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Personhood laws are laws designed to extend the legal concept of "personhood" to pre-born humans. Specifically, these laws give legal status as a person to any fertilized human egg, from conception until birth. This includes the zygote before it has implanted, and according to medical science, implantation is the beginning of a pregnancy. This conflicts with the traditional legal position that the unborn child is part of the mother, and its interests are the same as the mother's. These laws constitute one of the newest trends of attack in a long list of ways to make life really hard for American women who actually want to participate in their world by controlling their own reproduction. The attempt to pass such laws is largely restricted to the United States, though Ireland formally maintained a fetus' "right to life equal to that of the mother" until 2018.
Legal concepts of Personhood and Roe v. Wade
Roe v. Wade is primarily founded upon a doctrine of privacy between a woman and her doctor, a relationship the state has no right to intrude upon[note 1]. It also addressed the Court's need to balance a mother's rights to make private medical decisions with the state's right to protect the living child in utero. The balance was placed strongly in favor of a woman throughout the first 5-6 months of pregnancy, at which point the State's right to protect the child enters. Specific notation in the majority opinion was the rejection of an "inherent right-to-life" for a fetus. The court ruled that a fetus was not a person in the terms of the Fourteenth Amendment, and hence had no right to life.
Personhood amendments seek to change that, by directly legislating a fetal "right-to-life", pushing that tenuous balance between privacy and the State's interest in protecting the life of a child far to the side of the growing fetus. Since the argument was privacy vs. potential, non-specified rights, legislating specific legal rights onto a fetus means privacy has no compelling grounds. Roe v. Wade would be circumvented by cutting at its core: it is not about a woman's rights, but the child's. And clearly, killing a child takes away its single most fundamental right to life.
However, despite the intention of the laws, the concept of personhood is a fuzzy one not defined in the Constitution and varying according to interpretation of individual laws: by comparison, corporate personhood does not confer the same rights as being a natural person, and fetal personhood may not convey full constitutional rights. Hence it's not clear that fetal personhood would even prohibit abortion. After all, corporate personhood doesn't prohibit winding up corporations.
Ramifications of fetal personhood
Personhood laws are thinly veiled attempts to circumvent Roe v. Wade, by making the fetal life as important (or in some ways, more important) than the wishes, health, or in some cases life of the woman who is carrying the fetus.
The single most important goal for any personhood law is to restrict, if not make totally illegal, the right to access abortions. If the zygote is a legal person, then Roe v. Wade was found on false grounds and no longer applies. Also, the idea of "viability" as a test no longer applies. A zygote or fetus must therefore be protected from being killed, just like any other person is.
Following that, most forms of hormonal birth control can potentially be attacked. Birth control works in two ways. First, it regulates the body so an egg is normally not released. No egg, no baby. However, sometimes an egg is released, but the hormones make the uterus a hostile environment for the zygote, causing it to pass out of the body with the woman's next cycle. If you assume a "person" begins at conception, birth control would necessarily be harmful to that person. Murder, if you will. The Virgina and Oklahoma State Legislators, which are pushing personhood bills, were asked by those in opposition to put a basic rider protecting a woman's right to access hormonal birth control. In both cases, they gave a resounding "no", despite claims that they are not trying to make birth control illegal.
Another serious issue that is being brought up by ob-gyns in the states trying to pass personhood laws is the effect this will have on risky pregnancies, specifically ectopic pregnancy, because there are not sufficient legal markers/legal language to define a pregnancy as a "healthy one", nor define the rights of the fetus if it cannot survive.
Modern fertility treatments, specifically "in vitro" treatments, would also become problematic. Currently, when a couple uses in vitro they will have several eggs harvested and fertilized at one time, "just in case" (usually between 5-10, with an implant of 2-4 of them), because harvesting the eggs from the mother is a very invasive procedure. The potential problem here is that this practice creates thousands of zygotes, frozen in labs. Disposal of the fertilized egg can already be an ethical issue for the lab or parents, but this law would increase the complications. Potentially, all fertilized eggs must have a chance at life, so the couple would either have to only fertilize one egg at a time, or have twins, triplets and novemtuplets.
Less likely, but still possible, ramifications can include drastic laws against smoking, drinking or drug use while pregnant. While most women who want to be pregnant limit or remove those from their lives during pregnancy, some women do not, and some women cannot. Especially if they do not want the child in the first place. Though likely a violation of their civil rights, women are already charged for child abuse if they use while pregnant; personhood laws only make that situation worse. One can imagine a woman addicted to drugs who is living on the streets. She cannot have an abortion, but any child she has will face serious health problems if it survives to term. And our answer will be to put her in jail.
Any miscarriage can potentially be considered manslaughter or a murder, depending on what the woman did or did not do during her pregnancy.
Funny, in a sad kinda way
These are side effects of this law that are unlikely, but slightly amusing to think about in a sad, "what the hell is wrong with this picture" sort of way. The word or concept of a "person" occurs frequently throughout the statute books of most states - 25,000 times in the laws of Virginia - and every one of these laws would have to be reinterpreted to apply to fetuses, or else be amended or repealed. Hence, we might see:
- Mandatory checks to ensure a woman is not pregnant before she enters a bar, flies across country, deep sea dives or performs other activities that slightly increase her risk to miscarry.
- Limits to a woman's right to use aspirin, which is known to increase the risk of miscarriage or lack of implantation in at-risk women. Got a headache? Too bad—you might be pregnant.
- Limiting a woman's access to medical care. Things like synthetic thyroid, heart medication, acne drugs, and insulin can all have serious effects on a fetus and cause miscarriage. It is after all, a person.
- Women can take out life insurance every single month, and collect the fees when, as usual, the zygote doesn't implant though no fault of their own.
- The division that produces identical twins occurs after fertilization - hence the term monozygotic. This would result in generating two "full persons" from just one. So, which is the original? Or has the original been killed and replaced by two new ones? Is there any legal precedent that would solve this absolute mess?
- Speaking of twins, what happens if one is absorbed by the other? Has the surviving one committed murder, or merely an extreme case of identity theft?
- Pregnant women would be carrying full persons, so would be allowed in the carpool lane.
- On the bright side, a fertilized zygote will always be accompanied by an adult should it be accidentally taken to an R-Rated movie.
- The fetus can sue his siblings for a part of the estate.
- Women will save blood from each period for official examination by authorities to determine whether or not it was an early miscarriage.
- If authorities determine a period is a miscarriage, authorities will conduct an investigation to determine the cause [see above].
- If an early miscarriage was caused by the actions of the mother, authorities will determine whether it was accidental or premeditated and charge the mother with manslaughter or homicide as the case may be.
- Women/couples with a history of miscarriage might be banned from attempting to reproduce at all, since the risk of the loss of a human life would be so great. In fact, since 31% of pregnancies are lost before 20 weeks gestation, all attempts at reproduction might be considered reckless endangerment since they clearly "[create] a substantial risk of death or serious physical injury to another person".
- Fathers would have visitation rights with fetuses.
- A woman could put her fetus into foster care.
Personhood USA, a Colorado-based group, is the primary driver of the personhood movement around the county. They seek "to ban abortion, embryonic stem cell research, and human cloning", by defining a "person" with all the legal rights therein, "from the moment of conception". While they accept and admit that most methods of hormonal birth control, IUDs, and the "Morning after pill" actually cause a zygote to not implant in the uterus, Personhood USA insists that an attack on birth control is not their goal, though they have refused to put language in their amendments that would protect a woman's right to obtain and use any currently legal form of birth control.
Personhood USA has carefully selected its legal team to ensure that the language of each bill improves both in its chance of passage, and exactly what it will cover and if it will or will not pass constitutional challenges. Personhood USA has been the source for the at-large (and failed) amendments in Colorado, Mississippi, and ongoing in California, Nevada, Florida and Ohio. They are also assumed (though not credited) to be the authors of the Oklahoma and Virgina bills that are being presented to the State legislature instead of the electorate.
History of the laws
The first attempt to give zygotes any legal status was made in Colorado during the 2008 elections. It failed overwhelmingly, 34 to 65. The same proponents tried again in 2010 and failed by a margin of 29 to 70 in 2010 A third attempt in 2012 failed to even garner enough signatures to appear on the ballot. Not to be defeated, Personhood Colorado managed to get a new bill onto the 2014 ballot. The new attempt avoided the word "personhood" by stating only "to protect women and unborn children", and presented the bill as a way for law enforcement to charge someone who causes a pregnant woman to lose her child as a homicide. This, despite an existing law that already allows the exact same thing, minus the language giving personhood to fetuses. The 2014 attempt also failed, and by a margin of 35 to 65.
Personhood Iowa attempted to place a bill on the 2011 ballot, however, it was removed for technical reasons and never went to popular vote.
One of the most surprising losses was in Mississippi, in the 2011 Elections. It was voted down, in one of the most conservative states, by a margin of 42 to 58.
State Legislature attempts
Seeing that attempts to pass these laws by popular vote went down in flames even in extremely conservative states, in 2012, the Religious Right, unwilling to be hindered by the "will of the voters" that conservatives scream so often about, they turned to the state legislature to do what voters consistently and overwhelmingly would not do.
- Virginia - On February 15, 2012, Virginia's House passed the first personhood law in the United States. After receiving quite a backlash on this and an ultrasound law, the Senate tabled the personhood law until 2013, a more politically advantageous time.
- Oklahoma - On February 16, the Oklahoma state senate passed a fetal personhood law.
Text of the bills
These are external links to the language of each of the bills described above:
- Full text can be found at Text of the Oklahoma Personhood Bill.
- Full text can be found at Text of the Virginia Personhood Bill.
- Be it Enacted by the People of the State of Colorado: SECTION 1. Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read: Section 31. Person defined. As used in sections 3, 6, and 25 of article II of the state constitution, the terms "person" or "persons" shall include any human being from the moment of fertilization.
- Section 32. Person defined. As used in sections 3, 6, and 25 of Article II of the state constitution, the term "person" shall apply to every human being from the beginning of the biological development of that human being.
- Nevada Personhood Amendment (2014)
- The People of the State of Nevada do enact as follows: RESOLVED, That a new section designated Section 23 to be added to Article 1 of the Constitution of the State of Nevada to read as follows: "In the great state of Nevada, the term 'person' applies to every human being."
- Missouri Personhood Amendment (2010) - (did not appear on ballot after court challenge)
- Shall the Missouri Constitution be amended to define the term “person” to be from the beginning of biological development and grant such person constitutional rights and access to courts under the equal protection, due process, and open courts provisions of the Missouri Constitution?
2012 Republican Presidential run
The windup to the 2012 US Presidential run demonstrated an unprecedented attack on women's rights, including statements made by the Republican Vice-Presidential candidate, Paul Ryan, saying that it was his specific intent to pass a Constitutional Amendment for Personhood. The RNC added such language to their official platform. The fact that one of the most conservative states in the Union could not pass such a law didn't seem to faze the RNC from doing what they claim is the will of the people.
- Except, of course, where they are sanctioning rape, via ultrasound devices, but that's a different article
- Johnsen, Dawn E., "The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection" (1986). Articles by Maurer Faculty. Paper 905.
- Eighth Amendment of the Constitution Act, 1983, Constitution of Ireland
- Writings of Justice Ginsburg
- "Myth of Fetal Personhood: Reconciling Roe and Fetal Homicide Laws", Juliana Vines Crist, 60 Case Western Reserve Law Review 851 (2010)
- Mississippi doctors call personhood dangerous
- No IVF Treatments, Fetuses in Foster Care: The Unintended Consequences of Virginia's Personhood Law, DCIST, Feb 17, 2012
- Virginia "personhood" bill stalls in Senate (archived)