Eggs Are Not People. But the Anti-Abortion Movement Wants to Change That.

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Analysis Law and Policy

Eggs Are Not People. But the Anti-Abortion Movement Wants to Change That.

Rewire News Group Staff

The anti-abortion movement is already building a post-Roe world by zeroing in on "personhood."

Conservatives have long relied on the false promise that no matter how many abortion restrictions they enact, they’re not targeting the people who have abortion. They’ll regulate abortion into nonexistence by targeting providers and, as with Texas SB 8, anyone who helps someone obtain an abortion—from the person who drives a patient to the clinic to the person who answers phones for their local abortion fund. Despite that, they’ll say pregnant people are not in their crosshairs.

But now they’re saying the quiet part out loud.

Anti-abortion lawmakers are working to enact “personhood” laws, which codify into law the concept that life begins at conception. In the simplest of terms? Personhood laws confer all the same rights that living, breathing human beings have onto a fetus; they make abortion murder and anyone who has an abortion a murderer.

Abortion advocates have warned against such measures for years, arguing that personhood was the eventual endgame of the anti-abortion movement. Now creeping personhood seems to have escalated to a sprint.

Roe has collapsed in Texas, and that's just the beginning.

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Meanwhile, the Supreme Court is poised to decide the most consequential abortion case in decades—Dobbs v. Jackson Women’s Health Organization—which will likely bring about the end of Roe v. Wade as we know it by gutting the constitutional protections that, frayed as they may be, have been safeguarding access in this country since the 1970s. And it’s only getting worse from here.

Personhood is not a hypothetical—it’s a reality

The concept of personhood is not new. The first personhood amendment was introduced in Congress a mere week after Roe v. Wade was decided in 1973. Since then, lawmakers have tried and failed to pass such measures. In recent years, personhood legislation has cropped up in states around the country, including Alabama, Georgia, Iowa, Missouri, and Ohio.

And while such measures directly contravene both Roe and the 14th Amendment, new laws will be coming before what is arguably the most conservative judiciary in recent history—one that will no doubt be emboldened by the impending decision in Dobbs v. Jackson later this year.

In Indiana, lawmakers this session introduced two bills—HB 1217 and HB 1282—with personhood provisions; the latter legally defines life as beginning at fertilization. The law “finds that human physical life begins when a human ovum is fertilized by a human sperm [and] asserts a compelling state interest in protecting human physical life from the moment that human physical life begins.” The bill would change the criminal code to reflect the new definition; that means any pregnancy that does not end in a live birth would be vulnerable to murder or manslaughter charges. It also means that some standard in vitro fertilization procedures, like the destruction of embryos, would be illegal as well.

Similar measures are familiar to advocates in Colorado, where earlier this month a state panel blocked a proposed personhood ballot initiative from advancing.

“Colorado really has been the canary in the coal mine for this type of extremism,” said Karen Middleton, the president of Cobalt, a Colorado nonprofit dedicated to abortion rights. “We’ve had four personhood measures on the ballot since 2008, plus numerous attempts at the state legislature. We’ve seen this coming for years. Anti-abortion forces don’t just want to ban abortion. They want to ban the whole idea of bodily and reproductive autonomy.”

And in Arizona last April, the state enacted SB 1457, which broadens the criminal and civil code to include “an unborn child at every stage of development” alongside any mention of a person or child. The American Civil Liberties Union, the ACLU of Arizona, and the Center for Reproductive Rights filed a lawsuit challenging the law, which includes a provision that bans all abortions sought in the presence or presumption of a fetal anomaly. In September, a district court struck down the fetal anomaly provision, but allowed the personhood provision to stay in effect; appeals of both holdings are before the Ninth Circuit for consideration.

“This so-called ‘Personhood Provision’ provides the grounds for state actors in Arizona including prosecutors and child welfare authorities to treat the fertilized eggs, embryos, and fetuses inside of pregnant women as whole persons with independent rights,” National Advocates for Pregnant Women, which filed an amicus brief in the case, said in a press release.

Advocates at NAPW who spoke with Rewire News Group made clear that while personhood measures purport to safeguard the rights of the “unborn,” what they actually do is diminish the rights of pregnant people and make them vulnerable to prosecution. Advocates said this impact is not a hypothetical—it’s already a reality in states across the country, as criminalization of adverse pregnancy outcomes is on the rise.

“​​This was coming for a long time,” NAPW founder Lynn Paltrow said. “So a major long-term strategy has been to establish, in every area of law they could, the idea that fertilized eggs, embryos, and fetuses were separate people. What you see is an evolution from them sort of going along with the viability line, so viable fetuses are persons, to the point where now it’s just from the moment of fertilization.”

The non-issue of viability

The question of viability is a sticking point for conservatives and progressives alike—the constitutional framework of abortion jurisprudence has set a precedent under which viability is the primary consideration in the question of when government intervention in abortion access is appropriate. But advocates told Rewire News Group that the first failure of abortion rights in the United States was contextualizing viability in the law in the first place.

“Viability is irrelevant to the fact that there should be no role for law enforcement in pregnancy or any outcome of pregnancy period,” Paltrow said. “That’s not what law enforcement should be used for. Pregnancy and its outcomes are health issues. They should be seen as health issues that half of the human population, half of the U.S. population is likely to have to deal with in the course of their lifespans.”

A means of marginalization

If the impact of these laws stopped with abortion patients and providers, that alone would be egregious. But personhood provisions provide a grim insight into the ways in which abortion restrictions pervade every aspect of pregnancy care and have the potential to impact the lives of anyone who can become pregnant.

The broad effects of personhood laws make clear that it has never been about abortion per se for those advocating for these restrictions, just as it has never been about the “sanctity of life” or the procedure itself; it’s not about dilation and curettage or misoprostol and mifepristone. Abortion for these lawmakers is merely a means to an end—a tool to oppress and marginalize populations they deem less worthy: people of color, people living in poverty, disabled people, members of LGBTQ communities, anyone who faces marginalization.

The movement’s use of abortion restrictions and other family planning policies as a means to marginalize is nothing new. The United States has a long and shameful history of using the ability to become pregnant as a way to oppress entire communities.

“I’m old enough to remember taking a friend to an illegal abortion in Los Angeles and waiting in the car while she went in and hoping she would come out alive,” said Dianne Post, an attorney with decades of experience on cases involving sexual violence, domestic violence, and international human rights law who assisted NAPW on its amicus brief. “She did. I also tried to get my tubes tied and no doctor would do it. At the same time they were involuntarily sterilizing Black and Hispanic women in the hospitals in Los Angeles.”

The nuances of pregnancy and birth, death and life

“The consequences of putting this ideological language into law would be sweeping,” said Caroline Mello Roberson, the Southwest regional director for NARAL Pro-Choice America. “Not only would it criminalize abortion, but it could also ban stem cell research, assisted reproductive technology like in vitro fertilization (IVF), and common forms of birth control.”

Pregnancy and birth are nuanced; someone who experiences a miscarriage early in a pregnancy may feel differently about what they’ve lost than someone who has an elective abortion. Someone undergoing IVF treatments might regard their embryos with a different sentiment than someone passing fetal tissue during a medication abortion. And while conservatives will seize on these distinctions to justify legislation that relies on a viability framework or establishes the rights of a fetus, what these deeply human and widely differentiated experiences make clear is, in fact, the opposite.

“Laws are such blunt and clumsy instruments,” said Jodi Liggett, founder of Arizona Center for Women’s Advancement, which joined NAPW’s amicus brief. “They can’t possibly be used in a situation like this.”

Conservatives often underline their advocacy for abortion restrictions, and personhood by extension, with the argument that nowhere else in law or society do we “sanction” the “taking of a life.” And while a fetus at any stage of development does not qualify as a person under the 14th Amendment, Liggett points out that these kinds of questions are not specific to the abortion discussion.

“We just had a death in the family,” she said. “It reminded me that we collectively, including the government, have empowered doctors and families on end-of-life matters.” After finding out a loved one would not recover from a stroke, Liggett said her family said goodbye, the doctor administered a morphine push, and he passed away.

“The pro-life movement isn’t all over that, right? It’s a telling indicator of the misogyny [that] just undergirds all of this,” she said. “They figured out, under Reagan I think it was, that ‘Oh my God, abortion is a wedge issue. It divides the country, and the breaks favor us.’ It’s about winning.”

How personhood shows up in insidious ways

Criminalizing the choice to end a pregnancy might seem radical to those unfamiliar with the tactics and aims of the anti-abortion movement, but a look at long-standing statutes in many states makes clear how the concept of personhood has already insidiously worked its way into the law. The idea that a fetus has all the rights of a human being exists not only in explicitly anti-choice laws but in legislation on all kinds of issues.

“Personhood comes in statutes around the country in seemingly innocuous statutes, such as inheritance, divorce, tax,” said Purvaja S. Kavattur, a research and program associate at NAPW.

“But what we’re seeing in our documentation is that the more hostile states are including model language and definitions in the exact same [way] everywhere in any statute, that’s unrelated to health or pregnancy.”

And these laws are even sometimes framed through a lens of protecting pregnant people.

“A very salient example of that is feticide statutes, which are often passed with bipartisan support based on the notion that they will protect pregnant people from domestic violence and intimate partner violence, and who wouldn’t want to do that?” NAPW staff attorney Emma Roth said.

“People are able to shroud these statutes with this goal of protecting women and ensuring that pregnancy is a safer or happier time in a woman’s life; then prosecutors turn around and use those various statutes against pregnant women themselves, even though that was never the explicit intent of the legislature. It just goes to show that states don’t even need these very explicit versions of personhood statutes.”

Saying the quiet part out loud

On Friday, anti-abortion activists will descend on Washington, D.C., for the annual March for Life. This year’s theme is “Equality Begins in the Womb.”

It’s hard to imagine a more overt endorsement of the concept of personhood than the largest anti-abortion demonstration making this their rallying cry. It dispels any conceivable doubt that the movement is coming loudly and unapologetically for the rights of pregnant people in the name of protecting the “unborn.”

“People have a hard time believing the extremism of the ‘personhood’ movement, but they mean every word of it,” Middleton said. “They have repeatedly said so, and we should believe them. Personhood denies the humanity of the pregnant person and turns them into a vessel under state control. Every pregnancy outcome, from abortion to miscarriage to a complex birth, is potentially suspect.”

For conservatives, this was always the endgame. They’ve been relatively coy about it, but for abortion activists and movement leaders, this moment comes as no surprise. There is no more pandering to an ideological “middle,” no more cloaking their motives in softened language to make it palatable for moderates or to obscure the brutality of their intent.

The open embrace of personhood will have a devastating impact on abortion access nationwide, not to mention pregnancy and birth care. In short, anyone who can become pregnant will have their lives touched by these laws if conservative are able to see these plans through. There is no greater threat to reproductive autonomy and, by extension, personal liberty than personhood.

There is no clearer illustration of the far-reaching harms anti-choice laws pose and of the bad faith with which they are devised.

The question then becomes: Will it be enough for lawmakers on both sides of the aisle to see the fight for personhood as a human rights crisis? Will conservatives’ endgame be their downfall?