Why So-Called Personhood Laws Are the Next Big Threat After ‘Roe’ Falls

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Culture & Conversation Abortion

Why So-Called Personhood Laws Are the Next Big Threat After ‘Roe’ Falls

Julie F. Kay

In a post-Roe world, anti-abortion lawmakers will seek to give fetuses the same legal rights as pregnant people.

The leak of a draft Supreme Court opinion confirms that the Court’s conservative supermajority is poised to bring Roe v. Wade to an end by the summer. Abortion laws will then be determined on a state-by-state basis without any federal constitutional protections.

By removing the federal constitutional protection of abortion rights, the Court will lay a pathway for anti-abortion state officials to be as extreme as they can in limiting abortion access, including equating the life of a pregnant person with that of their fetus. States like Oklahoma have already been chomping at the bit to pass just such a fetal “personhood” law.

These “personhood” bills are modeled on the “Human Life Amendment” and have been introduced into Congress and state legislatures hundreds of times since Roe became the law in 1973. The bill seeks to amend the Constitution to consider a fertilized egg to be the equivalent of a human being from the moment of conception, entitling it to full protection of the law. We are now seeing an increase in attempts to introduce such fetal “personhood” laws at the state level, with five states introducing these bills this year. Additional states have attempted to use or widen the definition of existing laws‚ such as those of homicide or child abuse, to include an embryo in their scope. The result is to place any pregnant person in an adversarial relationship with their own body and to make their health care providers law enforcement agents.

As I witnessed here in Ireland, fetal “personhood” laws have a broad scope that can cause deadly harm to anyone who becomes pregnant. The legislative jewel in the crown of the pro-life movement, fetal “personhood” was enshrined in the Irish Constitution for over three decades until voters abolished it in a national referendum in 2018.

Roe is gone. The chaos is just beginning.

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Ireland’s abortion rate was exported to England as thousands traveled abroad each year. Meanwhile, the effect reverberated through reproductive health care at home. For example, diagnostic testing for fetal anomalies was largely unavailable during the years of Ireland’s abortion ban. The reasoning was that if knowledge of fetal anomalies could lead to a pregnant person deciding against carrying a pregnancy to term in violation of the law, why give them the information?

The result was to remove medical decision-making from patients’ hands. In vitro fertilization also existed in an unregulated Irish limbo—it was unclear what practices were legal, including how to dispose of embryos that had been created by IVF but never implanted into the uterus. (There were rumors of doctors who shot them into people’s cervices knowing they could not be implanted.) We’re now hearing reports of similar circumstances in the United States, as pregnant people in Texas are refused abortions for ectopic pregnancies and more.

Fetal “personhood” laws that ban abortion include only limited exceptions when a pregnant person’s life is at risk. However, it is often impossible for medical providers to determine when someone’s life is at risk or whether it’s “merely” their health that’s in jeopardy. But waiting for a patient’s health to decline to warrant treatment is dangerous and immoral, and the effects can be devastating.

Laws that give embryos “personhood” imperil miscarriage management with lethal results. Savita Halappanavar’s death made headlines after physicians delayed providing her with appropriate medical treatment during a septic miscarriage because they could still detect a fetal heartbeat. By the time they acted, it was too late and Halappanavar died of sepsis, bringing the tipping point to a growing cry to abolish Ireland’s anti-abortion law. Polish activists have loudly protested the similar deaths of two pregnant women, one with twins, who were denied appropriate medical treatment because of Poland’s strict abortion ban. The definition of abortion in one Oklahoma bill, which became law on Tuesday, likewise could prohibit the removal of an ectopic pregnancy or miscarriage treatment.

By criminalizing abortion through fetal “personhood” laws, we turn anyone who miscarries into a criminal suspect, condemning them to our racist criminal justice system. Even as Roe’s protections remain in full force today, pregnant people being prosecuted for behavior potentially harmful during pregnancy is not uncommon. Last month, an emboldened Texas prosecutor brought murder charges against a Latina woman, Lizelle Herrera, after she came to a hospital emergency room for excessive bleeding while miscarrying a pregnancy.

Meanwhile, Brittney Poolaw, a member of the Wichita Nation, was sentenced to four years in prison for first-degree manslaughter after she informed health-care providers that she had used illegal drugs during her pregnancy and miscarried at 17 weeks. Although the direct cause of each miscarriage was unknown, the message was clear: Seek medical help for miscarriage, and you may be jailed.

Supreme Court Justice Samuel Alito’s draft opinion throws around the words “unborn human being” an awful lot. During oral arguments in that case, Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas invoked a Supreme Court case from South Carolina to indicate that the end of Roe would open the door for a state to police a woman’s behavior throughout her pregnancy. According to the National Advocates for Pregnant Women, in the United States approximately 1,200 women, disproportionately women of color, have been prosecuted for their behavior during pregnancy over the last 15 years. Equating the life of a fertilized egg with that of a pregnant person could force certain forms of contraception off the market and undermine in vitro fertilization and stem cell research too.

Some states already have appointed independent counsel to represent a fetus. Alabama and Texas have proposed retaining a fetal lawyer when a minor seeks a court’s permission to have an abortion. Cross state lines and your reproductive rights could plummet to a level below those that existed before Roe.

Most importantly, granting a fertilized egg legal status equal to that of a pregnant person sends a damning message about how we regard pregnant people. It allows states to ignore human rights of liberty, equality, and bodily integrity, instead centering a pregnant person’s role as one of childbearing and rearing. And since you can’t always tell if the person standing next to you may be pregnant, that cigarette or glass of wine in their hand could be construed as evidence of child endangerment.

This is not a dystopian Netflix screenplay waiting to be produced. This program has already begun. Many Americans were not even aware of Texas SB 8 until months after it was signed into law. Oklahoma’s abortion ban includes a ten-year prison sentence. The Supreme Court will set back abortion rights this year, and by doing so will open the door for state-level fetal “personhood” laws.

Let’s not be caught off-guard. We need to sound the alarm now and ensure that state legislators will value and support people who can become pregnant as full human beings—and not just for the “potential life” within them.

Correction: An earlier version of this story misstated the tribe Brittney Poolaw is part of. She is a member of Wichita Nation.