JURIST Guest Columnist Ed Goldman of the University of Michigan says that fetal personhood laws, which would declare a fetus to be a person from the time of conception, would have a wide range of consequences for women’s medical care, stem cell research, and the availability of contraception…

In Roe v. Wade, the Supreme Court advanced the privacy rights of women by holding that a woman has the right to an abortion until the point of fetal viability. Even after the point of fetal viability a woman could have an abortion if her health or life were at risk. The Court held that the states had an obligation to preserve the health and privacy rights of women by making abortion safe and legal while also acting in the “best interests” of the fetus. The Supreme Court established, as a matter of law, that neither the state nor the federal government can provide a fetus rights superior to those of the pregnant woman. Writing for the Court, Justice Blackmun explained that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

In the opinion Justice Blackmun wrote:

Texas urges that, apart from the Fourteenth Amendment life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

After discussing various religious beliefs, he settled on viability of the fetus as the point at which the state and federal government have the legal ability to intervene and act to protect the fetus even over the desires of the mother, except if the mother’s life or health is at risk. He concluded that, “the right, [to an abortion] nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant.” He also stated that, “[i]n areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.”

In Roe Texas argued, unsuccessfully, that life begins at conception and that the mother, therefore, can have no right to abortion. In the time following Roe various groups tried to reverse the decision but have not been successful. Now, there is a new attack on Roe. This approach can be seen most clearly in the federal and various state Unborn Victims of Violence Acts and the proposed “personhood” bills in various State legislatures. The federal Unborn Victims of Violence Act recognizes a “child in utero” as a legal victim if he or she is injured or killed during the commission of certain federal crimes of violence. The law defines “child in utero” as a member of the species Homo sapiens at any stage of development, who is carried in the womb. Although the act makes exceptions for abortion, claiming that a fetus, once conceived, is a child is clearly at odds with Roe. The “personhood” laws that have been introduced seek to establish, as a matter of law, that once an egg is fertilized a person exists. On November 8, Mississippi voters turned down a proposed constitutional amendment that defined a person as every human being from the moment of fertilization. The Colorado-based group advocating for the amendment, Personhood USA, is pushing for similar bills on the 2012 ballots in Florida, Montana, Ohio and Oregon. Voters in Colorado rejected similar proposals in both 2008 and 2010. Michigan and several other states have also proposed similar laws.

In thinking about these “personhood” bills, there are two basic issues to consider. First, what are the medical facts about conception and personhood? Second, what are the legal implications of a “personhood” law?

The medical facts are that a fertilized egg, if it implants into a uterus, can grow and become a fetus; but, the fertilized egg only attaches to the uterine wall in about two-thirds of the cases. Further, In vitro fertilization allows the process of fertilization to occur outside the uterus, meaning that fertilized eggs can be created and maintained ex utero with no chance of ever implanting unless they are placed into a uterus. Some scientists argue, from a religious basis, that human life begins at the moment of fertilization since from that point on a human being could develop. Other scientists argue that human life begins when the embryo attaches to the uterus or when the heartbeat begins.

Of course, this question of when life begins is not the same as asking when an embryo should be granted the same rights as a born person. Jaclyn Friedman of Reproductive Biology Associates, the in vitro fertilization (IVF) clinic in Atlanta, Georgia, commissioned a poll asking respondents when human life began in a biological sense of being an original entity. “We didn’t ask when it’s a person,” she says. “There’s a distinction between when a group of cells is considered living, and when it deserves human rights, and that’s what comes into play with this amendment.”

To the extent that courts have considered this matter, it has been in cases where a state has tried to force a woman into mandatory bed rest, or even a C-section, because that procedure may be in the best interest of her fetus. In the leading case, In Re A.C., the District of Columbia Court of Appeals held that “courts do not compel one person to permit a significant intrusion upon his or her bodily integrity for the benefit of another person’s health … We hold that in virtually all cases the question of what is to be done is to be decided by the patient — the pregnant woman — on behalf of herself and the fetus.” Thus the court recognized, as did the Court in Roe, that a competent living individual ought to have rights superior to the embryo or fetus.

Therefore, what are the implications of a personhood law? If an embryo once created, even ex utero, is a person then:

• The parents may be able to claim a tax deduction for minor children,
• IVF may be illegal since in the case of embryos with lethal conditions, or embryos no longer wanted for reproduction purposes, they are currently destroyed and in some cases they may be damaged by the IVF process,
• Some forms of birth control that prevent implantation, such as IUD’s or the morning-after pill, would be illegal, and perhaps all forms of contraception would be illegal since they could be said to inhibit the creation of a human being,
• Women would lose their constitutional rights to make decisions about their own bodies and lives,
• If a woman had an ectopic pregnancy or some other condition where it was medically necessary to end the pregnancy for the health of the women, that may be prohibited or, at least, place the physician and patient at risk for criminal prosecution,
• Any such law would be challenged since it is in direct conflict with Roe thereby forcing a decision at the US Supreme Court,
• Women would be seen as “transport and delivery systems,” where their primary function during pregnancy, whether planned or accidental, is to produce a living child no matter the medical condition of the child or the desire of the women to have a child. This would be true even if the pregnancy was the result of rape or incest or if the fetus was shown to have a lethal condition,
• Women that have stillbirths or miscarriages could be prosecuted for murder,
• And no embryonic stem cell research would be allowed, since creation of an embryonic stem cell line is done by removing the inner mass from an embryo thereby destroying reproductive capacity. This would be true even if the fertilized egg were medically inappropriate for reproductive use because it carried a lethal disease and even if the persons who created the embryo no longer wanted to use it for reproductive purposes. Under the law, they would be prohibited from asking that it be destroyed and would have to pay to keep it in a freezer forever.

While some believe that personhood laws will restore a “culture of life” in America, others worry that fertilized eggs will be granted rights superior to the women who bear them. Creating “personhood” for fertilized eggs would dehumanize born human beings.

Ed Goldman is an Associate Professor in the University of Michigan Department of Obstetrics and Gynecology where he directs the Program on Sexual Rights and Reproductive Justice and works on legal and ethical issues in women’s rights. He is also an Adjunct Professor at the University of Michigan School of Public Health, where he teaches courses in health law and the legal and ethical aspects of research.

Suggested citation: Ed Goldman, The Conflict Between Fetal Personhood Laws and Women’s Rights, JURIST – Forum, Nov. 17, 2011, http://jurist.org/forum/2011/11/ed-goldman-personhood-laws.php.