Members Only | July 19, 2022 | Reading Time: 5 minutes

Don’t fight ‘fetal personhood’ by taking the idea to extremes

That reaffirms privileging fetuses over women.


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Since the Supreme Court issued its opinion overturning Roe, the current state of healthcare for women, girls, trans men and nonbinary people across the country has been thrown into chaos. 

Abortion is fully banned in seven states. It’s unclear or inaccessible in nine others. Court cases are blocking trigger bans in even more. 

Additionally, there is confusion around healthcare for people with the capacity to get pregnant. Pharmacies are refusing to fill prescriptions for common medications that could potentially cause miscarriages as a side effect. Access to cancer treatment for pregnant people is unclear as well. We are facing the next legal challenge from anti-abortionists to enforce personhood for fetuses. 

We might be tempted to use this theory of personhood to increase benefits for undocumented pregnant people, but it will only strengthen the legal justification of personhood, which will cause more harm than good. 

Federal guidelines currently state that an abortion must be performed to save the life of the mother even in states without such an exemption. However, if personhood is enshrined into law the pregnant person will no longer have such a legal protection.

While fetal personhood is not yet a law, some laws and some doctors have treated fetuses as if they had rights separate from their mothers’, especially after the point of viability. 

“Maternal-fetal conflict”
The conflict between the interests of a fetus and the interests of a pregnant person is described as the “maternal-fetal conflict.” 

According to Dorothy Roberts, “The relationship between Black women and their unborn children created by slavery is the first example of maternal-fetal conflict in American history.” 

Enslaved pregnant women were whipped while lying with their stomachs in a hole to protect the fetus while punishing the mother for example. Dating back to the middle ages, women could “plead the belly” to delay their executions until their babies were born. 

During slavery, enslaved women were forced to carry their pregnancies to term before being executed. In one famous case, an enslaved woman murdered her rapist but was forced to give birth to a child resulting from that rape before she was executed.

“Fetal homicide”
Rebecca Kluchin discussed more contemporary examples of state intervention in the maternal-fetal conflict to protect the fetus over the mother’s objections even after Roe was federal law.

Courts have ordered c-sections on women who don’t want such a surgical intervention to protect fetuses. However, such surgical interventions are not always in the best interest. In one case the c-section over the woman’s objections resulted in both dying.

Such interventions were disproportionately applied to brown and Black women. “Fetal homicide laws” – laws intended for domestic abusers who cause miscarriages – criminalize pregnant people. 

They also serve as a backdoor to fetal personhood laws. 

If killing a fetus is a homicide, the fetus must legally be a person. 

Even more common are laws that charge pregnant people with child abuse if they take drugs or engage in risky behavior while pregnant, therefore treating the fetus legally as a “child” with separate rights.

“Fetal personhood”
Fetal personhood laws have been introduced in six states. Last week, a federal court struck down one in Arizona for being too vague. 

Fetal personhood laws could have extreme and far-reaching consequences. They define life as beginning at fertilization and theoretically would create a new citizenship class deserving of the full rights, privileges and immunities of the US Constitution. 

Laws that define life as beginning at fertilization could similarly endanger pregnant people without necessarily creating a new citizenship class. Any law that defines life as beginning at fertilization could put certain types of birth control at risk, imperil IVF treatment, and limit prescriptions that cause miscarriages. 

Such laws will likely increase the control of pregnant people and make it illegal to engage in all sorts of activities while pregnant. 

Previously mentioned child abuse laws apply to drug use while pregnant. But they could be expanded to apply to drinking alcohol, eating sushi, taking certain medications or being in risky situations. 

Three years ago, a woman was charged with manslaughter after she suffered a miscarriage as a result of being shot in the stomach. Charges were dropped, but a grand jury indicted her under the theory that she started the fight and was therefore responsible. 

Such criminalization will increase with fetal personhood laws.

HOV lanes?
It’s tempting to expose the absurd implications of fetal personhood by making outlandish claims using personhood. A week after the Dobbs ruling, a story of a woman claiming her fetus was a person for the purposes of a carpool lane gained national attention. 

Many rallied around the story and encouraged pregnant people to protest fetal personhood by making such claims. Though personhood is nonsensical and legally incoherent, this is not a winning strategy. 

We don’t have a constitutional right to HOV lanes. As some judges have observed, the point of such lanes is to fill empty car seats. Republicans would never choose the sanctity of a carpool lane over personhood and anti-abortion laws. One Republican lawmaker even said he would introduce a bill to consider a fetus a “passenger” for the purposes of driving (so we can probably add speeding to the list of things pregnant people will be criminalized for).

While Republicans were never going to care about HOV lanes, it seems they’re willing to provide healthcare to undocumented pregnant people to support personhood. Currently, 17 states provide healthcare to undocumented pregnant people using an “Unborn Child” Option for CHIP insurance programs. 

States can extend CHIP coverage to undocumented pregnant people by classifying the fetus as a citizen eligible for benefits. 

Reject the premise
We might be tempted to use this theory of personhood to increase benefits for undocumented pregnant people, but it will only strengthen the legal justification of personhood, which will cause more harm than good. 

There is better avenue for providing healthcare to undocumented pregnant people. New York, New Jersey and DC provide Medicaid pregnancy coverage to undocumented immigrants by eliminating citizenship as a requirement for such healthcare coverage. 

This option not only provides healthcare without classifying a fetus as an “unborn child.” It offers much better healthcare for the pregnant person by covering care not directly related to the fetus.

While the second option is significantly better for many reasons, more states have opted for the first because the “unborn child” classification qualifies them for federal funds while expanding Medicaid must be funded entirely by the state.

When faced with an absurd legal claim that has far-reaching implications, it is tempting to challenge that legal justification with extreme cases. Personhood strains credulity. How can we classify something that is inside another person a citizen with rights? 

Republicans like extremes?
Republicans are willing to support most of those extreme cases if it helps them strengthen personhood claims. 

Senate Republicans even introduced a bill to require child support payments starting at conception. Unfortunately, we will only cause more harm if we bring challenges to personhood with unintended consequences. 

Republicans will not be scared off classifying fetuses as people with a few traffic tickets or even protections for undocumented immigrants. The implications of personhood are also far too dangerous to give any legitimacy. 

We must instead challenge every one of these laws by arguing against personhood, not absurdly supporting it.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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