liable to an exception in the case of a child in ventre sa mere. In truth, however, a child in ventre sa mere is held capable of taking a distributive share, because for all beneficial purposes it is in rerum natura, is regarded as actually in esse.'" The very reason on which these adjudications are founded shows that one not in being, and not considered as in being at the death of an intestate, can, under the statute of distributions, prefer no claim to a share of that intestate's estate. It is not stated in this case, nor can we infer from the facts set forth, that Benjamin Bustin was in ventre sa mere at the death of Patience Pitts, and we therefore hold that he was not entitled to the distributive share claimed for him in her personal estate.
In 1823 the General Assembly enacted as Chapter 32 of the Laws of North Carolina from 1817 to 1825, the following:
No inheritance shall descend to any person, as heir of the person last seized, unless such person shall be in life at the death of the person last seized, or shall be born within ten months after the death of the person last seized.
N.C. Gen. Stat. 29-9 states:
Lineal descendants and other relatives of an intestate born within ten lunar months after the death of the intestate, shall inherit as if they had been born in the lifetime of the intestate and had survived him.
The normal length of pregnancy is 266 days. Keith Moore, The Developing Human (2d ed 1977) p 82. By choosing ten (lunar) months as the cutoff it is apparent that the legislature attempted to provide some certainty as to titles and yet allow the child who is a collateral relative to take from conception with some margin of error for the late pregnancy. The child of an intestate who is born more than 10 lunar months after death of the intestate is still able to take by inheritance if he is indeed the child of the intestate. The common law presumption that pregnancy lasts only ten lunar months is only that, a factual presumption, which may be rebutted by evidence. BYERLY v. TOLBERT, 250 NC 27 at 35, 108 SE 2d 29 (1959).
In the case of wills the common law held that a child, if conceived, could take a vested interest under a devise to "children." FLORA v. WILSON, 35 NC 344 (1852).
In FLORA the testator devised lands to his wife during widowhood and upon her remarriage to her heirs by consanguinity. No children were born to the testator during his lifetime, but after his death and after his widow remarried, she gave birth to a child with whom she was pregnant by the testator. It was held that upon her remarriage, the land vested in the unborn child, and on its death descended to its heirs ex parte paterna.
In the case of deeds, by 1868 the unborn child was capable of taking a vested interest in property by deed as soon as she was conceived. The question arose because of the common law requirement that a deed must be delivered in order to be valid. (similar to enfeoffment by livery of seisen). In DUPREE v. DUPREE, 45 NC 165 (1853), a conveyance was executed on January 9, 1817 to "Washington and Lewis Dupree, sons of Robert and Rachel Dupree, and to the next of their heirs lawfully begotten of their bodies." On October 9, 1817 James Dupree was born to Robert and Rachel and claimed an interest. The court denied his claim stating that an actual delivery was necessary. Id. at 167.
The General Assembly apparently thought so little of the reasoning in DUPREE which would allow an unborn child to take by will, by trust, or by use, but not directly by deed, that at the next opportunity (1854) it enacted a remedial statute, which is now N.C. Gen. Stat. 41-5 and states:
An infant unborn, but in esse, shall be deemed a person capable of taking by deed or other writing any estate whatever in the same manner as if he were born.
While the ability of the unborn child to take as beneficiary of a passive trust is admitted in DUPREE, such a child also could have a property right as beneficiary of an active trust. GAY v. BAKER, 58 NC 344 (1860). And the unborn child must be appointed a guardian ad litem. Rule 17(b)(4) of the Rules of Civil Procedure, when her rights to property are in litigation.
The conclusion is this: For all purposes beneficial to her the unborn child is protected by the law of North Carolina, unless the child's mother procures a doctor to terminate all of the child's rights, including her life.
Does the unborn child have a right to not have the state pay for her demise?
In 1977 Congress virtually ended the practice of using federal taxes to pay for medically unnecessary abortions through the Hyde Amendment. The Governor created a State Abortion Fund effective February 1, 1978 to pay for medically unnecessary (that was the rule for this fund) abortions up to 20 weeks of pregnancy. That spring the Governor took $250,000 that had been appropriated by the legislature for mental health and used these funds to pay for abortions. Later he requested from the General Assembly $1 million per year for taxpayer financed abortions. In 1979 he transferred $303,000 that had been appropriated for rest homes and used that money to pay for medically unnecessary abortions beyond the $1 million the General Assembly had appropriated. In 1980 the Governor again needed more money for abortion than the $1,000,000 the General Assembly had provided. He transferred $367,000 from Aid to Families with Dependent Children to the State Abortion Fund. In 1981 he again needed to find more money for abortion - again transferring $235,000 to increase the abortion fund to $1,235,000 - taking the additional funds from Aid to Families with Dependent Children.
James Martin served two terms as governor from 1985 - 1993. During these years abortion funding was reduced to $924,000 in 1985-1989 and then to $424,000/year from 1989-1993.
When another Governor took office for a third term in 1993 abortion spending tripled at his request with yearly totals of $1,212,000.00 until 1995. In 1995 the General Assembly, for all practical purposes, ended the state abortion fund and ended North Carolina's 17 year history as the only southern state to pay for elective abortions as part of its welfare program.
As a consequence of varying criteria and funding levels the number of abortions funded by the State Abortion Fund since its inception were:
No. of Fiscal Year Abortions Fiscal Year Abortions
1977 - 1978 1123 1992 - 1993 2132 1978 - 1979 6125 1993 - 1994 4448 1980 - 1981 5730 1994 - 1995 4587 1981 - 1982 4295 1995 - 1996 0 1982 - 1983 6149 1996 - 1997 1 1983 - 1984 6645 1997 - 1998 0 1984 - 1985 6564 1998 - 1999 0 1985 - 1986 2662 1999 - 2000 0 1986 - 1987 4181 2000 - 2001 0 1987 - 1988 3600 2001 - 2002 0 1988 - 1989 4137 2002 - 2003 0 1989 - 1990 1921 1990 - 1991 2330 1991 - 1992 2156
See P.J. Cook, "The effects of short-term variation in abortion funding on pregnancy outcomes" Volume 18, Issue 2, Journal of Health Economics 241 at 247 (April, 1999) and Division of Social Services.
These numbers do not include a few paid under the federal Medicaid program. In 1997 Medicaid funds paid for 59 abortions based on rape, 2 cases involving incest and 5 cases involving danger to the life of the mother. By 2002-2003 these had dwindled to less than a dozen where rape, incest, or danger to the life of the mother was alleged. That is still the criteria for the use of Medicaid funds.
In Williams v. Zbaraz, 448 U.S. 358 (1980) the U.S. Supreme Court held that the federal constitution did not require taxpayer financed abortions. And the "Hyde Amendment" contains no requirements to pay for abortion greater in scope than current North Carolina law. For example see 112 Stat. 2681-385, Public Law 105-277, Section 508 and 509 , Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act, October 21, 1998 which provides as follows:
Sec. 508 (a) None of the funds appropriated under this Act and none of the funds in any trust fund to which funds are appropriated under this Act shall be expended for any abortion. (b) None of the funds appropriated under this Act shall be expended for health benefits coverage that includes coverage of abortion. (c) The term "health benefits coverage" means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.
Sec. 509 (a) The limitations established in the preceding section shall not apply to an abortion-(1) if the pregnancy is the result of an act of rape or incest; or (2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed. (b) Nothing in the preceding section shall be construed as prohibiting the expenditure by a State, locality, entity, or private person of State, local, or private funds (other than a State's or locality's contribution of Medicaid matching funds). (c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider from offering abortion coverage or the ability of a State or locality to contract separately with such a provider for such coverage with State funds (other than a State's or locality's contribution of Medicaid matching funds).
During the early days of the Hyde Amendment an argument was advanced that restricting state abortion funding would increase the number of abortion related complications due to an increase in resort to illegal abortions. That projection did not materialize. The Center for Disease Control reviewed 600 consecutive hospital charts of women in Texas with abortion related complications that caused them to seek emergency medical care. Texas was one of the 31 states that had ended the use of state funds for abortion. "The chart review revealed no increase after the restriction, compared to the time interval before the restriction, in either the number or proportion of Medicaid or Title XX - eligible women admitted for abortion complication." Morbidity and Mortality Weekly Report, Vol. 29, No. 22, June 6, 1980.
Denial of tax funds for abortion probably does not increase the actual number of children born for this reason: If a permanent prohibition on state abortion funding is in place investigators believe that it probably reduces fertility sufficiently to offset the number of births!
"To the extent that it is known in advance, the cost of obtaining an abortion may also influence the initial decisions regarding sex. The vast increase in abortions following legalization in the early 1970s was associated with a far-smaller reduction in births, indicating (together with direct evidence on sexual practice) that there was a considerable 'moral hazard' effect from legalization. . . . "
For women who did not want a baby but were willing to abort if pregnant, legalization reduced the expected cost of taking a chance of becoming pregnant. The result was a large increase in unwanted pregnancies. . . .
"A number of authors have pointed out a possible paradoxical effect on birth rates. While reducing the cost of abortion reduces the probability of birth given pregnancy, the pregnancy rate may increase by enough to more than compensate. . . . Hence the effect of abortion costs on the birth rate is indeterminate."
P.J. Cook et al. "The effects of short-term variation in abortion funding on pregnancy outcomes" Volume 18, Issue 2, Journal of Health Economics 241 at 243 (April, 1999).
In Rosie J. v. N.C. Department of Human Resources, 347 NC 247, 491 S.E.2d 535 (1997) the North Carolina Supreme Court held that there was no state constitutional right to state funded abortions.
Effective July 1, 1995 the North Carolina General Assembly had restricted eligibility for payment from the state abortion fund to cases where the pregnancy resulted from "cases of rape or incest or to terminate pregnancies that, in the written opinion of one doctor licensed to practice medicine in North Carolina, endanger the life of the mother". 1995 NC Session Laws Chapter 324 Section 23.27 (Budget for FY 1995-1997) as clarified by 1995 NC Session Laws Chapter 507 Section 23.8A. For current law see Section 10.54 of the 2003-2005 State Budget.
"Rosie J.", as well as an abortion clinic, Raleigh Womens Health Organization and a doctor who performs abortions, John Marks, claimed that under the State Constitution tax paid abortion was guaranteed under Article I, Section 1 "life, liberty" clause, Article I, Section 19, "law of the land" and "equal protection" clause and Article XI, Section 4. ("Beneficent provision for the poor, the unfortunate and the orphan is one of the first duties of a civilized and a Christian state. Therefore the General Assembly shall provide for and define the duties of a board of public welfare.") The North Carolina Supreme Court did not think that these provisions of the state constitution really spoke to tax paid abortions.
While the preborn children of the poor now have a statutory right not to have North Carolina pay for their elimination, other preborn children are not so fortunate. The State Heath Plan had continued to spend millions of dollars in state funds for elective abortions, a practice ended by the Federal government with passage of the DeWine Amendment. Eleven of our sister states also prohibit this practice.
A recent study conducted at the School of Public Health and School of Medicine at the University of North Carolina at Chapel Hill underscores some additional rights that the unborn child should have. It is published in the Obstetrical and Gynecological Survey - (2003) 58(1):67-79 and may be found at www.obgynsurvey.com and is entitled "Long term physical and psychological health consequences of induced abortion: A review of the evidence."
Dr. John Thorp and Dr. Katherine Hartmann of UNC-CH, and Dr. Elizabeth Shadigian of the University of Michigan concluded their study by recommending that women be told of the following long term physical and psychological health consequences of induced abortion:
- "mental health correlates of an increased risk of suicide or self harm attempts as well as depression and a possible increased risk of death from all causes" Pg. 15.
- "a decision to abort her first pregnancy may almost double her life time risk of breast cancer through loss of protective effect of a completed first full term pregnancy earlier in life" and "the disputed independent risk of induced abortion on breast cancer risk" Pg 16, 14.
- "risk of subsequent pre-term birth, particularly of a very low birth weight infant" Pg. 16
Although this information will not prevent a mother from (to use a euphemism) -terminating her pregnancy it may well give her pause, knowing that in aborting her child she creates additional serious health risks for herself.
Paul Stam practices with the Apex law firm of Stam, Fordham & Danchi, P.A.
He holds a B.S. with High Honors from Michigan State University and the J.D. from the University of North Carolina at Chapel Hill. He is a member of the North Carolina House of Representatives. For more information see "The End of the North Carolina Abortion Fund" and can be found at 22 Campbell Law Review 119 (Fall 1999) (end)
Paul Stam represents the 37th district in the North Carolina House of Representatives.