Personhood

“Personhood” laws seek to classify fertilized eggs, zygotes, embryos, and fetuses as “persons,” and to grant them full legal protection under the U.S. Constitution, including the right to life from the moment of conception.

“Personhood” laws criminalize abortion with no exception, and also ban many forms of contraception, in vitro fertilization, and health care for pregnant people. “Personhood” laws also increase an already dangerous trend of criminalizing pregnancy, by mandating that women who terminate a pregnancy be arrested, prosecuted, and even imprisoned because of the supposed injury done to a separate “person”—namely, the fetus. So-called fetal homicide laws are already being used in many states to arrest and prosecute individuals who miscarry pregnancies or are otherwise seen as “harming” the fetus.

“Personhood” laws have been a favorite tactic of anti-choice activists for decades, but efforts to pass these laws have met with little success.

In Roe v. Wade, the U.S. Supreme Court rejected the notion that a fetus is a person. In addition, no federal or state law bans abortion or presents any obstacle to reproductive health care on the basis that a fetus is a person.

Despite this history of failure, however, “personhood” proponents continue to introduce these bills as part of the broader anti-choice strategy toward their goal of banning all abortions and monitoring the lives of pregnant people.

The “personhood” movement is active in each of the 50 states (some more so than others), usually operating through an organization called Personhood USA. The Personhood USA website defines the movement as follows: “Personhood is a movement working to respect the God-given right to life by recognizing all human beings as persons who are ‘created in the image of God’ from the beginning of their biological development, without exceptions.”

Personhood USA’s efforts do not enjoy universal support, even within the anti-choice movement. The National Right to Life Committee and the United States Conference of Catholic Bishops have refused to back state-level measures out of fear that state-level amendments will make their way to the Supreme Court and result in a decision that would reaffirm Roe v. Wade and undermine the progress that has been made in chipping away at the constitutional right to abortion at the state level.

Examples of “Personhood” Laws (last updated November 7, 2018)

At the federal level, two pieces of legislation—the Sanctity of Human Life Act and the Life at Conception Act—are introduced in Congress year after year; they have failed on each occasion.

Legislative efforts at the state level have been largely unsuccessful. Only three states—Alabama, Kansas, and Missouri—have “personhood” language on their books. In 1986, Missouri passed a law that contained language stating that “the life of each human being begins at conception” and “unborn children have protectable interests in life, health, and well-being.” But because the Missouri law contains a provision that makes it subject to the United States Constitution and the decisions of the U.S. Supreme Court, the Supreme Court ruled that the law is not unconstitutional in its 1989 decision Webster vs. Reproductive Health Services.

In 2013, Kansas enacted the Pro-Life Protections Act (HB 2253), an omnibus abortion bill containing “personhood” language declaring that life begins at fertilization. Although that law has not been challenged in court, it is likely constitutional because, like the law in Missouri, it is expressly subject to the United States Constitution and therefore does not conflict with constitutional abortion jurisprudence.

In addition to repeated attempts to pass “personhood” legislation at the state and federal level, “personhood” activists frequently attempt to place “personhood” initiatives on the ballot in the hopes that voters will approve them. These efforts have been largely unsuccessful. In the last ten years, only three states—Alabama, Colorado, and Mississippi—have put “personhood” measures to a vote. While voters rejected the measures in Colorado and Mississippi, Alabama voters did not.

The first state to attempt to pass a “personhood” amendment was Colorado, in 2008. Voters overwhelmingly rejected the measure during the 2008 elections and again during the 2010 elections, both times by a 2-1 margin. Efforts to place an initiative on the November 2012 ballot failed, but “personhood” activists successfully placed the Colorado Definition of Person and Child Initiative, Amendment 67, also known as the Brady Amendment, on the ballot for November 2014, where it failed.

In 2011, Mississippi attempted to pass a “personhood” amendment (Initiative 26). It was rejected by a margin of 42 to 58. In March 2013, “personhood” activists in Mississippi filed paperwork with the secretary of state for another “personhood” amendment (Initiative 41). Organizers failed to gather the 107,216 signatures required for the Initiative to appear on the 2015 ballot.

In 2012, the Oklahoma Supreme Court struck down a “personhood” initiative (Initiative Petition No. 395) that would have amended that state’s constitution to define “person” as “any human being from the beginning of biological development to natural death” on the grounds that it was “clearly unconstitutional.”

In 2013, the Alaska Supreme Court affirmed the lieutenant governor and state attorney general’s 2012 decision to reject a “personhood” ballot initiative on similar grounds.

On November 4, 2014, voters in North Dakota rejected by a margin of 64 percent to 36 percent SCR 4009, a “personhood” ballot initiative that sought to amend the North Dakota constitution to establish “personhood”. Similarly, in Colorado, voters rejected a “personhood” measure, Amendment 67, by a margin of 63 percent to 37 percent.

In 2017, Alabama passed HB 98, which proposed an amendment to the state constitution, upon voter approval, to declare and otherwise affirm that it is the public policy of Alabama to recognize and support the sanctity of ‘unborn life’ and the rights of ‘unborn children,’ including the right to life. On November 6, 2018, Alabama voters overwhelmingly approved the measure, by a margin of 59 percent to 41 percent. The amendment doesn’t actually criminalize anything—but it does pave the way for more extreme restrictions and bans should Roe v. Wade fall.

In 2019, Kentucky passed HB 148, which will trigger a statewide abortion ban if the U.S. Supreme Court overturns Roe v. Wade or if an amendment to the United States Constitution is adopted that, in whole or in part, restores state authority to prohibit abortion. Tennessee passed SB 1257, which is similar to the Kentucky bill but also makes it a Class C felony—punishable by up to 15 years in prison—to perform or attempt to perform an abortion.

In 2019, Georgia Gov. Brian Kemp signed HB 481 into law, which amends state law to define “natural person” to mean “any human being including an unborn child.” The bill includes embryos and fetuses in state population based determinations and amends the state tax code to redefine “dependent” to allow a fetus at any stage of development to qualify as a dependent minor.

Laws