When Women Have Fewer Rights Than a Fetus

At what point in a woman’s pregnancy does she lose her fundamental civil rights?

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Dec 21 2018, 6:48pm

Photo by Ralf-Finn Hestoft/CORBIS/Corbis via Getty Images

During the November midterms, voters in Alabama passed an amendment granting constitutional personhood to fertilized eggs and fetuses. As a result, Alabama’s state policy now “recognizes and supports the sanctity of unborn life and the rights of unborn children, including the right to life.” Additionally, voters have modified the state constitution to remove the right to an abortion or funding for abortion within the state, paving the way to render abortion effectively illegal in Alabama should Roe v. Wade be overturned in federal court.

This amendment is known as a “trigger law,” which are regulations that are ineffective unless federal law changes. Should Roe v. Wade be overturned with the current conservative majority, the legality of abortion would be bumped down to the states to be determined on a state-by-state basis. Alabama has now preemptively created a legal environment that would criminalize abortion immediately, with no exemptions in cases of rape, incest, or the health of the mother. Five other states, Louisiana, Mississippi, North Dakota, South Dakota, and West Virginia, have all passed similar trigger laws, while pre- Roe abortion bans remain on the books in nine additional states, creating a situation where tens-of-thousands of women in at least 15 states could be without abortion access.

Fetal personhood laws are merely the latest attempt by anti-abortion proponents to enact severely restrictive laws in the hopes of inspiring a constitutional challenge fit for a conservative Supreme Court ruling that would strike down Roe. In Ohio, for example, one of the country’s most restrictive abortion bills has already been approved by state lawmakers, is sitting on the desk of Governor John Kasich, and only needs his signature to enact into law. The law would not only outlaw abortion once the fetal heartbeat is detected, at about six weeks, but also establish a felony punishment for any doctors who perform an abortion on a fetus who has a detectable heartbeat. Representative Christina Hagan, the lead sponsor of the bill, made her goals painfully clear in a interview with The New York Times: “We believe Ohio is best positioned to send this through the Circuit Courts and to the federal Supreme Court.” Hagan’s comment demonstrates a coordinated effort to completely undermine the rights guaranteed under Roe, so much so that abortion could become unattainable for most women living in her state. This incrementalist approach seeks to erase abortion access without having to actually overturn Roe. Should Hagan’s heartbeat bill face a challenge and is affirmed by the federal Supreme Court, trigger laws, such as Alabama’s personhood amendment would immediately go into effect.

While the passage of extreme anti-abortion measures across the country is gravely concerning, Alabama’s personhood amendment is particularly disturbing. In part, because personhood amendments have been proposed many times in the past and failed to gain support even in conservative states such as in Oklahoma and Mississippi. Across the country, voters and justices have regularly rejected personhood proposals as unconstitutional, as the amendment would interfere with a woman’s constitutional right to an abortion. However, with conservative support in both the White House and in the judiciary, anti-abortion supporters see an opportunity to push legislation forward. Since coming into office in 2017, the Trump administration has slashed funding to global organizations that provide birth-control and abortion referrals, ended the birth-control mandate, placed anti-abortion extremists in key positions within his administration, and has appointed a dozen and a half anti-abortion federal district court and appeals court judges. As a result, anti-abortion organizations are singing his praises, with the understanding that this is the best chance they’ve got to gain judicial support.

Emboldened by the current administration’s rhetoric and policies, conservative reproductive policies have been enjoying relative success. The passage of Alabama’s personhood amendment is an example of this shift. The implications of such draconian policies have dire consequences. To grant fertilized eggs, embryos, and fetuses the same constitutional rights as a child means that many forms of birth control, as well as procedures such as in vitro fertilization would also be outlawed. Additionally, the amendment would allow the state to criminally investigate and prosecute pregnant women who experience a miscarriage or stillbirth, or who might do something as simple as missing a prenatal care appointment. Essentially, personhood laws elevate fetal life to a status that is more important that the health, wishes, and life of the woman carrying the fetus.

In the United States, the rights of a “person” is defined by the 14th Amendment, guarantee the basic rights to life, liberty and the pursuit of happiness. Currently, as a result of Roe v. Wade, the court has decided that “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.” This careful distinction was made to balance the interests of the woman against the interests of the state. Expanding the definition of personhood places a direct conflict between the rights of a pregnant woman and that of her fetus, which forces us as a society to determine at what point in a woman’s pregnancy does she lose her fundamental civil rights? The very nature of the fetus, as incapable of surviving outside of the woman’s womb, creates an ethical dilemma when granted the same legal rights as an autonomous human being.

In her book, Pro: Reclaiming Abortion Rights, author Katha Pollitt, explains the superhuman status of the fetus under the aegis of fetal personhood. Unlike a born child, a fetus enjoys total governance over a woman’s body and life. Of course, parents have a responsibility to care for their children. However, they are not legally mandated to sacrifice their body to preserve the life of their child. Not only would fetuses gain the same rights as you or I, a fetus would also have unprecedented authority over others.

The fetus has more rights to her body than she does herself.

Pollitt offers a compelling illustration of this inequality: if a child is sick and requires a vital organ or blood transfusion to survive, parents are not legally required to donate their organs or blood to their children, even if they are a match. A parent who refused would not be arrested, and the hospital would not restrain, anesthetize, and operate on a parent who could provide a life-giving organ to the child. However, with a personhood amendment in place, a pregnant woman is legally compelled to provide her body to preserve the life of a fetus, regardless of it’s gestational age, and regardless of the physical harm to herself. The fetus has more rights to her body than she does herself.

Bodily autonomy is at the foundation of the abortion debate. While the personhood movement represents a tangible manifestation of physical control vis-à-vis the womb, historically, women have occupied a relegated social and economic space while deriving power through motherhood. For a millennia, female agency has been defined by the family unit, and the role of the mother exalted through the deification of the child à la “life is a miracle” (actually, it’s science).

The advent of abortion and birth control has provided women with the tools to control their fertility and their futures, yet, the pro-choice movement finds itself in direct conflict with the theological dictates which defines motherhood as a woman’s highest aspiration. To end abortion is to end female agency. This has been illustrated time and time again, from calls to “protect the most vulnerable in society” (what about the vulnerability of women?), to “speak for the voiceless” (what about the voices and experiences of women?), and to the façade of “pro-life” (what about the lives of women?). Each rallying cry erases the voices of women. Each new anti-abortion measure is an exercise of power over female agency. The fetus is a proxy for social control.

To end abortion is to end female agency.

While, luckily, personhood amendments are ineffective so long as Roe remains the law of the land, the passage of these laws send a strong message: that the lives and liberties of women are not valued. That, regardless of the current law, the state conceptualizes pregnant women as human-hosts rather than autonomous people, degrading the moral value of the mother to that of an incubator. Culturally and politically, the personhood “movement” supported by conservative anti-abortion proponents has created a chilling memorandum on the value of women as less than people. The right to abortion is not the only liberty that hangs in the balance of this culture war, but also the fundamental rights of all women to be free.