Fetal Rights

The late U. S. Supreme Court Justice Oliver Wendell Holmes (1841-1935), married but childless, had a lifelong professional interest in pregnant women. When he was two (1843) and again when he was 14 (1855), his father, Dr. Oliver Wendell Holmes (Autocrat of the Breakfast Table), initiated campaigns to make doctors wash their hands before attending women in labor. And it was Judge Holmes who ruled from the Massachusetts bench in 1884 that "during the gestation period, the child is part of his mother's bowels," and therefore is not an individual capable of being injured in an accident.

Last week a Chicago judge reluctantly used the old Holmes decision, only precedent in U. S. jurisprudence on this phase of the legal status of fetuses, to deny $100,000 damages to a Mrs. Theresa Joller Smith, who had sued Dr. Albert E. Luckhardt and Radiologist Isador Simon Trostler. Thirteen years ago, she claimed, Dr. Luckhardt diagnosed a lump in her abdomen as a tumor and the radiologist treated her with X-rays. The "tumor" turned out to be a baby whose head the X-rays had caused to harden unduly soon. Result was an imbecile who lived until last October.

Although the Holmes precedent compelled Judge Harry M. Fisher to deny Mrs. Smith's claim, he advised her to appeal to higher courts, because: "I think, personally, that Justice Holmes was wrong. . . . The law elsewhere recognizes an unborn child as an individual. A woman who causes an abortion upon herself, or a doctor who performs such an operation can be charged with manslaughter--the unlawful killing of a human being."

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