The 50th anniversary of the 1973
Supreme Court
decision in
Roe v. Wade
that made abortion widely accessible will mark the first year since it was overturned last summer, a move that set the new legal goalpost for anti-abortion advocates on the concept of fetal personhood.
Fetal personhood refers to the idea that a fetus should be legally and constitutionally recognized as a person from the moment of conception in addition to granting fetuses the same rights and protections as those born, including the right to life.
“Consideration of what rights a fetus might have as a person is where the new battle over abortion is headed,” Hamline University professor David Schultz, who specializes in legal studies and political science,
wrote
in a recent op-ed.
The anti-abortion movement has spent decades trying to enhance the rights of the unborn, finding victories with the 1992 decision in Planned Parenthood v. Casey, which narrowed the scope of Roe, and the landmark 2022 decision in
Dobbs v. Jackson Women’s Health Organization
that overturned the 49-year precedent set by Roe. But as long as states continue to permit abortions with few limits or allow procedures in the third trimester, the movement persists to expand legal protections for the unborn.
ANTI-ABORTION GROUPS LOOK TO STATES AND LAWSUITS TO RESTRICT ACCESS TO ABORTION PILLS
In September, just months after Justice
Samuel Alito
‘s 6-3 opinion in
Dobbs
that allowed states to create laws severely limiting or restricting abortion procedures, the justices were faced with the decision to take or dismiss a separate case from a Rhode Island-based Catholic organization that argued the high court has yet to “clarify whether an unborn human being has standing to access the courts.” The justices ultimately declined to take up the case, but the petition itself signaled a strong message about the next front line in the anti-abortion movement.
In a statement to the Washington Examiner, Schultz compared the decadeslong gap between Roe and Dobbs to the 58 years between Plessy v. Ferguson and Brown v. Board of Education, opposite cases in which the Supreme Court first upheld and then ended racial segregation laws.
“We’ve only got 50 years between Roe and Dobbs,” Schultz said. Combined with the conservative supermajority of justices installed by former President Donald Trump and “another 10 years, it’s not impossible to reach a conclusion by this court that a fetus is a person.”
Gearing up for the 50th annual March for Life event in Washington, D.C., religious leaders are sending their clearest message yet about the next fight for the anti-abortion movement. Whether it’s by electing officials to formulate fetal personhood laws or through a future Supreme Court opinion, anti-abortion activists say overturning Roe is just the beginning.
“A fetus is either worthless and discardable or a unique human life worthy of joyful celebration. It can’t be both,” Tyler Rowley, president of Servants of Christ for Life, told the Washington Examiner. “In the same way, fetal homicide is either a horrendous crime or it’s no worse than what abortionists do every day.”
Servants of Christ for Life asked the high court last year to hear its challenge to a 2019 Rhode Island law, which codified the right to abortion in line with the Roe precedent.
In this
case
, known as
Jane Doe v. Daniel McKee
, two pregnant women sued on behalf of their fetuses, arguing the state abortion law stripped their unborn fetuses of their personhood by repealing older state laws that established human life begins at conception. The state Supreme Court ultimately found fetuses lacked proper legal standing to bring the lawsuit.
The attorney behind the Catholic organization’s legal brief, Diane Magee, went back more than 200 years to the writings of the high court’s fourth chief justice, John Marshall, to make her legal case for personhood.
In the 1818 case United States v. Palmer, Marshall analyzed the word “person” in a federal statute and “found it to be a word of inclusion, not one of limitation.” The words “‘any person or persons’ are broad enough to comprehend every human being,” Marshall wrote at the time.
Magee used Marshall’s words as the legal basis for her argument that the Rhode Island Supreme Court should have included “unborn plaintiffs” in the broad category of “any person” protected by the 14th Amendment.
Following the Roe opinion, U.S. lawmakers responded by attempting to establish fetal personhood to guarantee a right to life for the unborn, but when such legislation failed, the Republican Party shifted attention to state legislatures,
according
to ProPublica. By 2014, 38 states had similar “fetal homicide” statutes that add additional punishments if a pregnant mother’s fetus is harmed in an assault against her.
Earlier this month, Virginia Del. Nicholas Freitas (R) proposed a bill that would grant a fetus personhood to permit a pregnant driver to use the high occupancy vehicle lane.
The proposed legislation follows a similar instance in Texas, where a pregnant woman
successfully challenged
a ticket for driving in the HOV lane by herself.
States including Alabama, Arizona, Georgia, and Missouri have some type of
fetal personhood laws
. The Peach State’s law allows for certain rights, such as tax breaks and child support for the unborn.
In 2004, Congress passed the Unborn Victims of Violence Act, which recognizes a fetus as a legal victim in 60 listed federal violent crimes.
If Congress were to establish a law saying a fetus is a person or if the Supreme Court were to one day determine a fetus is a constitutional person under the 14th Amendment, then state laws permitting abortion would be invalidated, Schultz notes.
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But until then, it will take various test cases and legislative bills to build a “uniform rule” before the Supreme Court could adopt new precedent for fetal protections, he said.
“Once you get that in terms of the uniform rule, let’s say fetal personhood, then you can start building the precedents, bringing the test cases, you do more of the HOV lanes,” Schultz said. “You do more in terms of saying, ‘OK, how about eggs that have been artificially fertilized?’ … We can use all of these kinds of cases here to just keep building and building and building along the line.”
