Fetal Personhood Promises to Be Next Major Fight in Abortion War

Is a fetus a constitutional person?

After the US Supreme Court’s Dobbs v. Jackson Women’s Health Organization opinion overturned Roe v. Wade, this is now an open question. Answering it is the new legal frontline in the battle to protect reproductive rights.

When the Supreme Court decided Roe in 1973 it rejected arguments by Texas that its restrictive abortion law was constitutional because it had an interest in protecting fetal life.

After reviewing legal history, including 22 occurrences where the term person was used in the Constitution, the court rejected this argument, concluding that “‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

Rejecting constitutional personhood was central to the court’s protection of reproductive rights in Roe.

Yet when the court overturned Roe it said the Constitution, including the Fourteenth Amendment, does not protect a right to abortion. In its decision, the court did not address the issue of fetal personhood, leaving the issue of abortion rights to the states to decide.

Some states have moved to restrict abortion, while many others have enacted their own laws or constitutional amendments, such as California, Michigan, and Vermont. The presumption has been that state laws or constitutional language will insulate and protect abortion rights.

Congressional Action

But what if Congress were to pass a law saying a fetus is a person, or a future Supreme Court were to reverse itself and say a fetus is a constitutional person under the Fourteenth Amendment?

Consideration of what rights a fetus might have as a person is where the new battle over abortion is headed.

Right now, because of federalism considerations, the Supreme Court lacks the authority to invalidate state laws protecting abortion laws or reproductive rights.

But Congress could pass a law on fetal personhood, and the Supreme Court could uphold that law—changing everything. This is because of the Constitution’s Supremacy Clause, which makes the US Constitution and federal law the supreme law of the land. Such a decision could override federalism and invalidate state abortion laws.

Further, if personhood is defined to begin at conception, then many birth control laws could be struck down as unconstitutional. Constitutional personhood would not necessarily guarantee these results, but it would force states that protect abortion and reproductive rights to consider whatever rights a fetus may possess.

Congress could address this by passing a Fetal Rights Civil Rights Act enumerating such rights.

Opening Pandora’s Box

If a fetus is considered a person, there are several additional implications.

Assuming personhood begins at conception, would individuals be nine months older at birth? How would this affect laws on voting, drinking, securing driver’s licenses, or qualifying for Social Security or retirement? Or how about age of consent laws for marriage or sex? How might it affect criminal liability for juveniles being tried as an adult?

If a fetus were a person, would a pregnant person need a visa or passport for the fetus? Would a fetus be held criminally liable if pregnancy complications endangered the life of the person carrying the fetus?

Conversely, would use of the morning after pill be murder? Would a fetus have inheritance rights? Would it be considered murder if extra fertilized eggs used for in vitro fertilization are destroyed? Could a divorcing couple sue over custody rights of a fetus and thereby force a person to carry to term? Should courts appoint guardians ad litem to a fetus and let a third party represent it in child support or medical decisions affecting it? What rights should a fetus have if a pregnant person is arrested or incarcerated?

Over the next few years this is ultimately where the fight over reproductive rights is headed.

For those opposed to abortion, overturning Roe was only the first step. The next is to declare whether a fetus is a constitutional person.

How the Supreme Court may ultimately decide this could have significant implications for states and Congress seeking to protect abortion rights.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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David Schultz is a distinguished university professor of political science and legal studies at Hamline University and a professor of law at the University of Minnesota.