Analysis | Is a Fetus a Person? The Next Big Abortion Fight Centers on Fetal Rights



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Personhood — the concept of granting legal rights to the unborn at conception or a couple of months after — is shaping into the next battleground in the fight over abortion rights in the US. In the wake of the Supreme Court’s June decision overturning the constitutional right to abortion, old state rules recognizing fetuses as people have new potency, and conservative state legislatures are pushing for powerful new statutes. Critics of these so-called personhood laws worry they will be used not only to criminalize abortion but also miscarriages, the termination of pregnancies that threaten the mother’s life, and some types of contraception.

1. How do personhood laws differ from abortion bans?

Abortion bans clamp down on the practice, while personhood laws regulate pregnancy much more broadly. The latter grant a fetus, the developmental stage that begins eight weeks after conception, or a zygote or embryo, the two earlier stages, the same legal rights as a person, including the right to life.

2. Are these laws something new?

Not entirely. Even before the Supreme Court’s decision overturning Roe v. Wade, at least 11 states already had broad personhood language in their constitutions, laws or policies that could be read to affect all state civil and criminal laws, according to the National Advocates for Pregnant Women, a non-profit organization that backs abortion rights. For instance, Alabama adopted a constitutional amendment in 2018 ensuring “the protection of the rights of the unborn,” while Missouri since 1986 has had a law that defines life as beginning at conception. An additional five states — Kentucky, Louisiana, Ohio, South Dakota and Texas — had defined “person” as including a fetus throughout the state criminal code, according to the group. 

Until the Supreme Court’s ruling in the case of Dobbs v. Jackson Women’s Health Organization, this kind of language was largely symbolic because Roe v. Wade had guaranteed a right to abortion throughout the country. Now that states have the latitude to make their own rules on abortion, personhood laws and policies have the potential to carry real weight. Georgia is a case in point. Its 2019 personhood law had been blocked by a court as unconstitutional, but after the Dobbs hearing, an appeals court cleared it to take effect in July. The statute, the most expansive of its type in the country, prohibits abortion after six weeks, explicitly recognizes the fetus at that point as a person, and could provide a blueprint for other conservative states as it essentially extends criminal and civil law to cover fetuses. The law provides expectant mothers a $3,000 tax credit per fetus and allows them to file for child support during pregnancy; it also instructs state officials to include fetuses in population counts. 

4. Where’s the legislative push?

Ohio lawmakers proposed a law in July that would ban abortions at conception instead of at the six-week mark as the current law provides. In Oklahoma, where a total abortion ban has been in place since May, a bill “equating rights of unborn persons to rights of born persons” has passed one chamber of the legislature. An Arizona law grants personhood to fertilized eggs, embryos and fetuses, but in July a court blocked it from being used to criminalize providers of abortion, which will be prohibited in the state after 15 weeks under a law due to take effect in late September. Other personhood statutes have been introduced in statehouses in Iowa, Vermont, South Carolina and West Virginia, according to the Guttmacher Institute, an advocacy organization that supports abortion rights. A federal personhood law was introduced last year in both houses of Congress and attracted 166 cosponsors in the House of Representatives, out of 435 total members. It specified that the right to life “is vested in each human being at all stages of life, including the moment of fertilization.”

5. What are possible implications of personhood laws?

• Because personhood laws grant a zygote, embryo or fetus rights equal to those of the pregnant woman, the latter may be held criminally liable for harm that comes to the former. Those who obtain an abortion could be charged with murder. The laws could make it more likely that those who miscarry are investigated for negligently or intentionally ending their pregnancies, with some of them prosecuted. Even without these laws, some women’s rights advocates say that feticide and child endangerment laws — originally passed to protect pregnant women as well as the unborn — are increasingly being used to prosecute women for crimes such as assault or murder after miscarriages and stillbirths. About 1,300 women were arrested or charged in the US from 2006 to 2020 for their actions during pregnancy, three times the number for the 33 years prior, according to the National Advocates for Pregnant Women.

• Depending on their wording, personhood laws could make it illegal for a doctor to terminate a pregnancy even when there is a life-threatening complication, such as when a fertilized egg implants ectopically, that is, outside the uterus where it can’t survive. Georgia’s law explicitly excludes terminating ectopic pregnancies, whereas the Arizona law was unacceptably vague on this point, according to the judge who blocked it.

• Critics worry that personhood laws could take away the rights of patients to decide what to do with embryos created through in vitro fertilization, although some of the proposed statutes make exceptions for this case. Georgia’s law applies only to an “unborn child” who is “carried in the womb.”

• There are also concerns the laws could criminalize the use of two birth control methods, the morning-after pill and the intrauterine device (IUD). Both work by preventing fertilization, but some anti-abortion activists incorrectly argue that they can stop implantation of a fertilized egg.

6. What has the Supreme Court said about personhood?

When the Supreme Court ruled in Roe v. Wade in 1973, it rejected the argument that a fetus was a person with all the protections, including the right to life, of the Constitution’s Fourteenth Amendment, which guarantees all citizens “equal protection of the laws.” Justice Harry Blackmun, in the majority opinion, concluded that in the context of the Fourteenth Amendment, a “person” did “not include the unborn.” A fetus, he said, is not a person but “potential life.” Writing for the majority in the Dobbs decision, Justice Samuel Alito concluded that Roe was “egregiously wrong” in supporting a constitutional right to abortion, but his ruling explicitly dodged the question of “when prenatal life is entitled to any of the rights enjoyed after birth.” 

More stories like this are available on bloomberg.com



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