Senate sees push for fetal personhood, testing bounds of post-Roe landscape
Warring views on abortion made their way into the Senate on Tuesday as the Judiciary Committee took up the legal consequences of the Supreme Court’s overturning of Roe v. Wade.
While Democrats laid out their efforts to protect abortion access for all Americans, Republicans made their case for having the law recognize fetuses in the womb with all the rights accorded by the 14th Amendment.
“Life is a human right,” Denise Harle, senior counsel and director of the Center for Life Alliance Defending Freedom, testified before the panel.
Seizing on a concept that Justice Samuel Alito explores in the Dobbs v. Jackson Women’s Health Organization lead opinion, Texas Republican Senator John Cornyn asked Harle when the unalienable right to life recognized in the Declaration of Independence begins.
“I do think that the American people understand that you have no rights if you don’t have the right to life,” Harle said. “That is a principle that our nation was founded upon, and every human being, from its earliest existence, has its own DNA and has a future — if we don’t extinguish it — has a future and that is a human right.”
Alito makes a point in Dobbs of abandoning Roe’s reference to “fetal life” in favor of “unborn human beings,” the language that appears in the Mississippi abortion ban newly endorsed by the court.
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being,’” Alito wrote.
This is new terrain.
“Alito’s opinion gave voice to the idea of fetal personhood in a way that we’ve never seen in the text of a Supreme Court opinion,” Katherine Franke, professor of law and director of the Center for Gender & Sexuality Law at Columbia University, said in a phone call. “There was reference to a fetus or to pregnancy in prior opinions, say written by Justice Blackmun or Kennedy, but we had never seen a fetus figure as a legal subject in the same way that that idea appeared in the Dobbs opinion.”
This is not to say the court now recognizes the constitutional rights of fetuses, but it does offer new encouragement to those who want states to give legal rights to fetuses.
“We are talking about procedures that culminate in and have as their sole intended purpose, the termination of a baby’s life,” Utah Republican Senator Mike Lee said. “These are babies.”
Arizona became the first battleground for this issue. Separate from a new ban on abortion in cases where the procedure is being considered because of a fetal diagnosis, lawmakers there have also proposed in the wake of Dobbs giving fetuses, embryos and fertilized eggs a personhood requirement that would endow them with all the rights as human beings under Arizona law. A federal judge blocked the personhood law on Monday.
Legal experts say personhood status for fetuses could allow states to criminalize the use of certain substances while pregnant, a hypothetical scenario whose implications grow sinister for people with underlying health conditions.
“For instance, a fetus in a jurisdiction that has a fetal personhood statute, one could imagine a state prosecutor or medical board saying, actually, the cancer treatment has to stop because the interests of the fetus are elevated over the interests of the pregnant person,” Franke said.
As fetal personhood statutes now come before courts, there is nothing in Supreme Court jurisprudence protecting parental life.
“It’s almost a ‘Handmaid’s Tale’ situation that one could imagine that Dobbs actually makes possible,” Franke said, “and the question is, I think less of a legal one than a political one, of how far will the public allow elected officials to go.”
Democrats on the committee looked to Illinois Lieutenant Governor Juliana Stratton on Tuesday to note some of the disparities that abortion bans create.
“A post-Roe America will be devastating for Black women whose maternal mortality rate is already two to three times higher than that of white women because of structural racism and misogyny,” Stratton said. “One study projects that without safe and legal access to abortions, that number will increase by over 30% among Black women and nearly 20% for Hispanic women.
“We are facing a future rife with needless death,” Stratton added, quoting surveys that show 61% of Americans believe abortion should be legal in most or all cases.
Senator Cory Booker quoted the data on states that have increased access to contraceptives.
“In the dissent of the Dobbs case, they pointed out what to me was absurd,” the New Jersey Democrat said. “The reality that many of the states moving to create the most restrictive bans on abortion are the very states that aren’t doing the things that are obvious to lower the rates of maternal death, like expanding Medicaid. So this argument that they value life by not providing access to contraception, by not expanding Medicaid — their states have some of the worst records for women dying in pregnancy-related causes. It seems like rank hypocrisy to me.”
Khiara Bridges, a professor of law from the University of California Berkeley School of Law, told the committee that while some senators said the Dobbs decision gives voters more power over this issue, the states with restrictive abortion laws are also preventing people from voting through gerrymandering.
“Senator Lee, Senator Cruz have talked about, oh, this Dobbs decision just returns it to the elected representatives of states, and people can battle it out in these laboratories of democracy as to whether they want to protect fetal life over the interests of the pregnant person,” Bridges said.
“These are the same states that are stopping people from voting. Texas has the most restrictive voting laws on the books. Texas SB 8 doesn’t represent the will of the majority of Texas. Texas SB 8 represents the will of the majority of Texans that were able to vote. So in order for this to be a democracy, we have to protect voting rights.”