JACKSON, Miss. — Mississippi justices who issued a ruling declaring an unborn baby a person were in disagreement over whether their ruling would affect Roe v. Wade.

But pro-life legal experts point out that the decision is part of a growing body of case law defining the humanity and rights of unborn babies that is set on a collision course with the 1973 U.S. Supreme Court decision that allowed for abortion on demand.

The Mississippi State Supreme Court, in an Aug. 21 decision, recognized unborn babies as persons at the time of “quickening” and allowed wrongful-death suits to be brought on their behalf.

One of the state's presiding justices who dissented in the case called the decision “an attempt to limit and even do away with Roe v. Wade.”

“The majority's holding will no doubt cause waves with existing civil and criminal law and in particular Roe v. Wade,” wrote the justice, Chuck McCrae.

Justice James Smith, on the other hand, insisted in the majority opinion that his holding does not touch upon Roe.

Thirty-six states and the District of Columbia have wrongful-death statutes that cover unborn babies at some stage of development, with most drawing the line at viability, according to the National Right to Life Committee.

On the federal level, efforts to protect babies in the womb include the Unborn Victims of Violence Act, which is stalled in the Senate, and the Bush administration's expansion of the Children's Health Insurance Program to include the prenatal care of what it calls “unborn children.”

Abortion advocates fight these and similar initiatives as back-door efforts to overturn Roe.

“Anytime the fetus is recognizable as a person it chips away at the foundation of Roe,” commented Sondra Goldschein of the American Civil Liberties Union.

The Mississippi decision is “a very significant case in which a state high court finds that an unborn child is a person with rights akin to everyone else,” said Mathew Staver, president and general counsel of Liberty Counsel in Orlando, Fla., a legal advocacy group for family and pro-life values. “The judge may say that the decision doesn't affect Roe because different issues are being considered, but the logic of the decision contradicts Roe's finding that the unborn child is only potential life and we do not know when human life begins. These sort of cases will build up to eventually crush Roe.”

Nikolas Nikas, general counsel of Chicago-based Americans United for Life, concurred. “This is simply a recognition that Roe v. Wade does not apply, and was never intended to apply, to any situation outside of abortion,” he told LifeNews.com.

The 6-2 decision by the Mississippi high court affirmed the right of Tracy Tucker to bring a wrongful-death suit for the 1997 miscarriage of her 19-week-old unborn baby. The majority applied state criminal law to the tort case to expand the point at which an unborn baby is protected as a person, moving the “bright line” of legal protection from viability to “quickening.” The court defined the latter as the time at which the child in the womb begins to move and left the determination of when a child becomes “quick” to the jury in the case.

In stating that the “abortion question simply is not relevant to wrongful death” and that “Roe is not implicated here,” Smith sought to limit the reach of Roe. He claimed that Roe defines the right of a woman to abort in the narrow terms of her “liberty interest” and “fundamental right to privacy.”

When an outside party attacks a child in the womb, the attacker does not enjoy these rights in relation to the unborn baby, and the rights of the child must then be taken into account, the justice argued. Abortion is such a unique case that special standards need to be drawn to address the case of a mother wishing to kill her unborn baby that must not be applied to other situations, Smith said.

“This is the kind of reasoning that more and more is isolating Roe, surrounding it with a noose that will squeeze it out of existence,” said Staver of Liberty Counsel. “Basically, the body of case law as it now stands says that if a mother kills her baby, the child is not a person. But if someone other than the mother kills the baby, the child is a person who has rights and grievances. That's illogical.”

Quickening?

In a concurring opinion, Justice Kay Cobb argued that a child in the womb should be recognized as a person from the time of conception, since the time of “quickening,” as with viability, is difficult to establish and varies from pregnancy to pregnancy.

“I would extend the rights of the unborn to a less-arbitrary moment in the life of a human being, that moment being when a separate life begins at conception,” Cobb wrote. A criminal “should not be able to walk away with impunity for causing the death of an unborn child not yet quick, while that party would be liable for damages if that child were to survive with grave injuries or even [suffer] death after birth.”

Warning of the threats to Roe, McRae stated in his dissent, “Under the majority's holding, a father who is unaware and does not consent to his wife's abortion may now institute wrongful-death action for the death of the ‘quickened’ fetus. … A physician may now be held liable not only in tort for the abortion of a ‘quick child’ but also through criminal indictment and prosecution.”

That's something pro-lifers might applaud.

Stephen Vincent is based in Wallingford, Connecticut.