On Fetal Personhood Laws

There are rumblings in the reproductive choice world. Ominous ones. The kind of rumblings that are the beginnings of a drumbeat, a steady march to the steps of the Supreme Court where the anti-choice contingent hopes for a ruling that will overturn Roe v. Wade.

And they are willing to do it in a manner that is sending chills down my spine.

I was reading in Salon about the so-called personhood measure on the ballot in Mississippi. This measure would redefine what it means to be a person in the state’s constitution:

But Initiative 26, which would change the definition of “person” in the Mississippi state Constitution to “include every human being from the moment of fertilization, cloning or the equivalent thereof,” is more than just an absolute ban on abortion and a barely veiled shot at Roe v. Wade — although it is both. By its own logic, the initiative would almost certainly ban common forms of birth control like the IUD and the morning-after pill, call into question the legality of the common birth-control pill, and even open the door to investigating women who have suffered miscarriages.

Drink that in. Think about that. A fertilized egg as a person. A zygote as a person. An embryo, a fetus, as a person. A person entitled to all the protections of the law.

What does that mean for women? What of a woman’s personhood?

We begin with sexuality, where hormone treatments such as the Pill, IUDs, the ring, the patch, can be construed as causing harm to an embryo – zygote, really – because there is a theoretical possibility that an egg can be released and fertilized but prevented from implanting by the hormones in the treatment, therefore harming the “person”. So, those treatments, either as contraception or to manage other conditions could become unavailable, thus making pregnancy prevention more difficult for the individual responsible for her sexual behavior and not ready to be a mother. And the morning after pill would also fall into this new legal quagmire and potentially be banned, thus ending the fallback for women whose primary birth control failed or the woman who has non-consensual sex.

And of course, elective abortion would be banned. But you knew that already.

Then there is the horrible morass of the health of a mother in pregnancy. If it is not permissible to harm an embryo, can a mother receive medical treatments that are known to harm embryos? Or would a woman be forced to forgo treatment because the potential harm to the embryonic “person” is illegal? In the case of an ectopic pregnancy, could the pregnancy be removed before fetal death and before a tubal rupture? Or is that murder? Would the the “personhood” of the embryo outweigh the personhood of the woman? Would its needs outweigh the needs of its mother, her partner, her family?

Are we willing to cede the personhood of an adult woman for the primacy of the personhood of an embryo? Are we?

And what of the mother who fails to get adequate prenatal care due to financial constraints? Would she be charged with neglect? Or would prenatal care become a state service to prevent just that situation? What about the myriad things that a woman can do that are against the “rules” of pregnancy: would a woman eating unmicrowaved cold cuts, or missing her prenatal vitamin, or sipping champagne at a wedding in her second trimester be subject to reporting to some embryonic protection agency? Would the bartender who gave her the glass or champagne be complicit in attempted assault?

Or would we confine a pregnant woman to a strictly regimented facility where no such mistakes could be made, where she would be prevented, by force if necessary, from harming the “person” within her?

What would happen in the case of miscarriage? Would they all be investigated, would certain things in a medical record raise red flags that could lead to a woman being questioned for suspected deliberate harm to the embryo? Would the medical procedures available to end miscarriages still be available or is the risk of potential harm too great? Will women need to be septic from missed miscarriages before they can get a D&C?

I find it too easy, too possible, to imagine this worst case scenario world where, from the moment of fertilization, whether the woman was agreeable or not, a mother-to-be loses her rights, her personhood, and becomes instead a vessel. A vessel whose rights, whose health, whose well-being are secondary to the rights of the embryo.

A second class citizen.

In theory, women should be protected by a state statute abridging her rights to conduct herself as she pleases in regards her health and welfare before, during and after pregnancy by this portion of the 14th Amendment to the U.S. Constitution:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But these crusaders in Mississippi don’t care. They see women as potential assailants, villains who, if they don’t accept one rigid path of sexual and reproductive behavior, are murderers in the making who will kill children with pills, with surgery, with immoral behavior. And they see nothing wrong with punishing women, impinging on their life and their liberty, their health and their sexuality.

The troubling facet of this ballot measure is that its intended consequence is passage, followed by court challenges that will take it to the highest court in the land for ruling. A ruling that could over-turn Roe v. Wade and undo abortion protections, even if nothing else about the measure stands as written. For the rank and file anti-choicers, such a ruling might be enough ground gained, a reasonable compromise. And I am frightened that to those of us who embrace the full range of reproductive choices, the loss of ONLY abortion will seem reasonable to us as well. Reasonable compared to the loss of all choices, the loss of our own personhood where reproduction is concerned.


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17 comments for “On Fetal Personhood Laws

  1. Lori
    October 26, 2011 at 7:57 pm

    My brain is spinning, that is a lot to think about and all to plausible in our current environment.

  2. October 26, 2011 at 8:05 pm

    Interesting post.

    I’m a pro-lifer. I’ve always believed that a person is created at the moment of fertilization. I know I’m in the minority and I’m open to the idea that I may be wrong, but that’s what I believe, and so I feel like the Mississippi initiative is just putting into law what I’ve always believed.

    I see what you’re saying about the slippery slope; there are some legitimate complexities with a law like this (as there are with most laws and decisions, including Roe v. Wade).

    However, I think some of the examples are a bit extreme. Will a mother be charged with neglect because she can’t afford pre-natal care? No. I worked as a lawyer/Guardian ad Litem representing children in the child protection system and while financial problems are common among the families involved in the child protection system, they are definitely NOT a legitimate reason to consider a child neglected. There are lots of services and assistance provided for families who need it to ensure that children are properly clothed, fed, etc. If anything, I think that the personhood initiative would likely lead to more assistance for pregnant women with financial problems.

    Medical treatments may be an issue, but I think they are already. I don’t know of any doctor who would ignore the fact that there could be harm to a fetus in the treatment of a pregnant woman. It’s not unheard of to have medical procedures that harm one person but help another. Transplants (kidney, bone marrow, etc) harm the donor and can even shorten their life expectancy, but they still take place regularly. In the case of conjoined twins, doctors sometimes perform surgeries that they KNOW will lead to the death of one twin in order to help the other to survive.

    Just a couple observations from the other side.

  3. April
    October 26, 2011 at 9:01 pm

    What else can you expect from a state with one of the lowest educational scores in the nation?Poverty,poor school systems,and churches on every corner…the perfect mix for legislating morality for the masses..and the masses quietly keep letting their personal rights go down the toilet…

  4. melinda blondeaux
    October 26, 2011 at 9:07 pm

    as a pregnant woman with several chronic health conditions, this scares me. i relied on the birth control pill before i got pregnant to help manage my bleeding disorder (my blood doesnt clot). where does that put women with similar health problems? should our lives be put on the line because the BC failed? declaring a newly fertilized egg a person will NOT stop abortion. it will create more botched back alley abortions, more ingesting of herbs/harmful substances to cause miscarriages, more suicides, more physical AND mental health problems, the list goes on and on. declaring a newly fertilized egg a person automatically makes it to where the health and life and well being of the woman is nolonger important in the eyes of the law. and what about the 1 in 4 pregnancies that end in miscarriage? that means EVERY SEXUALLY ACTIVE OR ABUSED WOMAN could possibly be labeled a CRIMINAL if she cant prove that the miscarriage wasnt intentional. what next? are women going to have to start giving their tampons to investigators during their periods to “make sure no babies were murdered”? this just isnt right. not every womans body can even handle pregnancy. i almost died of starvation during my last pregnancy due to hyperemesis, which the doctors and hospitals refused to give me any help with. and then, the fetus died of heart failure inside of me, the doctor didnt tell me, and i became septic. where do laws like this leave women that experience something similar? and will doctors that did nothing to help get charged with neglect? and what makes this situation even more messed up is that these laws are being made based upon bronze age rules from the bible. sorry, but legislating personal religious morality is wrong.

  5. October 26, 2011 at 9:51 pm

    oh Jesus… hold me.

  6. Krishnabrodhi
    October 26, 2011 at 10:43 pm

    I am more than a little bit tired of all the hair splitting around this. I say call the embryo a person and make it legal in the case of abortion to kill it. Just like a person on death row is a person and it is legal to kill them. Debate and conversation done! Debate all you want about what is right and wrong but as far as the government is concerned there is just legal and not legal.

    @April… don’t be so naive to thing that Mississippi is the only state that legislates morality. That is the racket that every single government from city, to state to federal is in.

  7. October 27, 2011 at 10:02 am

    How very, very The Handmaid’s Tale of us if this ever happens.

  8. October 27, 2011 at 10:06 am

    I fail to see what the backers of this legislation think it will actually accomplish. I mean, do they really think this is going to magically eradicate abortion from the face of the earth? Or just from Mississippi? Or it merely satisfies their own personal, moral/religious needs, lets them sleep at night knowing they are on the side of the angels, and then they can *pretend* abortion doesn’t go on in Mississippi.

    Honestly, what do people care if a baby is born or not? Sorry, maybe I’m dreadfully stupid, but I have yet to hear a valid argument as to how a woman having a baby, or not, makes any difference to anyone except that woman. Especially with a world population approaching 7 billion. We’re not exactly in extinction trouble here, folks, and we’re not really doing a stellar job with the kids who are here. If legislators would put this kind of passion and commitment into…I don’t know, job creation, maybe?? Wow, that would be something. Can you imagine this fervor and determination put to work abolishing NCLB and re-drafting new education policies? Wow, wouldn’t that be Pro-LIFE?!?! Life meaning the life here, now, today, right here, the living children. Not the hypothetical unborn ones.

  9. October 27, 2011 at 12:06 pm

    Sadly, I think our society is on an extremely slippery slope when it comes to regulating women’s bodies and choices. I wish I could share @Sarah P.’s belief that women would not be charged with neglect if they don’t take specified care of a fetus in utero. I never thought I would live at a time where there was even a concern about women using the Pill or an IUD — but this is where we find ourselves. It will only get worse as extreme elements are allowed to flourish.

  10. October 27, 2011 at 12:07 pm

    I also remember when I read the Handmaid’s Tale decades ago and thought how very grateful I was that something like that would never be a reality. Guess I was wrong.

  11. Jessica
    October 27, 2011 at 2:54 pm

    I have always believe that life begins at conception. I am not “anti-choice” as you put it, I am just “anti-choose-to-kill-people.” I am pro choice where it doesn’t affect another person. (such as abortion, the death penalty, assisted suicide, etc). Yes, it is a slippery slope, just like feminism did, this potential law may very well go over-kill. I appreciate the opinions of those who are pro-abortion, but I do not agree with most of them. As for birth control, use a condom. (which, if birth control was banned, should then be free/covered by insurance as much as b.c. is).

  12. Jessica
    October 27, 2011 at 2:56 pm

    believed* (using a new keyboard, hence the typo’s)

  13. amy
    October 27, 2011 at 4:13 pm

    This scares me. It is 2011 and Roe Vs Wade and birth control pills have been around for 4 decades. Why are we looking to head back in time? Is it religion? Is it fact about when life begins? Let’s keep going forward.
    Everyone is entitled to their belief system but when a man can carry a child, at all, then keep the “laws” away from my body. It is like taking a giant step backwards from what has been acheived for womens rights.

  14. Lisa
    October 31, 2011 at 7:20 pm

    so who is going to take care of all the unwanted children? Are all you pro-lifers going to adopt all the unwanted kids? How much money will be added to the women and infant support systems, the school lunch programs, and every other support for all the families that end up with way more babies they can support because birth control is no longer an option? If you are going to take away my right to decide how many children I have, then you need to take responsibility for the consequences.

    Oh, and what about IVF? It is common practice to insert 3 embryos knowing full well that 1 or 2 will not attach to the uterine wall and grow.

  15. November 3, 2011 at 9:05 am

    There is a lot of great food for thought in this post. I do want to address one point in the comments about being “pro-abortion”. I really don’t think you can call anyone, and especially anyone who commented, “Pro-abortion”. No one wakes up and says, “hey, it’s a good day to go get knocked up and then just get an abortion.” It is one of several legal choices a woman has if she finds herself pregnant unintentionally and it is a choice that should remain legal. Hence, the term “pro-choice”. Sorry, but it just really, really bugs me that people think because you believe that abortion should be a legal alternative that means you WANT woman to go out and get regular abortions. I wouldn’t wish having to make that incredibly difficult decision on anyone but if a woman does find herself there, I am vehemently for her having the right to make that choice.

  16. Mimi
    November 14, 2011 at 7:06 pm

    This world is in sad shape! Science has already determined that a fetus is a living being and that life begins at conception…this has not changed!! Why that needs to be denied is beyond me. Just call it like it is. Women want the right to take a life. I’d have so much more respect for you and others if you could just say it like it is in all it’s gore and own it!

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