For decades, anti-abortion lawmakers have operated under the false pretense that their only target was abortion providers. Pregnant people, depicted mostly as victims of the predatory abortion industrial complex—or some other unhinged, alarmist framework—were safe from their wrath.
But their tone has shifted as of late. The concept of fetal “personhood,” which defines life as beginning at conception, has become mainstream, and those advocates are pushing for the laws around abortion to reflect that.
For folks working in the abortion movement, this comes as no surprise. The absence of explicit references to so-called personhood never meant this wasn’t the endgame. It was always going to end up here: with abortion legally construed as murder, and anyone who performs one or has one a murderer. Fetal personhood is the most extreme manifestation of the anti-abortion agenda. While it’s framed as a means to create “equity” between fetuses and people, in actuality, it creates a world where a fetus’ rights are regarded with more sanctity than those of pregnant people. A sort of fetal supremacy, if you will.
Few people know more about the impacts of fetal personhood than the team at National Advocates for Pregnant Women, who for decades has been fighting for the rights of people charged with crimes related to their pregnancy and birth and parenting.
Lynn Paltrow, NAPW’s founder and executive director, spoke with Rewire News Group about the impact of fetal personhood on all pregnant people, the white-supremacist roots of personhood, and how these laws fit into the landscape of a larger attack on abortion access.
Rewire News Group: Let’s start with some background. How do you define “personhood”?
Lynn Paltrow: Roe v. Wade did more than recognize a fundamental right to choose abortion. Consistent with the plain language of the 14th Amendment to the Constitution (“all persons born or naturalized in the United States”), it also rejected the argument that fetuses at any stage of development are constitutional persons, and by doing so effectively recognized the personhood of pregnant people at every stage of pregnancy.
Advocates seeking to overturn Roe believed that if they could get fetuses recognized as separate persons under various state and federal laws—such as wrongful death and criminal feticide laws—that recognition could be used to persuade the Supreme Court to revisit Roe and, eventually, overturn it. The so-called fetal personhood movement grew out of that strategy and now argues that the “unborn,” from the moment of fertilization, should be treated as if they are actually rights-bearing persons separate from the pregnant person.
This argument not only threatens to remove from the community of constitutional persons the people who get pregnant, it also distracts attention from true personhood movements, such as Black Lives Matter.
How does personhood legislation impact the rights of all pregnant people?
LP: Adopting the legal and biological fiction that fertilized eggs, embryos, and fetuses still inside the pregnant person’s body are somehow already separate provides the basis for denying pregnant people virtually every right guaranteed by the Constitution.
The fiction of separateness for eggs, embryos, and fetuses has been used to justify denying the rights to life, liberty, equality, and privacy to pregnant people. The argument that the unborn are entitled to “equal” rights was used to justify forced cesarean surgery on Angela Carder, even though the judge who ordered that surgery knew it could kill her. Neither Angela nor the baby survived. The argument that the unborn are entitled to “equal” rights has justified the interpretation of numerous criminal laws—such as child abuse, child endangerment, contributing to the delinquency of a minor—to permit arrest and prosecution of women who were pregnant and fell down a flight of stairs, delayed having cesarean surgery, planned to have a home birth, didn’t get to the hospital quickly enough on the day of delivery, or used any amount of alcohol or a controlled substance, including marijuana.
If the unborn are full constitutional persons, then exercising the right to travel while pregnant becomes the crime of kidnapping, and experiencing a pregnancy loss or having an abortion becomes the crime of homicide and its numerous variations—including manslaughter, depraved-heart homicide, and first-degree murder. If the unborn are separate children, we have to presume that from the moment a person becomes pregnant, they will lose rights to privacy in medical information, since the state can claim a “parens patriae” interest—as the legal protector of citizens (the unborn) unable to protect themselves.
All threats to the health of the unborn could be prohibited, including some or all kinds of employment by pregnant people. And decisions people make about their pregnancies based on their religious beliefs could be denied, and one religious view of when legal personhood is recognized would be established under the law.
Lawmakers who support fetal personhood argue that it’s about giving a fetus equal rights to a human being, but can you explain how they act to put the rights of a fetus over those of the pregnant person?
LP: Courts have consistently ruled that no living person has the right to force someone else to undergo surgery or any medical procedure for their benefit—even if refusing to donate an organ, bone marrow, or blood could result in the other person’s death. So-called fetal rights or personhood would empower the state to take custody of pregnant people and force them to submit to surgery for the benefit of another. The pregnant woman loses her status as a full constitutional-rights-bearing person, and the fertilized egg, embryo, or fetus is given more rights than any born person.
In a post-Roe, fetuses-as-persons world, not only would the state presumably have the power to review a pregnant person’s medical records (to protect the unborn child), [it] would also have the legal authority to appoint a guardian ad litem or legal representative for the unborn from the moment of fertilization, and in every legal context involving a pregnant person.
The nightmare just keeps growing.
This concept of fetal supremacy—like all restrictions on abortion and pregnancy—is rooted in white supremacy. Can you talk a little about that connection?
LP: The United States was founded on the principle that some people could own and control the lives and bodies of other people. State-enforced restrictions on abortion and pregnancy are based on the premise—rooted in both white supremacy and male supremacy—that the government and people acting on its behalf may deny some people the right to own and control their own lives and bodies.
What can you tell us about the endgame of fetal personhood, and how does it prove that this is really about putting the rights of a fetus ahead of the pregnant person?
LP: The endgame of claims of personhood for eggs, embryos, and fetuses still inside of and dependent upon the pregnant person is to have Roe v. Wade overturned and to undermine legal precedent protecting principles of privacy and equality that protect LGBTQIA people; Black, brown, and Indigenous people; women; and religious minorities.
The endgame is to empower the state—legislators, law enforcement, child welfare authorities—and others to have power and control over certain populations that can be carried out in the guise of “protecting unborn lives,” while actually increasing risks to their lives and health. For example, we know that threatening arrest of pregnant women for fetal endangerment deters them from getting prenatal care and from speaking openly with their health-care providers and getting whatever help they may need.