Fetal personhood could challenge the meaning of equality

Antiabortion advocates seek constitutional rights for fetuses. That would open up new practical questions — can the unborn own property? — and require courts to accept an alternative vision of what constitutes equal protection under the law.

A woman with a child protested in favor of banning all abortions at a rally in Cartersville, Ga., on July 23.James Swift/Associated Press

For years, the antiabortion movement had Roe v. Wade in its crosshairs — so it seemed that the reversal of Roe would be the ultimate victory for Americans who oppose abortion. But when the Supreme Court reversed Roe v. Wade in June, antiabortion groups were far from done. And a law that went into effect in Georgia a few weeks ago gives us a preview of what antiabortion leaders hope is next nationwide: the recognition of fetal personhood.

If a fetus is a person, then every constitutional right and legal protection theoretically applies in the womb. At a minimum, that means abortion itself is unconstitutional. It also could upend the meaning of equality under the law.

Georgia’s new law, which bans abortion roughly two weeks after a woman could realize she is pregnant, amends the definition of “natural person” to mean “any human being, including an unborn child.” Georgia has also spelled out some of the consequences of this definition of personhood: The state has established that fetuses count as persons for census purposes and qualify as dependents on tax returns. Other implications of this principle remain uncertain. Will fetuses be able to have lawsuits brought on their behalf? Will they be able to own or inherit property? If fetal personhood is a constitutional principle, will states even have the authority to allow abortions in cases of rape or incest?

Georgia’s law may be the first personhood measure to go into effect, but other states are likely to follow.

This should come as no surprise. The antiabortion movement has not been fighting since the 1960s merely to allow each state to set its own policy on abortion. Instead, the movement has always argued that abortion is a violation of the fetus’s rights to equality under the law. Even after Roe v. Wade legalized abortion throughout the United States in 1973, antiabortion leaders still spent a decade fighting for a constitutional fetal-personhood amendment. That goal of recognition for fetal personhood never faded away, even if the movement had to give up on the amendment.

Now that Roe is gone, the push for a national ban on abortion has started again. The movement is preparing legislation banning abortion if Republicans regain control of Congress and the White House in 2024. Antiabortion lawyers have also developed a plan to persuade the conservative Supreme Court to recognize fetal personhood and declare abortion unconstitutional.

What happens if one of these efforts succeeds? When we imagine a future in which fetal personhood is the law, we often think of its practical consequences: Will pregnant women be able to drive in high-occupancy-vehicle lanes, which a Texas woman recently asserted she should be allowed to do? Would someone who drank wine during pregnancy be guilty of child abuse or assault?

These practical consequences matter, but the potential ascendancy of the personhood movement could also profoundly change the way the law defines constitutional equality.

From the beginning, the antiabortion movement argued that the word “person” in the Constitution applied before as well as after birth — and that fetuses resembled other groups that qualify under the Constitution for protection against discrimination, such as women and people of color.

When confronted with claims about whether any given community should be treated as a protected class, courts have looked at whether that community has experienced a long history of subordination, whether that community is politically powerless, and whether people in that community possess an immutable trait. Antiabortion leaders would have to upend this framework to get fetuses treated as a protected class. After all, there is nothing immutable about gestational age. Antiabortion leaders also acknowledge that discrimination against fetuses is not the historical norm: In their telling, there has been almost universal condemnation of abortion in the past. In effect, the antiabortion movement argues that what matters is not past discrimination or even the effects of contemporary discrimination. What matters, in the movement’s view, is the fact that a fetus is vulnerable and depends physically on someone else to survive.

If this alternative vision of equality becomes part of our law, would this solicitude for life end at birth, or would people with illnesses or disabilities be accorded more protection than the law currently provides? What about young children and the elderly?

And if this is what equality means, what does it augur for women or people of color? If the past doesn’t matter for this calculation — if the legacy of past discrimination doesn’t count — then there is less reason to worry about or even notice sexual harassment or racial injustice in the present.

The establishment of fetal personhood would also force conservative lawmakers to decide how to enforce fetal rights — and who would be punished for violating those rights. At least for the moment, most states do not allow for the criminal punishment of women for abortion (Georgia’s law is unclear on this point). Nonetheless, women have faced criminal consequences for their behavior during pregnancy. For example, even when Roe was on the books, some women were forced to have C-sections to maximize the chances that their child would be born alive or faced criminal prosecution for drug and alcohol use during pregnancy by prosecutors who invoked the idea of fetal personhood.

Is there a future in which a personhood movement pays equal attention to measures that would dignify fetal life by helping people who are pregnant? To date, most personhood strategies focus on telling women what they cannot do rather than supporting them. Would personhood ever require financial support for fetuses from other people, such as biological fathers, or from the government?

There are more questions than answers when it comes to the future of personhood. But one thing is clear: If the personhood movement has anything to say about it, the meaning of equality in America will never be the same.

Mary Ziegler, a professor of law at the University of California, Davis, is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”