The Future Of Abortion Rights: Fetal Personhood Laws

The concept of fetal personhood is central to the debate surrounding abortion laws. Those in favour of abortion rights argue that recognizing fetal personhood would effectively ban all abortions, as it would grant legal rights and protections to the unborn. Currently, 17 states have established fetal personhood by law or judicial decision to apply to criminal law or both criminal and civil laws. Fetal personhood laws grant fetuses, and in some cases embryos and fertilized eggs, the same legal rights and status given to born people, such as the right to life. Once fetal personhood becomes law, abortion rights will be impacted, and the legal rights and status of all pregnant people will change, opening the door to criminalization, surveillance, and obstetric violence.

Criminalisation of pregnant people

Fetal personhood laws grant fetuses, embryos, and fertilized eggs the same legal rights as born people, such as the right to life. This change in legal status for fetuses has a profound impact on the legal rights of pregnant people, who are now vulnerable to criminalization, surveillance, and obstetric violence.

The criminalization of pregnant people refers to the legal prosecution of individuals for actions deemed harmful to the fetus, even when those actions do not result in abortion or birth. This trend has been on the rise in the United States, with nearly 1,400 cases of pregnancy-related criminalization documented between 2006 and the 2022 reversal of Roe v. Wade. The cases show that birth and pregnancy loss are more likely to result in criminalization than abortion.

State actors, including police, prosecutors, healthcare workers, and judges, have deprived pregnant people of their constitutional rights under the pretext of protecting "unborn life". This has led to forced medical interventions during pregnancy, threats to in vitro fertilization care, and denials of life-saving obstetric and abortion care.

The expansion of fetal personhood laws has also impacted pregnancy outcomes beyond abortion. For example, people who self-induce abortions or experience miscarriages may be at risk of criminal prosecution. Additionally, laws that establish fetal personhood could impact contraception access, as some argue that certain forms of emergency contraception prevent the implantation of a fertilized egg, violating the concept of personhood.

The criminalization of pregnant people has serious implications for civil and human rights, particularly for communities of color, the LGBTQ+ community, people with disabilities, low-income people, and people who use drugs. It allows the state to regulate the actions and behaviors of pregnant people, including their medical decisions and treatment options. This can lead to forced medical interventions, such as committing a pregnant person to substance use treatment without their consent or compelling someone to undergo a cesarean section.

Surveillance of pregnant people

Fetal personhood laws have the potential to significantly impact the surveillance of pregnant people. These laws grant a fetus the same legal rights and status as a born person, including the right to life. This change in legal status can open the door to increased surveillance and criminalization of pregnant individuals.

The establishment of fetal personhood can lead to the application of child endangerment laws to pregnant people. This means that a state could potentially regulate various aspects of a pregnant person's life, such as diet and alcohol consumption. In some cases, a state may even compel a pregnant person to undergo specific medical procedures, such as a cesarean section.

The surveillance of pregnant people under fetal personhood laws can also extend to their medical care. For example, a pregnant woman undergoing chemotherapy for cancer treatment may be told to delay care until after giving birth to avoid potential harm to the fetus. This could result in a conflict between the patient's right to make decisions about their health and the state's interest in protecting the fetus as a legal person.

Additionally, fetal personhood laws can impact the use of assisted reproduction techniques like in vitro fertilization (IVF). These laws may also influence contraception access, as some argue that certain forms of emergency contraception can prevent the implantation of a fertilized egg, which would violate the concept of fetal personhood.

The potential for surveillance and criminalization of pregnant people under fetal personhood laws is a significant concern for critics. The state's ability to bestow legal rights onto a fetus can lead to the subjugation of the rights of the pregnant person. This conflict between the rights of the fetus and the pregnant individual can result in a complex legal landscape, with potential consequences for reproductive healthcare access and pregnancy outcomes.

Obstetric violence

In the US, most sources on obstetric violence are non-scientific and come from authors outside the healthcare disciplines. There is a lack of attention to the problem from the disciplines responsible for providing most maternity care services (i.e. nurses, midwives, and physicians). This gap in research highlights a lack of attention to the problem from the disciplines responsible for providing most maternity care services.

The implications of obstetric violence on pregnant women and people can be devastating, particularly for people of colour, immigrants, people with disabilities, and low-income people. It can lead to obstetric racism, where Black women suffer a national maternal mortality rate more than three times that of white women even when socioeconomic and educational attainment are controlled for. It can also lead to the criminalisation of pregnancy, with child endangerment laws being applied to pregnant women and people.

The normalisation of obstetric violence is a significant challenge to addressing the issue. Health care professionals may become desensitised to abuse and no longer recognise it as problematic. It is often difficult for pregnant women and people to challenge obstetric violence, as they may not immediately recognise their experiences as a form of abuse, or they may not have the confidence, ability or opportunity to do so.

To address obstetric violence, it is important to recognise the structural factors that enable and perpetuate it. A systems approach and complexity theory are recommended as solutions to the challenges of studying and correcting obstetric violence. It is also crucial to empower pregnant women and people with knowledge of their rights and to advocate for respectful maternity care that is free from mistreatment, abuse, and unconsented or undignified care.

Infertility treatments become vulnerable to legal challenge

Fertility treatments such as in vitro fertilisation (IVF) and other assisted reproductive technologies (ART) are vulnerable to legal challenges in the wake of fetal personhood laws. This is because these laws grant fetuses, embryos, and even fertilized eggs the same legal rights and status as born people, including the right to life.

Impact on IVF and ART

If legislatures designate embryos as legal persons, fertility clinics will be forced to change how they manage embryos, including current standard practices such as pre-implantation genetic testing, storage of unused embryos, and the disposal of those deemed unlikely to have reproductive potential.

Legal Challenges

The legal status of frozen embryos is particularly contentious. For example, in the US state of Louisiana, a statute defines any embryo outside of the body as "a juridical person" whose destruction is forbidden. This has raised concerns about the liability of fertility clinics in the event of accidental destruction of frozen embryos, with potential lawsuits brought under the doctrine of "wrongful death".

Impact on Patients

Fetal personhood laws could limit patients' options for managing their frozen embryos, such as by restricting their ability to discard or donate them. This could force women to undergo multiple egg retrieval procedures, increasing the physical risks and costs associated with IVF.

Impact on Providers

Fertility specialists may find themselves in a conflict between their ethical obligations to provide the best care for their patients and the legal requirements imposed by fetal personhood laws. This could lead to a breakdown in trust between providers and patients, with patients' interests potentially subjugated by the state.

Uncertainty and Confusion

The legal landscape surrounding fetal personhood is complex and evolving, with varying interpretations and applications of the laws across different states. This creates uncertainty and confusion for both patients and providers, who may be unsure of their legal rights and obligations.

In conclusion, fetal personhood laws have significant implications for infertility treatments, particularly those involving IVF and ART. The vulnerability of these treatments to legal challenges underscores the contentious nature of fetal personhood and the need for clear and consistent legal frameworks to protect the rights and well-being of all involved parties.

Contraception access is threatened

Fetal personhood laws, which grant fetuses the same legal rights as born people, threaten to disrupt access to contraception.

Fetal personhood laws could impact the use of emergency contraception, such as IUDs and Plan B, which can prevent the implantation of a fertilized egg. Some members of the anti-abortion movement argue that these forms of contraception violate personhood. This could lead to restrictions on access to these methods of contraception or even their criminalization.

In addition, fetal personhood laws could also impact in vitro fertilization (IVF) procedures, which can create multiple embryos that can be frozen indefinitely. If a fetus is granted legal personhood, it could disrupt the use of IVF and potentially lead to legal challenges.

The implications of fetal personhood laws on contraception access are serious and far-reaching. These laws have the potential to limit individuals' ability to make their own reproductive choices and could have a disproportionate impact on marginalized communities, including people of color, immigrants, people with disabilities, and low-income individuals.

The threat to contraception access under fetal personhood laws underscores the broader battle over reproductive rights and the potential for these laws to regulate and criminalize the actions of pregnant individuals.

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