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Fetal Rights Laws’ Impact Extends From Abortion to HOV Lanes

July 27, 2022, 8:45 AM

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 questions in virtually every area of law, ranging from minor traffic violations to criminal prosecutions.

The fetal personhood provision in Georgia’s new abortion law includes embryos, once there’s a detectable heartbeat, which is at about six weeks, and fetuses in population counts. Parents can also claim them as a dependent minor for tax purposes, and fathers can be required to pay child support.

“It becomes an unsteady ground or what people are calling the wild, wild west,” said Michele Goodwin, a University of California, Irvine chancellor’s professor of law. “Are there ways in which people can manipulate this growing area of law for their benefit?”

State Action

The Supreme Court’s 5-4 decision last month overturning the constitutional right to abortion unleashed a wave of state action to limit access to the procedure. Prenantal or fetal personhood laws are seen as a way to outright ban it by protecting the lives of babies before they are born.

The Supreme Court said in its conservative-majority ruling that its decision is “not based on any view about when a state should regard prenatal life as having rights or legally cognizable interests” but seemed to bolster arguments in favor fetal personhood rights. The court said nothing in the Constitution or the nation’s legal traditions allows it to adopt the theory that a fetus lacks the most basic human right to live.

At least six states were considering proposals in 2022 to ban abortion by establishing fetal personhood, according to the Guttmacher Institute, a research group that supports abortion rights. Arizona enacted a law in April 2021 to give rights to the unborn from conception until 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’s entirely unclear what it means to construe and interpret Arizona law to “acknowledge” the equal rights of the unborn.

As an example of vagueness, Rayes said in a footnote that Arizona’s definition of conception “is silent on implantation and therefore includes fertilized eggs that have not implanted (and might never implant) in the uterus.” “An ‘unborn child,’ it seems, can exist as a legal entity in Arizona even before a woman is considered pregnant from a medical standpoint,” he said.

Georgia’s abortion law, which includes a fetal personhood provision, was signed into law in 2019 but was blocked in litigation until now.

Prenatal or fetal personhood laws have implications well beyond the context of abortion. They could change how early a child can be enrolled in health insurance, make third parties liable when a pregnant person has a miscarriage after an accident—or even complicate deportations.

A woman in Texas, which hasn’t passed a fetal personhood law, tried getting out of a ticket for driving in an HOV lane earlier this month by arguing she was 34-weeks pregnant, according to media reports.

Constitutional Conflict?

Some legal scholars argue 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 either birth or naturalization and was designed to give ex-slaves equal civil and legal rights.

“I don’t see how we can have various stages of Fourteenth Amendment personhood when we clearly have clear language in the Fourteenth Amendment for what happens with human beings, which is birth,” said Carliss Chatman, an associate professor of law at Washington & Lee. “All the rights of citizenship that you get for being born in the United states comes out of the Fourteenth Amendment.”

Conservatives disagree. The Fourteenth Amendment defines citizenship not personhood, said Josh Craddock, an affiliated scholar with the James Wilson Institute on Natural Rights and the American Founding, a conservative nonprofit devoted to furthering the understanding of natural rights.

“The first sentence, which says ‘born or naturalized and subject to the jurisdiction thereof,’ establishes which persons are citizens and entitled to the privileges and immunities of citizenship, but it does not say that only citizens are persons,” he said.

It’s unclear under state personhood laws whether a fetus would be considered a citizen. If so, deporting a person who gets pregnant while detained becomes more complicated, Chatman said.

How fights over personhood play out in contexts beyond abortion will depend on judicial interpretation.

Judges aren’t likely to accept an overly broad definition of personhood and apply it to the statutory code in ways that seem obviously unconnected to the purpose of the law, said Evan Bernick, an associate professor at Northern Illinois University College of Law and expert on the Fourteenth Amendment.

But what happens if a pregnant person is involved in a car accident and then miscarries as a result? A driver found to be at fault could potentially face potential liability for the loss of a seven or eight-week-old embryo.

“Clearly there would be resistance to someone compensating or insurance companies compensating an individual because she was seven weeks pregnant,” Goodwin said.

Heightened Scrutiny

There are also likely to be more criminal prosecutions related to utero harms that could serve as basis for child abuse, manslaughter, even murder convictions, Bernick said.

State prosecutors have broad 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 stillbirth.

The South Carolina Supreme Court in 2008 overturned the conviction of Regina McKnight, a Black woman who was convicted of homicide by child abuse after having given birth to a stillborn baby girl in 1999. She admitted to using cocaine while pregnant. The court ruled her lawyers had failed to present evidence to show factors other than her drug use could have caused the stillbirth.

“This means at any point in which you knew or should have known that there was a possible risk of pregnancy at that point any kind behavior that is known to place at risk someone’s own health becomes an issue that makes someone vulnerable to law enforcement and potential prosecution,” Goodwin said.

“What does this mean in terms of smoking cigarettes, in terms of having a drink, in terms of engaging in typical work activities?”

Ten to 20 percent of known pregnancies result in a miscarriage and about 50% of miscarriages happen because the fetus has an extra or missing chromosome, according to the Mayo Clinic. One in 160 births are stillbirths each year and the causes for most are unknown, according to the Centers for Disease Control and Prevention.

Georgia’s abortion law says it explicitly excludes miscarriages, stillbirths, and ectopic pregnancies, which can be deadly. An ectopic pregnancy occurs when an embryo implants and develops outside of the uterus.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com