The argument from the Texas attorney general’s office appears to be in tension with positions it has previously taken in defending abortion restrictions, contending all the way up to the U.S. Supreme Court that “unborn children” should be recognized as people with legal rights.

It also contrasts with statements by Texas’ Republican leaders, including Gov. Greg Abbott, who has touted the state’s abortion ban as protecting “every unborn child with a heartbeat.”

The state attorney general’s office did not immediately respond to questions about its argument in a court filing that an “unborn child” may not have rights under the U.S. Constitution. In March, lawyers for the state argued that the guard’s suit “conflates” how a fetus is treated under state law and the Constitution.

“Just because several statutes define an individual to include an unborn child does not mean that the Fourteenth Amendment does the same,” they wrote in legal filing that noted that the guard lost her baby before the U.S. Supreme Court overturned the federal right to an abortion established under its landmark Roe v. Wade decision.

That claim came in response to a federal lawsuit brought last year by Salia Issa, who alleges that hospital staff told her they could have saved her baby had she arrived sooner. Issa was seven months’ pregnant in 2021, when she reported for work at a state prison in the West Texas city of Abilene and began having a pregnancy emergency.

Her attorney, Ross Brennan, did not immediately offer any comment. He wrote in a court filing that the state’s argument is “nothing more than an attempt to say — without explicitly saying — that an unborn child at seven months gestation is not a person.”

While working at the prison, Issa began feeling pains “similar to a contraction” but when she asked to be relived from her post to go to the hospital her supervisors refused and accused her of lying, according to the complaint she filed along with her husband. It says the Texas Department of Criminal Justice’s policy states that a corrections officer can be fired for leaving their post before being relived by another guard.

Issa was eventually relieved and drove herself to the hospital, where she underwent emergency surgery, the suit says.

Issa, whose suit was first reported by The Texas Tribune, is seeking monetary damages to cover her medical bills, pain and suffering, and other things, including the funeral expenses of the unborn child. The state attorney general’s office and prison system have asked a judge to dismiss the case.

Laura Hermer, a professor at the Mitchell Hamline School of Law in St. Paul, Minnesota, described Texas’ legal posture as “seeking to have their cake and eat it too.”

“This would not be the first time that the state has sought to claim to support the right to life of all fetuses, yet to act quite differently when it comes to protecting the health and safety of such fetuses other than in the very narrow area of prohibiting abortions,” Hermer said.

Last week, U.S. Magistrate Judge Susan Hightower recommended that the case be allowed to proceed, in part, without addressing the arguments over the rights of the fetus.