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States push ‘fetal personhood’ bills despite outrage at Alabama IVF ruling

States push ‘fetal personhood’ bills despite outrage at Alabama IVF ruling
Lawmakers in more than a dozen states have considered efforts to endow embryos or fetuses with legal rights and protections since the start of the year, and at least three states have advanced such “fetal personhood” legislation since February, when an Alabama supreme court decision ruling that frozen embryos are “extrauterine children” unleashed national outrage.

The Alabama state legislature responded to the repercussions of that ruling – which led several of the state’s in vitro fertilization (IVF) providers to halt their work – by passing a bill to protect providers’ ability to offer that treatment. Yet, just hours after the legislature passed those protections, Republicans in the Iowa statehouse passed a fetal personhood bill that amends state law to criminalize causing the “death of an unborn person”.

Related: Alabama law protecting IVF met with both relief and concern: ‘There is more work to be done’

An “unborn person”, according to the Iowa bill, is “an individual organism of the species homo sapiens from fertilization to live birth”. Such a definition would include frozen embryos, which are eggs that have been fertilized by sperm. If passed by the Republicans who control the Iowa state senate, the bill could endanger IVF access in the state. But because the language of the bill is so broad, prosecutors may also try to apply it to a wide range of circumstances. Causing the “death of an unborn person” intentionally through acts like murder, assault or sexual abuse would be a Class A felony, punishable by a life sentence. Doing so unintentionally would be a Class B felony. The bill even specifies that unintentionally causing “the death of an unborn person while drag racing” would be a Class D felony.

State legislators have also recently pushed fetal personhood language in other, less conspicuous areas of law. In early March, the Kentucky state senate passed a bill to establish the right to demand child support for fetuses; that bill has passed to the statehouse, which, like the senate, is dominated by a Republican supermajority.

That same week, the Republican-controlled Utah state legislature sent the governor there a bill that would allow fetuses to seek legal restitution if the fetus’s parent has been killed or injured.

We have to grapple with the implications, because when it’s in law in one area, we see the creep into other areas of law

Dana Sussman, Pregnancy Justice

“Fetal personhood exists in some form or fashion in pretty much every state,” said Dana Sussman, deputy executive director of Pregnancy Justice, an advocacy organization supporting people who face criminalization over their pregnancies. She warned of the sweeping effects of such language even in what seem like narrow contexts. “We have to grapple with the implications, because when it’s in law in one area … we see the creep into other areas of law. Judges will say: ‘Well, it’s a person in this context. So why isn’t it a person in that context?’”

As of 2022, at least 11 states – including Alabama – have what Pregnancy Justice identified as “extremely broad personhood language that could be read to affect all state laws, civil and criminal”, according to a brief by the organization. “Those are the ones that really have the power in their language itself to increase criminalization of pregnant people, to threaten IVF, to threaten forms of contraception and obviously to ban abortion,” Sussman said.

Much opposition to abortion springs from the belief that life begins at conception, and the fetal personhood movement is a natural outgrowth of anti-abortion organizing. But for decades, Roe v Wade curbed the movement’s influence, allowing mainstream Republicans to reap the votes of anti-abortion activists and fetal personhood proponents without having to reckon with the real-world consequences of their policies. Now that the US supreme court has overturned Roe, these seemingly fringe movements are moving into the mainstream and their policies’ consequences are materializing – to many Republicans’ surprise and voters’ outrage.

Fetal personhood has seeped into contexts that may surprise even the people who support it. In Missouri, which has broad fetal personhood language on the books, people convicted of child molestation and statutory rape have argued that that language means courts should base an underage victim’s age not on their date of birth, but on the date of their conception – making them nine months older.

Mary Ziegler, a professor at the University of California at Davis who studies the legal history of reproduction, said many people on the right have never been forced to confront the consequences of fetal personhood’s sweeping impact.

“That’s really what you’re seeing play out in real time,” said Ziegler, who is writing a book about fetal personhood. “Republicans and frankly even people in the anti-abortion movement never really had to answer any of these questions before.”

Several of the bills now under consideration in state legislatures were originally introduced in 2023 but could still become law, according to the Guttmacher Institute, which shared a tally of fetal personhood bills with the Guardian. However, since the Alabama IVF ruling in mid-February – arguably the highest-profile illustration to date of the practical effects of fetal personhood language – related bills have died in Florida, West Virginia and Colorado.

At least 38 states also have “fetal homicide” laws, which establish that homicide charges can be brought for the loss of a pregnancy. Although the mainstream anti-abortion movement contends that it does not want to punish women for their pregnancy outcomes, women in states such as California, Indiana and Texas have faced feticide and murder charges over their own pregnancy losses.

Pregnancy Justice has also uncovered more than 600 cases, filed between 2006 and 2022, where people in Alabama faced criminal consequences over their pregnancies. That’s more than any other state in the country.

In 2018, Alabama became the first state in the country to enshrine a fetal personhood clause into its state constitution, after voters backed a measure to recognize “the rights of the unborn child”, including the right to life. The Alabama supreme court ruling in February cited that clause in the state constitution as a justification for its judgment.

For fetal personhood activists, the ultimate goal is to convince the US supreme court to take up a fetal personhood case, according to Ziegler. Many activists want the court to rule that the 14th amendment, with its guarantees of due process of law and equal protection, covers embryos and fetuses. Such a ruling would establish fetal personhood on a federal scale.

“The idea is to have as many state laws and as many state decisions as you can get saying that a fetus is a person in various contexts, so it becomes more and more incongruous that a fetus is not a person in the context of constitutional law,” Ziegler said. “To say to the court: ‘Don’t you want to harmonize constitutional law with all these other areas of the law? Don’t you see how the states are clamoring for this, the way they were clamoring for the overruling of Roe?’

“It’s part of the very long game,” she said.

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