Conservative states are trying to redefine what it means to be a person as they seek to impose new bans on abortion.
Giving embryos and fetuses the same rights as people raises issues in virtually every area of law, from minor traffic offenses to criminal prosecution.
The fetal personality provision in Georgia’s new abortion law includes embryos, once there is a detectable heartbeat, which is about six weeks old, and fetuses in the population count. Parents can also claim them as a minor dependent for tax purposes, and fathers can be required to pay child support.
“It’s becoming shaky ground or what people call the wild, wild west,” said University of California law professor Michele Goodwin, Chancellor of Irvine. “Are there ways people can manipulate this growing area of law to their advantage?
The Supreme Court’s 5-4 ruling last month striking down the constitutional right to abortion has sparked a flurry of state action to limit access to the procedure. Prenatal or fetal personality laws are seen as a way to outlaw it altogether by protecting the lives of babies before they are born.
The Supreme Court said in its majority-conservative ruling that its ruling was “not based on any opinion as to when a state should consider prenatal life to have legally recognizable rights or interests,” but seemed to bolster the arguments. in favor of fetal human rights. The court said nothing in the nation’s Constitution or legal traditions allows it to adopt the theory that a fetus is devoid of the most basic human right to life.
At least six states were considering proposals in 2022 to ban abortion by establishing the personality of the fetus, according to the Guttmacher Institute, a research group that supports abortion rights. Arizona enacted legislation in April 2021 to give the unborn child rights from conception through birth, but it was blocked by a federal district court on July 11. Judge Douglas L. Rayes said the law was intolerably vague because it is completely unclear what it means to construe and construe Arizona law to “recognize” the equal rights of the unborn child.
As an example of vagueness, Rayes said in a footnote that the Arizona definition of conception “is silent on implantation and therefore includes fertilized eggs that have not implanted (and may never implant) in the uterus”. “An ‘unborn’, it seems, can exist as a legal entity in Arizona even before a woman is medically considered pregnant,” he said. .
Georgia’s abortion law, which includes a provision on the personality of the fetus, was enacted in 2019 but has been stalled by litigation so far.
Prenatal or fetal personality laws have implications far beyond the context of abortion. They could modify the period of early affiliation of a child to health insurance, engage the responsibility of third parties when a pregnant person has a miscarriage after an accident or even complicate expulsions.
A woman in Texas, which has not passed a fetal personality law, tried to get out of a traffic ticket for driving in a HOV lane earlier this month claiming she was 34 weeks pregnant, according to the media.
Some legal scholars argue that the provisions directly conflict with how the Constitution defines a person, leaving them vulnerable to challenges in court. The Fourteenth Amendment ratified in 1868 established citizenship at birth or naturalization and was designed to give former slaves equal civil and legal rights.
“I don’t see how we can have different Fourteenth Amendment personality stages when we clearly have clear language in the Fourteenth Amendment for what happens with human beings, which is birth,” said Carliss Chatman, associate professor of law at Washington & Lee. “All the citizenship rights you get for being born in the United States come from the Fourteenth Amendment.”
Conservatives disagree. The Fourteenth Amendment defines citizenship, not personality, said Josh Craddock, a fellow with the James Wilson Institute on Natural Rights and the American Founding, a conservative nonprofit dedicated to improving understanding of natural rights. .
“The first sentence, which says ‘born or naturalized and subject to their jurisdiction,’ establishes which persons are citizens and are entitled to the privileges and immunities of citizenship, but it does not say that only citizens are persons,” said he declared.
It is unclear under state personality laws whether a fetus would be considered a citizen. If that’s the case, deporting someone who becomes pregnant while in custody becomes more complicated, Chatman said.
How battles over personality play out in contexts beyond abortion will depend on judicial interpretation.
Judges are unlikely to accept an overly broad definition of person and apply it to statutory code in a way that seems patently irrelevant to the law’s purpose, said Evan Bernick, associate professor at Northern Illinois University College of Law and expert on the Fourteenth Amendment.
But what if a pregnant person is involved in a car accident and then has a miscarriage? A convicted driver could potentially be responsible for the loss of a seven- or eight-week-old embryo.
“Obviously there would be resistance to someone compensating or insurance companies compensating someone because they were seven weeks pregnant,” Goodwin said.
It’s also likely there will be more criminal lawsuits related to uterine injuries that could be the basis for child abuse, manslaughter, or even murder convictions, Bernick said.
State prosecutors have wide discretion over the cases they pursue, and people of color have historically been disproportionately targeted with criminal charges, accusing them of engaging in behaviors that caused a miscarriage or a stillbirth.
In 2008, the South Carolina Supreme Court overturned the conviction of Regina McKnight, a black woman who had been convicted of child abuse homicide after giving birth to a stillborn baby girl in 1999. She admitted to using cocaine during her pregnancy. The court ruled that his lawyers had not presented evidence to show that factors other than his drug use could have caused the stillbirth.
“This means that any time you knew or should have known there was a possible risk of pregnancy at that time, any kind behavior known to endanger someone’s own health becomes an issue that makes someone vulnerable to law enforcement and potential prosecution,” Goodwin said.
“What does that mean in terms of smoking cigarettes, in terms of drinking alcohol, in terms of engaging in typical work activities?”
According to the Mayo Clinic, 10-20% of known pregnancies result in miscarriage and about 50% of miscarriages occur because the fetus has an extra or missing chromosome. One in 160 births is a stillbirth each year and the causes of most are unknown, according to the Centers for Disease Control and Prevention.
Georgia’s abortion law states that it explicitly excludes miscarriages, stillbirths and ectopic pregnancies, which can be fatal. An ectopic pregnancy occurs when an embryo implants and develops outside the uterus.