The Legal Assault on Pregnant People’s Personhood: Unpacking Fetal Personhood

Introduction

Fetal personhood is a radical legal doctrine that seeks to endow fertilized eggs, embryos, and fetuses with full rights and legal protections. Fetal personhood directly challenges the rights of women and anyone capable of pregnancy and creates a direct conflict between pregnant people’s rights and those of so-called “unborn children.” By elevating embryonic and fetal rights over the rights of women and pregnant people, anti-abortion proponents use legal and policy frameworks informed by fetal personhood principles to impose government surveillance over women’s bodies for the purpose of social and political control. As fetal personhood increasingly influences judicial decisions, statutes, and state constitutional amendments, it has led to: the criminal prosecutions of pregnant people for a myriad of actions deemed to pose even a risk of harm to an embryo or fetus; forced medical interventions during pregnancy; threats to in vitro fertilization (IVF) care; and denials of life-saving obstetric and abortion care, all under the guise of protecting “fetal life.” Fetal personhood diminishes the rights of women the moment they become pregnant and directly impacts anyone who might have the potential for pregnancy.

Historical context reveals that some of the nascent seeds of federal personhood doctrines were planted in the United States at the end of the transatlantic slave trade in 1808. With the international importation of enslaved people brought to an end, the reproductive servitude of Black women became even more pronounced, with their reproductive labor—tied to their capacity to “produce” more enslaved people—becoming the central means through which to add to the capital of white enslavers, up to and including founding patriarchs like Thomas Jefferson. The fetus signified wealth for white enslavers and its gestation was necessarily, if dissonantly, divorced from the mother’s humanity.

Broad fetal personhood concepts— redefining a person to include fertilized eggs, embryos, and fetuses—have existed in a patchwork of state laws and judicial decisions since at least 1989. But fringe fetal personhood principles have gained traction and slowly marched towards normalization after Roe v. Wade established a national constitutional right to abortion in 197311 and have only created devastating and lasting impacts for and on reproductive justice in the decades since. A national constitutional amendment called the Human Life Amendment was introduced, but never passed, in Congress just days after Roe was decided. State legislatures and courts soon picked up the mantle, however, embedding the concept of fetal personhood into state laws and judicial decisions. On the federal level, members of Congress have introduced the Life at Conception Act nearly every year over the last decade, including in 2021 and 2023, in an effort to codify fetal personhood nationwide.

The U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe, supercharged the legitimization of fetal personhood as an actionable legal principle. Peppered throughout the decision are discussions of the jurisdictions and institutions that view a fetus as an “unborn human being,” views that are then relied upon to distinguish Roe from other substantive due process cases granting civil rights, suggesting that abortion is distinct due to its “destruction of… ‘potential life.’” Indeed, Justice Samuel Alito’s majority opinion presented fetuses as “an underrepresented constituency in need of judicial protection” while the majority’s nod to Justice Clarence Thomas’ view that abortion is a form of “racial genocide” normalized the idea that “fetuses [are] a minority group” entitled to equal protection and have full constitutional protections. The opinion paid little attention to amicus arguments that the Fourteenth Amendment’s equal protection clause offers an independent basis for abortion rights given the inextricable connection between the ability to control one’s reproduction and sex and gender equity, exposing the deep sexism and misogyny animating the Dobbs decision. The equal protection clause argument was dismissed in a single sentence. What initially had functioned as a means to preserve profits through the invasive state regulation of Black women’s reproductive functions had now become universalized to all women and pregnant people under the guise of a states’ rights interest in protecting “unborn life.

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