Skip to main content

John Whitehead's Commentary

When Does An Unborn Child Become A Human Being?

John Whitehead
When does a fetus become a human being, protected by law? Pro-life advocates assert that, morally speaking, life begins at conception. Legally speaking, however, the question of fetal personhood is widely debated and the answer equally as varied. A recent ruling by a Wisconsin appellate court-that "the term 'human being' was not intended to refer to the unborn child"-has fueled the ongoing debate as to when an unborn child can be protected by law.

The case in Wisconsin involved Deborah Zimmerman, an expectant mother in her ninth month of pregnancy who attempted to kill her unborn child by consuming vast quantities of alcohol. Having spent the day in a bar drinking heavily, Zimmerman was taken to the hospital for an emergency C-section. Zimmerman, whose blood-alcohol content was three times the legal limit, told a nurse, "I'm just going to go home and keep drinking and drink myself to death, and I'm going to kill this thing because I don't want it anyway." The child, a little girl given the name Meagan, was born alive but was severely undersized and had irregular features indicative of fetal alcohol syndrome. The baby's blood alcohol content at birth was twice the legal limit for an adult under the state's driving statutes. Three years ago, Circuit Judge Dennis Barry refused to dismiss the attempted first-degree intentional homicide and first-degree reckless injury charges against Zimmerman. Judge Barry found that there was "no question that the young victim was born alive and qualifies as a human being under Wisconsin's homicide laws." Then he raised an important question: "Others who endanger life by acting under the influence of alcohol or drugs are held accountable for their behavior, including parents who jeopardize the safety of their children. Why should a woman carrying a viable fetus escape responsibility for an intentional or reckless act?" The answer, according to the Wisconsin appeals court, is that an unborn child, regardless of viability, is not recognized as a "human being" under state criminal statutes. The appeals court rationalized that "the decision whether to include an unborn child in the definition of a 'human being' is a policy issue best addressed by [the] legislature."

Abortion proponents who fear that legislation extending legal protection to viable unborn children would erode abortion rights are loudly attacking it. They claim that legal protection of the fetus equates to state intervention and interference with the mother's rights.

The idea of "policing" pregnant women is somewhat reminiscent of an Orwellian, big-brother state. However, approximately 12,000 children are born each year with drug addictions and fetal alcohol syndrome. This appalling figure illustrates the need for laws that extend protection to children in utero. In spite of a person's beliefs concerning abortion, abuse of a fetus-deliberately inflicted by a mother upon her unborn but viable child-is more appalling than any potential infringement upon a woman's rights that may result from protective legislation.

The Zimmerman case prompted two new laws in Wisconsin governing fetal homicide. In June of 1998, the governor signed a law enabling a judge to keep an expectant mother in a hospital, home of a relative or community-treatment program if her drug or alcohol abuse, if left untreated, could endanger the unborn child. This law recognizes the importance of protecting the unborn child but focuses on treatment, not punishment.

Under the second law, anyone who assaults a pregnant woman, and as a result causes death or injury to the unborn child, can be sentenced to life in prison. Unfortunately, life-threatening actions by the mother against her unborn child are specifically exempt by this law. Thus, a mother who attempts to kill her newborn, seconds after the baby's birth, could be charged with attempted homicide. Yet, according to the letter of the law as interpreted by the Wisconsin appeals court, if that same mother attempts to kill the child seconds before birth, it would not constitute attempted homicide because the unborn child is "not a human being."

Obviously, it is time for uniform protection of unborn children who are suffering deadly abuse at the hands of their mothers and others. Unborn children, because they are unable to help themselves, are a silent minority in need of legal protection.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact to obtain reprint permission.



Copyright 2023 © The Rutherford Institute • Post Office Box 7482 • Charlottesville, VA 22906-7482 (434) 978-3888
The Rutherford Institute is a registered 501(c)(3) organization. All donations are fully deductible as a charitable contribution.