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Giving Fetuses Legal Rights Could Be a Nightmare for Women, Advocates Say

"This is a statute that arguably makes every criminal law applicable to the pregnant women."

by Carter Sherman
May 22 2019, 7:10pm

Murdering a human being is, unsurprisingly, illegal in Georgia. But under the state’s new abortion ban, the definition of human being now includes “an unborn child” — like, say, a fetus a woman plans to abort.

Emboldened by a president who supports their policies and a Supreme Court they’re sure would overturn Roe v. Wade, Republicans have spent the 2019 legislative session enacting increasingly aggressive abortion restrictions in states. They’re attempting to codify a concept essential to pro-life logic: that a not-yet-viable fetus is a person, worthy of legal rights and protections.

If enough states start to grant fetuses legal rights, even in arenas beyond abortion, the Supreme Court justices could have the justification they need to overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide. And advocates say that laws like Georgia’s could create legal chaos and lead to criminal charges against pregnant people.

“This is a statute that arguably makes every criminal law applicable to the pregnant women,” Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, said of Georgia’s law. “So it could be child abuse. It could be murder. It could be manslaughter. It could be kidnapping. If you travel outside the state while pregnant, is that kidnapping if the ‘natural person’ is an ‘unborn child’ with a detectable human heartbeat?”

Many abortion restrictions, even ones that impose criminal penalties for doctors who perform abortions, explicitly exempt women from liability. But Georgia’s law doesn’t. And since the language recognizes fetuses as people, prosecutors could decide that getting an abortion amounts to homicide, a crime that can carry a sentence of life in prison.

"This is not just crazy theorizing."

This year, four states — Georgia, Kentucky, Ohio, and Mississippi — have passed so-called “heartbeat” laws that would ban abortion as early as six weeks into a pregnancy, when a doctor can detect a fetus’ heartbeat. Missouri’s Legislature also passed a bill last week to ban abortion after eight weeks. And days earlier, Alabama passed a law to ban almost all abortions in the state, with no exceptions for rape or incest.

Roe v. Wade was decided that the baby in the womb was not a person,” Alabama state Rep. Terri Collins, who sponsored her state’s ban, said last week. “So this bill bases its reasoning that the baby in the womb is a person.”

The laws all use language that characterizes fetuses as humans. But only Georgia's clearly gives fetuses rights and bestows them with what the law calls “full legal recognition.”

The heartbeat laws and Alabama’s ban aren’t currently in effect, and they will almost certainly be blocked by court challenges. But so-called “personhood” measures have already crept into other parts of the law.

“Fetal personhood is kind of an infinitely complicated topic with potentially infinite unintended consequences, because once you recognize a fetus as a person, they could have rights in all kinds of contexts,” said Mary Ziegler, a professor at Florida State University College of Law who’s written two books about the fight over abortion rights. “So you would have to work out what it meant for everything from inheritance law to tax law to civil liabilities rules to criminal law.”

If Georgia’s law, for example, goes into effect, the state would have to include fetuses in any “population-based determinations” and write them as a “dependent minor for income tax purposes,” according to the bill.

“Not just crazy theorizing”

Fetuses already have rights. If a pregnant woman is murdered, 38 states now let prosecutors file fetal homicide charges recognizing that a fetus can be killed and that its killer should be punished; 29 of these states’ laws can be applied from the moment of conception. Pregnant women are also routinely penalized for exposing their fetuses to drugs.

“This is not just crazy theorizing,” Paltrow said. “These arguments are already being made and used to control not just abortion but the lives and bodies of pregnant women now.”

Under a recent personhood bill in Texas, which did not pass, prosecutors would be able to pursue the death penalty for women who got abortions.

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This photograph released by the state shows Alabama Gov. Kay Ivey signing a bill that virtually outlaws abortion in the state on Wednesday, May 15, 2019, in Montgomery, Alabama. (Hal Yeager/Alabama Governor's Office via AP)

Abortion rights advocates are split over the Georgia law’s consequences for women. Farah Diaz-Tello, senior counsel for If/When/How Lawyering for Reproductive Justice, doesn’t believe that they could be convicted for getting an abortion. “That’s not how the legal interpretation is allowed to work,” she said. “It can’t be a little bit from this section of the code, a little bit from that section of the code.”

“At the same time, there’s nothing saying that there’s not a prosecutor who’s gonna try that,” she added.

Take the case of Sara McKenna, who briefly lost custody of her son to his father, Olympic skier Bode Miller. She moved from California to New York in 2013 when she was seven months pregnant. After she gave birth, a New York judge decided that McKenna’s decision to move across the country amounted to “appropriation of the child while in utero.” The judge called her conduct “irresponsible, reprehensible.”

Women’s rights groups, like Paltrow’s, leapt to McKenna’s defense, and she eventually won custody of her son back. But if New York law recognized fetuses as people, at that time, she might have lost that case, according to Paltrow.

Five years later, Alabama became the first state in the country to enshrine fetal personhood in its constitution, when voters agreed to amend the state’s constitution in a November 2018 midterm ballot initiative. The language committed to “the rights of unborn children, namely the right to life.” And then in March, an Alabama judge granted an aborted fetus the legal standing to sue the clinic that had aborted it. The case is thought to be the first of its kind.

Because its implications are so vast and complex, the push for personhood is controversial even among anti-abortion activists. The Personhood Alliance, which aims to provide “legal protections to every human being, from biological beginning to natural death,” doesn’t support prosecuting women for getting abortions. The group didn’t back the Georgia law, because it includes exceptions for rape or incest.

“If you do view the child as a person, then, really, they are not at fault for the crimes of the dad,” said Gualberto Garcia Jones, president of the Personhood Alliance, which has affiliates in more than 20 states. “We try really hard to keep a principled stance on this, and it’s not always easy. And I know we’re certainly criticized for it by people inside the pro-life movement and outside.”

Even President Donald Trump — who theorized at a March 2016 town hall that “there has to be some form of punishment” for women who get abortions — doesn’t agree. Over the weekend, he tweeted his support for abortion in the cases of rape, incest, and pregnancies that threaten the mother’s life. He also seemed to suggest that anti-abortion activists had overplayed their hand.

The “Blackmun hole”

When Justice Harry Blackmum wrote the majority opinion in Roe v. Wade, he concluded that when the Constitution refers to a “person,” that does not include “the unborn.” But if it did, that would be a huge problem for abortion rights supporters: “If this suggestion of personhood is established, [Roe’s] case, of course, collapses,” Blackmun wrote.

That line has led personhood advocates to believe that the map to overturning Roe has been buried in the decision all along.

“The idea that a fetus is a person is the ‘Blackmun hole.’ And they’ve been trying to fill that hole by changing the law in as many places as possible,” said Diaz-Tello.

“So that when the court has the opportunity to revisit Roe v. Wade, when they do that scan of what the laws say in the United States again, they’ll find a changed landscape,” she continued. “That would be the justification they need to overturn Roe v. Wade.”

It’s worked before. In 2013, the Alabama Supreme Court handed down the kind of opinion that personhood activists had spent years trying to engender.

Two women, Amanda Kimbrough and Hope Ankrom, had been charged with felonies under a “chemical endangerment” statute meant to keep children from being exposed to dangerous home meth labs. But neither woman had done that. Ankrom’s newborn had tested positive for cocaine, and Kimbrough had used meth while pregnant and given birth to a premature son who died.

The Alabama Supreme Court upheld their convictions. The judge who wrote the majority opinion spent 21 pages excavating scores of laws — in Alabama and beyond — that gave fetuses legal standing, like being able to inherit property or being represented in court.

“The decision of this court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law,” he declared in a concurring opinion. “Today, the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of the dictates of Roe.”

Even with victories like that, the Personhood Alliance isn’t particularly focused on overturning Roe. Right now, the group’s president said that a ruling like that would be deeply polarizing for the country. He suspects the justices don’t want to be so dramatic anyway.

Instead, the Personhood Alliance is drawing inspiration from an unlikely group of people: the marijuana legalization movement.

“They’ve been able to use very local forums and kind of incrementally challenge the observance of the federal law,” Garcia Jones said. (The Alliance doesn’t support legalizing weed.) “Once we’re able to change local culture and get people involved at a local level, that will trickle up into politics and into law.”

Cover image: Protester Deanna Holland holds her signs as activists gathered in the Utah State Capitol rotunda to protest abortion bans happening in Utah and around the country Tuesday, May 21, 2019, in Salt Lake City. (AP Photo/Rick Bowmer)