Is a Fetus a Person? An Anti-Abortion Strategy Says Yes.
Even as roughly half the states have moved to enact near-total bans on abortion since the Supreme Court overturned Roe v. Wade in June, anti-abortion activists are pushing for a long-held and more absolute goal: laws that grant fetuses the same legal rights and protections as any person.
So-called fetal personhood laws would make abortion murder, ruling out all or most of the exceptions for abortion allowed in states that already ban it. So long as Roe established a constitutional right to abortion, such laws remained symbolic in the few states that managed to pass them. Now they are starting to have practical effect. Already in Georgia, a fetus now qualifies for tax credits and child support, and is to be included in population countsand redistricting.
The laws also open up questions well beyond abortion, about immigration and who is entitled to public benefits.
They have the potential to criminalize common health care procedures and limit the rights of a pregnant woman in making health care decisions.
The U.S. Supreme Court decision returning the regulation of abortion to the states has opened new interest in the laws, and a new legal path for them.
In Indiana, where this month the Republican-controlled legislature banned abortion starting at conception — one of the strictest laws in the nation — some conservative lawmakers objected that the law included exceptions for rape and incest. “This bill justifies the wicked, those murdering babies, and punishes the righteous, the preborn human being,” one lawmaker said, pushing instead for a fetal personhood law with no exceptions.
In Georgia, a law granting fetal personhood to fetuses after around six weeks of pregnancy took effect after the overturning of Roe. But Georgia Right to Life and other conservative groups are petitioning Governor Brian Kemp to call a special legislative session to pass a fetal personhood amendment to the state constitution. It would eliminate any exceptions for abortion allowed in the law, by declaring a “paramount right to life of all human beings as persons at any stage of development from fertilization to natural death.”
And this month, Republicans in the U.S. House and Senate, urged by anti-abortion groups, introduced legislation that would establish a right to child support for fetuses beginning at conception. Such a mandate might be difficult to enforce but would nudge federal law toward an understanding that fetuses have the same right to life as other human beings, including the women who carry them.
The goal is to establish a federal ban on abortion, through legislation or another Supreme Court decision.
Read More on Abortion Issues in America
- An Uneasy Champion: President Biden, a practicing Catholic, is being called to lead a fight for abortion rights that he has sidestepped for decades. Advocates wonder if he’s up to the task.
- Safe Havens: After Roe, conservatives are seeking to expand ways that allow women to give up newborns, such as baby drop boxes. But for many experts in adoption and women’s health, they are hardly a solution.
- In Mississippi: The state that spurred the overturning of abortion rights, is among 17 that have rejected an option to extend new mothers’ Medicaid coverage.
- A Rare Prosecution: A teenager used pills to terminate her pregnancy at home with the aid of her mother. Their Facebook messages are now key evidence in a rare prosecution over abortion.
“Personhood has always been the ultimate ambition of the anti-abortion movement,” said Mary Ziegler, a law professor and historian of abortion at the University of California, Davis. “The movement very much wants a declaration that abortion is a human rights and constitutional rights violation. Not just that it’s a crime; that it’s unconstitutional. From a symbolic standpoint, that’s a really big deal to a lot of people in the movement.”
How much support the laws will find will not be clear until state legislative sessions begin early next year and will depend on whether Republicans take control of Congress in the midterms. But for anti-abortion advocates, simply returning the regulation of abortion to the states was never enough.
“Life begins at conception,” Representative Mike Johnson, a Louisiana Republican, said in proposing the Unborn Child Support Act in Congress this month, “and this bill is a straightforward first step towards updating our federal laws to reflect that fact.”
The push for fetal personhood began even before the Roe decision in 1973, largely among Catholics who were upset that states were loosening broad bans on abortion to allow exceptions in the case of rape or incest, or to protect the life of thepregnant woman.
In the Roe decision, the Supreme Court prohibited states from banning abortion before a fetus can survive outside the womb, which is now around 23 or 24 weeks. The justices identified a right to abortion in the Fourteenth Amendment, declaring that the word “person” in that amendment did “not include the unborn.”
Anti-abortion groups responded by trying to establish that “person” did, in fact, include the unborn. They pushed a constitutional amendment declaring that human life begins at conception. But their efforts got little traction, even after 1980, when the Republican Party platform first included support for a “human life amendment” that would “restore protection of the right to life for unborn children.”
Anti-abortion advocates then moved to restrict abortion state by state. A number of states adopted laws counting a fetus as a person in homicides, as a way to introduce the concept of fetal personhood into the law, to increase the severity of the consequences for violence against pregnant women — or both.
Legislatures in five Republican-controlled states — Alabama, Arizona, Georgia, Kansas and Missouri — passed fetal personhood laws to ban abortion. But in three of those states the laws were struck down or remain enjoined by courts.
Ballot initiatives that would have established fetal personhood laws failed in some of the most anti-abortion states. Voters rejected initiatives twice in South Dakota, in 2006 and 2008, and in Mississippi in 2011 — even as new conservative majorities in state legislatures across the country were passing an unprecedented number of anti-abortion restrictions.
“It’s an incredibly unpopular idea,” said Elisabeth Smith, director of state policy and advocacy for the Center for Reproductive Rights, which litigates against abortion restrictions. “The reason is because people very clearly articulated the harms of fetal personhood. When voters understood these harms, they voted no, consistently, every time.”
In Mississippi, medical groups campaigned against the fetal personhood amendment in 2011 by warning that it would criminalize IUDs and other methods of contraception. They also warned about the effects on in vitro fertilization, which involves freezing fertilized embryos and typically implanting several because not all pregnancies will hold. Disposing of unused fertilized eggs, or selectively eliminating implanted eggs, as many aspiring parents do, could result in murder charges. (Since then other states, such as Arizona, have carved out exceptions for IVF.)
The decision overturning Roe in June upheld a Mississippi law that referred repeatedly to the “unborn human being.” The decision adopted the language of fetal personhood, citing several 19th-century state laws referring to “unborn children.”
That opened the way for the Georgia law passed in 2019 to take effect. The law, titled the Living Infants Fairness and Equality Act, defines an “unborn child” as “a member of the species Homo sapiens at any stage of development who is carried in the womb.” It declares a fetus a person as soon as embryonic cardiac activity can be detected, usually around six weeks.
Those fetuses are eligible for child support payments and tax exemptions onthe pregnant woman’s state income taxes. They are also to be counted in “population-based determinations,” which could influence state legislative maps and distribution of state money. But the law does not explain how those fetuses would be tallied, since the United States census does not count them.
Arguing against the law before it passed, State Senator Jen Jordan noted an opinion from the counsel to the state legislature saying that under fetal personhood, Georgia would be required to pay public benefits to the fetus of an immigrant woman, even as it now denies those benefits to her, because any person born in the United States becomes a citizen. She also warned that taking legal medications that some doctors advise against using in pregnancy — aspirin and some antidepressants — or even failing to secure adequate prenatal care could open pregnant women to prosecution.
“They really did open up a Pandora’s box,” Ms. Jordan, a Democrat, said in an interview. Although polling shows most Georgians want abortion to be legal in most circumstances, she contended that gerrymandering had eliminated so many competitive districts that Republican legislators could support fetal personhood without much voter backlash.
The Georgia law declares that the “unborn” are entitled to 14th Amendment protection. It also codifies assertions that the scientific literature does not support: for instance, that a fetus has a heartbeat at six weeks of pregnancy and can feel pain at 20 weeks. The American College of Obstetricians and Gynecologists disputes both.
State Representative Ed Setzler, a Republican and chief sponsor of the bill, accused critics of being “bomb throwers.” In an interview, he noted the ban does not apply when an abortion is done to clear a miscarriage or ectopic pregnancy, or in cases where a fetus has a “profound and irremediable” genetic condition “that is incompatible with sustaining life after birth.”
The fetus of an immigrant woman, he said, would not be eligible for benefits because it is not eligible for citizenship under federal law.
This month, Georgia’s Department of Revenue set the exemption at $3,000 per pregnancy for fetuses after about six weeks of gestation. All told, Mr. Setzler said he anticipated the new benefits to unborn children and pregnant women would cost the state somewhere between $18 million and $20 million a year.
“It’s a balance between the liberty interest of the mother and the life interest of the unborn child,” he said. “Show a 4D sonogram of 10 weeks along to a classroom of fourth graders and ask them what they’re seeing. They know: It’s a baby.”
In Arizona, a court has put the state’s fetal personhood law on hold pending a lawsuit filed by abortion rights groups, who say the law “makes it impossible” for women and their medical providers “to identify whether a vast array of actions may now put them at risk of criminal prosecution or other legal penalties.”
For instance, the state’s law on child abuse applies to anyone who causes physical injury to a child “whether intentionally, knowingly, recklessly, or negligently.” The groups say that declaring a fetus a child could lead to abuse charges against women who undergo medical procedures that can harm a fertilized egg, including cancer screening or substance abuse treatment.
Defending the Arizona law, the state attorney general’s office argued that the fetal personhood statute created no new crimes that would lead to charges. But it acknowledged that it was “anyone’s guess” how prosecutors and courts might interpret it.
Laws identifying a fetus as a person have been used to criminalize women who use drugs. And abortion rights groups argue that establishing fetal personhood inevitably strips away the rights of a pregnant woman — her choices in a health care proxy, or about whether to have surgery, say — would have to be weighed against another equal person’s.
“Seemingly far-fetched possibilities too easily become reality,” the National Advocates for Pregnant Women declared in a report on fetal personhood last week.
More claims under fetal personhood have begun to pop up across the country since the overturning of Roe, even in states without fetal personhood laws. In July, a Texas woman argued that under her state’s abortion bans, her fetus counted as a person for the H.O.V. lane. She got a ticket anyway.
Ms. Smith, at the Center for Reproductive Rights, predicted more states would try to move toward fetal personhood by passing laws along the lines of Georgia’s declaring that a fetus makes a woman eligible for a tax exemption. “It’s another piece of evidence to support the fetal personhood argument, and it provides some opportunity for an anti-abortion legislator to falsely claim they are supporting pregnant people,” she said.
Georgia Right to Life is pushing for more, arguing in its petition that the Dobbs decision “is the pivotal opportunity we’ve been praying and working for,” paving the way for a personhood amendment. “We will lay the foundation to protect all innocent human life, from earliest beginning through natural death — no exceptions.”