When Missourians head to the polls in November, they may get to vote on whether to overturn their state’s near-total abortion ban and legalize abortions up to the point of fetal viability.
But one lawmaker says the results of that vote may not matter if his colleagues approve his bill declaring that fetuses are people.
Missouri state Rep. Brian Seitz, a Republican, plans to reintroduce a bill in January that would grant “unborn children” the same rights as newborns, building on a similar Missouri law that has been on the books since the 1980s.
Seitz said the bill would provide protections for embryos and fetuses “regardless of that vote in November.”
Absolute abortion bans remain unpopular, even in conservative-led states and among Republican women. So during this legislative session, many GOP state lawmakers pivoted to protecting the rights of fertilized eggs, embryos and fetuses. And when the national Republican Party released its official platform in July, it made no mention of a federal abortion ban. Instead, the GOP affirmed states’ prerogative to pass laws protecting life under the Constitution’s 14th Amendment, which has been used in legal arguments to support fetal personhood.
Fetal personhood, a longtime cornerstone of the anti-abortion movement, is the idea that a fetus, embryo or fertilized egg has the same legal rights as a person who has been born. If the law considers fetuses to be people, the thinking goes, then abortion would legally be considered murder.
At least 19 states — either through state law, criminal statutes or case law — have declared that fetuses at some stage of pregnancy are people, according to a 2023 report from Pregnancy Justice, a nonprofit that conducts research and advocates for the rights of pregnant people, including the right to abortion.
When a pregnant person’s rights conflict with fetal rights, fetal rights tend to trump them.
Missouri is one of several Republican-led states where lawmakers have taken a renewed interest in fetal personhood legislation in the two years since the U.S. Supreme Court’s Dobbs decision overturned Roe v. Wade and dismantled the federal constitutional right to abortion.
“If you elevate a fetus to the status of a person and grant it citizenship rights equal to that of a pregnant person, then now you have a clash of rights,” said Rebecca Kluchin, a history professor at California State University, Sacramento, who is writing a book on the history of efforts to establish fetal personhood in the United States.
Kluchin said one goal of the recent fetal personhood bills is to get a case before the U.S. Supreme Court. The Dobbs decision, and the conservative bent of the current court, have created an environment where lawmakers are saying, “Let’s try it,” she said. “If one of them gets it right, then others can pass identical laws.”
Seitz thinks his bill could fulfill that purpose.
“If it does get to the Supreme Court, due to the makeup of the court right now, I think they would see this commonsense legislation is, in fact, truth,” he said.
Critics, meanwhile, warn of legal chaos. The possible implications of fetal personhood bills extend far beyond abortion — to fertility treatments, birth control and even child tax credits. In states that have enacted such laws, pregnant women have faced criminal charges for actions that might harm their pregnancies.
“When a pregnant person’s rights conflict with fetal rights,” Kluchin said, “fetal rights tend to trump them.”
IVF’s chilling effect
Seitz’s bill didn’t make it out of committee before Missouri’s legislative session ended in May.
He attributed that failure to the GOP’s reluctance to push an anti-abortion bill in an election year, a concern that might have been justified: Missouri abortion rights supporters gathered more than double the number of signatures needed to get their constitutional amendment on the ballot. As of press time, the ballot petition signatures were still being reviewed by local and state officials.
But Seitz said the bill will be the first he introduces when the legislature returns in January. With election season behind them, he said, “I think it will be very easy for my Republican colleagues to come on board and support this.
Conservative lawmakers in Alaska, Illinois, South Carolina and West Virginia introduced similar fetal personhood bills in their most recent legislative sessions, though none made it out of committee.
Then in February, the Alabama Supreme Court ruled that embryos created through in vitro fertilization are children under state law, and that people can be held liable for destroying them. The court cited Alabama’s constitutional amendment, passed by voters in 2018, that confers personhood on fetuses and affirms the state’s responsibility to protect “the rights of unborn children.
The court’s decision generated a national uproar, ignited bipartisan ire and halted fertility treatments statewide until Alabama’s Republican supermajority legislature hastily passed a law protecting fertility service providers.
The backlash underscored how many lawmakers hadn’t fully considered the far-reaching implications and legal bedlam that can be created by fetal personhood laws.
And it had a chilling effect on fetal personhood bills.
In February, a Florida Republican state senator sidelined her bill that would have covered fetuses under wrongful death lawsuits after some lawmakers worried it would hurt IVF providers.
In March, the Iowa House passed a bill to criminalize “the death of an unborn person,” but Republicans in the Senate declined to take up the bill over concerns it could criminalize IVF.
Similarly, the Kentucky House refused to hear a bill that the Senate passed that would have granted the right to retroactively collect child support for costs incurred during pregnancy.
Through the back door
Last year, Arizona Republican state Rep. Matt Gress introduced five pregnancy-related bills that he said were inspired by his experience growing up in a family headed by a single mother.
“I’m the youngest of four and raised by a single mom in a single-wide trailer house in rural Oklahoma. We grew up very poor,” Gress said in an interview with Stateline. “These bills, to me, represented a policy approach that helps women and families.”
One of the bills would have allowed families to retroactively claim child tax credits in the year before a baby is born; another would have allowed pregnant women to drive alone in a highway car pool lane, their fetus counting as a separate passenger.
Yet another bill would have allowed a woman, after having a baby, to collect child support backdated to the date of her positive pregnancy test.
Arizona’s Democratic state legislators accused Gress of taking a back-door approach to inserting fetal personhood language into state law. But Gress denies that codifying fetal personhood was his intent.
“That didn’t even cross my mind,” he said. “The way I read the bills, there were no rights being afforded to anybody besides women and families.”
Gress noted that he was the first Republican, and one of the few, who supported Democratic state legislators’ bid to repeal Arizona’s near-total abortion ban, which dated to 1864. The repeal effort eventually succeeded in early May.
Arizona’s legislature passed two of Gress’ pregnancy bills, but Democratic Gov. Katie Hobbs vetoed both. Gress said he doesn’t intend to reintroduce the bills unless a new governor is elected who might support them.
Republican and Democratic lawmakers in Alabama, Kansas, Kentucky, Mississippi and Missouri tried but failed to pass similar fetal child support laws this year. Georgia’s 2019 “heartbeat law,” which went into effect in 2022, grants child support benefits for fetuses.
Republican U.S. Rep. Mike Johnson of Louisiana, now the speaker of the House, introduced a similar bill in Congress in 2022, and was explicit about its purpose. In a statement, he called it a “first step” toward updating federal laws to reflect that “life begins at conception.”
Beyond abortion
Fetal personhood laws, like abortion bans, end up having broader effects on all pregnant people and pregnancy-related care, said Dr. Daniel Grossman, an OB-GYN and the director of Advancing New Standards in Reproductive Health, a research program at the University of California, San Francisco, which focuses on abortion and reproductive health.
Grossman points to cases in which pregnant patients experiencing obstetric emergencies had to be airlifted out of states with strict abortion bans, such as Idaho, because doctors were afraid of violating the law.
In states such as Florida, North Carolina and Texas, pregnant women who weren’t seeking abortions but who experienced possible miscarriages or other emergencies have been turned away from hospitals. Stories of pregnant women being turned away from emergency rooms spiked after Roe was overturned, a recent Associated Press investigation found.
Fetal personhood has implications for birth control, too
Hormonal contraceptive methods such as IUDs and birth control pills typically work by preventing an egg from being fertilized, but there’s a small chance that some forms can also prevent a fertilized egg from being implanted in the uterus, said Grossman. So, if state law considers a fertilized egg a person, that could create a legal basis for banning any contraception that could possibly prevent implantation.
Grossman also worries about increased scrutiny these laws create for people who experience miscarriage or stillbirth.
“Before Dobbs, people were arrested and criminally prosecuted for allegedly trying to end a pregnancy on their own,” he said. “I’m already concerned that’s going to become more common, especially in places with fetal personhood laws.”
The laws also have resulted in women being criminally charged for actions that might harm their pregnancies, said Lourdes Rivera, president of Pregnancy Justice.
Rivera’s organization documented nearly 1,400 instances of pregnant women being charged, often for substance use, in the 16 years leading up to the June 2022 Dobbs decision. Most of the cases occurred in a handful of Southern states — including Alabama, South Carolina and Tennessee — that have expanded their definitions of child abuse to include fetuses, fertilized eggs and embryos.
Nearly 85% of pregnancy criminalization cases in the Pregnancy Justice report involved charges against a pregnant person who was legally indigent, and the laws were disproportionately applied to poor women and women of color, Rivera said.
“These laws are forcing pregnant people to give up their bodily autonomy, their health and well-being,” she said, “and to be surveilled and criminalized for actions that would not be criminal if they were done by people who were not pregnant."
AUTHOR: Anna Claire Vollers covers health care for Stateline. She is based in Huntsville, Alabama.
Stateline is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
https://stateline.org/2024/07/31/conservatives-push-to-declare-fetuses-as-people-with-far-reaching-consequences/?utm_source=substack&utm_medium=email
