ItIn the beginning of the 1970s lawyers representing Texas tried to argue the case Roe v. WadeThey argued before the U.S. Supreme Court that a foetus was 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.”
Texas’s wrongdoing was ruled by the Supreme Court in 1973. “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.
However, it’s almost fifty 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, 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.
All abortion bans don’t establish fetal personshood. 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 PostCriticizing these policies is not an option. “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 The decision was overturned and at least six other states, including the Guttmacher Institute (a research organization that supports abortion rights), have introduced laws to prohibit abortions by creating fetal personhood.
The litigation over the laws is already underway. 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. A hearing is scheduled for July. The motion has not been decided by the judge. (The Arizona attorney general’s office did not respond to TIME’s request for comment.)
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The Supreme Court did not decide to address the question of fetal personshood. 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. We will see how Arizona courts interpret fetal identity. “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.”
What does fetal personhood mean for pregnancy?
Critics argue that fetal personhood laws are incompatible with the rights of the mother and embryo.
The use of IVF (in vitro fertilization) could be affected by fetal personhood laws. This procedure uses both medical and surgical methods to fertilize the egg, and implant it into the uterus. Multiple embryos can be created by IVF, and can be stored indefinitely. Contraception access could be affected by the fact that anti-abortion activists argue that IUDs, and emergency contraception Plan B, can hinder the fertilization of an egg. Mary Ziegler is an abortion historian from the University of California Davis School of Law.. According to the American College of Obstetricians and Gynecologists, these contraceptives work because they prevent fertilisation.
The laws governing fetal personhood could have serious implications for women who are pregnant. Children endangerment laws could apply to a fetus that is legaly considered a human being. Kluchin says that a state can make it clear to pregnant women not to eat certain foods or penalize someone who drinks while pregnant, or force them to undergo a cesarean. Ziegler says that if a woman is pregnant and must have chemotherapy, Ziegler suggests she might be asked to wait until the birth of her baby so the pregnancy doesn’t cause harm. 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.)
Jolynn Delinger, senior lecturer at Duke Law School, said that establishing fetal personhood can put those who induce abortions at high risk of criminal prosecution. People who have miscarriaged could be affected. Leslie J. Reagan from the University of Illinois Urbana-Champaign is an historian who says that prior to RoeIf someone called the doctor or went to the hospital about miscarriage they would often be asked if they instigated an abortion. Reagan’s research found that beginning in the early 1900s and running up until RoeIn the 1970s doctors and nurses were sometimes used as an arm of police. They threatened to withhold care if patients didn’t provide any 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.”
Before the advent of fetal personhood law, did they exist? Roe fell?
Roe explicitly banned laws from establishing fetal personhood before the “viability” line. The logic of the fetal personhood was used over decades to enforce policies against low-income women and women of color in the latter stages of pregnancy.
The National Advocates for Pregnant Women’s (NAPW), in a peer-reviewed survey, found that 413 women were detained or otherwise imprisoned from 1973 to 2005. These cases were often due to their suspicions of harming their foetus. The numbers keep rising: NAPW conducted a comparable study that examined data between 2006 and 2020, finding approximately 1,331 such cases. The majority of the cases included in NAPW’s study led to healthy birth outcomes. There are laws in some states that provide legal protections to viable fetuses apart from pregnant women. In others, prosecutors extend child harm or endangerment laws to cases when a fetus is harmed.
It was the end of RoeAnti-abortion advocates are calling for more laws to extend the same legal protections to embryos as to 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. Although the Supreme Court overturned it, the law was finally struck down in 2020. Roen Friday, Georgia’s attorney general filed a notice requesting the decision be reversed.
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In both Congress chambers, a federal law on fetal personhood was introduced in the last year. 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.
Many of the new laws are likely to be challenged. 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
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