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Fetal Personhood Laws Are a New Frontier in the Battle Over Reproductive Rights

In the early 1970s, when lawyers representing the state of Texas argued Roe v. Wade before the U.S. Supreme Court, they argued that a fetus is a person. Because a fetus is a person, they told the Justices, a fetus is entitled to all the protections guaranteed under the Fourteenth Amendment including a right to “life.”

In 1973, the high court ruled that Texas was wrong. “The word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn,” wrote Justice Harry Blackmun in his landmark opinion. The Supreme Court held that personhood could not be granted to a fetus before “viability”—the point around 24 weeks of pregnancy when a fetus can survive outside the womb—and established a constitutional right to abortion access.
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But nearly 50 years later, Roe was overturned, and Justice Samuel Alito declared in the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization on Friday that Roe was “egregiously wrong from the start.” Now, laws that establish fetal personhood—meaning they extend the legal rights of people to a fetus or embryo before viability—could be the next frontier in the legal battle over reproductive rights in the United States.

Not all abortion bans establish fetal personhood. But all pre-viability fetal personhood laws ban abortion—and could have even broader implications for reproductive healthcare access and the potential criminalization of pregnancy. “Abortion laws regulate a procedure,” says Rebecca Kluchin, a professor at California State University, Sacramento, who recently wrote a piece for the Washington Post criticizing such policies. “Fetal personhood laws allow the state to regulate pregnant women.”

While 13 states had already enacted “trigger laws” designed to ban all or nearly all abortions once Roe was overturned, at least six states have also introduced legislation to ban abortion by establishing fetal personhood, according to the Guttmacher Institute, a research group that supports abortion rights.

Litigation over such laws has already begun. Last year, Arizona’s Republican Governor Doug Ducey enacted an abortion ban that gave “an unborn child at every stage of development all rights, privileges, and immunities available to other persons, citizens, and residents.” Cathi Herrod, the president of the conservative Christian advocacy group Center for Arizona Policy (CAP), says CAP supported Arizona’s law because they “stand for the belief that human life begins at the moment of conception, that life is a human right, and unborn children deserve protection.” The ACLU of Arizona and the Center for Reproductive Rights sued, and on Saturday filed an emergency motion asking a judge to block the implementation of the law in the wake of the fall of Roe, arguing the law’s “vagueness” violates the right to due process and could put abortion providers and pregnant people at risk of criminal prosecution. The judge has yet to rule on the motion and a hearing will be held in July. (The Arizona attorney general’s office did not respond to TIME’s request for comment.)

Read More: The Fight Over Abortion Has Only Just Begun

The Supreme Court declined to weigh in on fetal personhood in Dobbs: “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,” Alito wrote. It remains to be seen how fetal personhood will hold up in court in Arizona and elsewhere. “I think the challenge for many of us is that we will be living in a legal gray area for a long time,” says Dana Sussman, the deputy executive directive at the National Advocates for Pregnant Women, which provides legal defense for pregnant people, including women who have had abortions. “Case law will have to be developed, or statutes will have to be clarified, because the scope of [Roe’s fall] is just so monumental, I don’t know that anyone truly has an answer to how this will all play out.”

The implications of fetal personhood on pregnancy

Critics of fetal personhood laws argue the state cannot bestow legal rights onto a fetus or embryo without subjugating the rights of the pregnant person.

In theory, fetal personhood laws could impact the use of in vitro fertilization (IVF), a procedure that uses a combination of medicines and surgical procedures to help sperm fertilize an egg and then implant the embryo into the uterus. A round of IVF can create multiple embryos, which can be frozen indefinitely. Fetal personhood laws could also impact contraception access, given that some members of the anti-abortion movement argue that IUDs and the emergency contraception Plan B can prevent the implantation of a fertilized egg and violate personhood, explains Mary Ziegler, an abortion law historian at the University of California, Davis, School of Law. (The American College of Obstetricians and Gynecologists say that those forms of contraception work by preventing fertilization in the first place.)

Fetal personhood laws could also have major implications for pregnant people. If a fetus is legally considered a person, then child endangerment laws can apply. A state could potentially say pregnant people can only eat certain foods, or punish a pregnant person who is seen drinking, or compel someone to have a cesarean section they are refusing, says Kluchin. If a pregnant woman must undergo chemotherapy for cancer treatment, adds Ziegler, she could in theory be told to delay care until she gives birth so she does not harm the fetus, as the New Yorker reports has “routinely” occurred with pregnant women in Poland. (Many U.S. abortion laws have narrow exceptions for when the mother’s life is in danger.)

Establishing fetal personhood could put people who self-induce abortions at risk for criminal prosecution, says Jolynn Dellinger, a senior lecturing fellow at Duke Law School. It could also impact people who miscarry. Leslie J. Reagan, a professor of history at University of Illinois Urbana-Champaign, says prior to Roe, if someone went to the hospital or called a doctor about a miscarriage, they were often questioned on whether they had induced an abortion. Reagan’s research found that beginning in the early 1900s and running up until Roe in the 1970s, doctors and nurses sometimes functioned as the arm of the police, even threatening to deny care to patients if they did not provide information. “They were all suspects,” says Reagan. “[Doctors] couldn’t tell if it was a natural miscarriage or whether they had induced it, and they came to assume that anyone who came in bleeding, miscarrying, had induced it—and began to ask questions.”

Did fetal personhood laws exist before Roe fell?

Roe explicitly banned laws from establishing fetal personhood before the “viability” line. But the logic of fetal personhood has been used for decades in policies and enforcement against women, particularly low-income women of color, in the later stages of pregnancy.

A peer-reviewed study by the National Advocates for Pregnant Women (NAPW) found 413 cases from 1973 to 2005 of women who were arrested or otherwise deprived of their physical liberty because they were accused of hurting their fetus, often because they were found to have tested positive for drugs. And the numbers are picking up: a similar study by NAPW examining data from 2006 to 2020 found roughly 1,331 examples of such cases. (The majority of cases in the NAPW study resulted in healthy birth outcomes.) Some states have laws specifically extending a viable fetus separate legal protections from those of the pregnant person, while in others prosecutors have extended child endangerment or homicide laws to instances where a fetus was harmed.

With the fall of Roe, anti-abortion activists are calling for broader laws that extend similar legal protections to embryos and fetuses. Some were previously ruled unconstitutional, like Georgia’s HB 481, which includes language that states “natural persons include an unborn child,” allows people to claim a fetus as a dependent on tax forms, and requires state officials to count a fetus toward Georgia’s population for official population count purposes. The law was struck down in 2020, but after the Supreme Court overturned Roe on Friday, Georgia’s attorney general filed a notice requesting the decision be reversed.

Read More: The Failure of the Feminist Industrial Complex

A federal fetal personhood law was also introduced last year in both chambers of Congress. The Life at Conception Act, which would extend fetuses and embryos a constitutional “right to life” beginning at the moment of fertilization, has 164 cosponsors in the U.S. House of Representatives.

Still, many of these new laws will likely face legal challenges. While there is no longer a constitutional right to an abortion, fetal personhood laws could still be challenged for violating state constitutions, or for violating the constitutional right to due process because of vague wording, like the ACLU’s lawsuit in Arizona claims.

“There are a lot of unanswered questions that we’ll have to see laid out,” says Ziegler. “[Fetal personhood laws] are much more likely to be enforceable than would have been the case before, but we still can’t be sure until the litigation is done.”

—With reporting by Abigail Abrams/New York

from TIME
via Time.com

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