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The next big battle in America's abortion fight will be over fetal personhood

These hypocritical laws could have far-reaching implications, even in states that already restrict abortion. And the misogyny that drives this quest has an insatiable appetite.
Abortion rights demonstrators protest during the Women's Wave March
Abortion rights demonstrators protest during the Women's Wave March in Houston, on Oct. 8.Mark Felix / AFP via Getty Images file

Five days after the Supreme Court overturned Roe v. Wade, a pregnant Texas woman, Brandy Bottone, protested a ticket she’d been issued for driving alone in a carpool lane. Bottone argued that under the Supreme Court’s recent logic that overturned the constitutional right to abortion, her unborn fetus counted as a person and thus satisfied the high-occupancy vehicle lane requirements. Her ticket was later dismissed.

These anti-abortion zealots argue that “personhood” begins at conception, and that America should codify constitutional protections for fertilized eggs, embryos and fetuses.

Bottone’s protest highlighted the hypocrisy of fetal personhood logic that gives fetuses rights in cases of abortion but not in other contexts. Those of us who support access to safe, legal abortion care found Bottone's point well-founded — only because we believe that the fetus should have superior rights in neither instance. But her point, taken to its logical conclusion by people of a different belief, could also play into the hands of those who argue a fetus should be granted the same full rights under the law that any other born person would receive. These anti-abortion zealots argue that “personhood” begins at conception, and that America should codify constitutional protections for fertilized eggs, embryos and fetuses.

Recently, the U.S. Supreme Court declined to hear a case that would have provided clarity on this issue after a Catholic group and two pregnant women from Rhode Island sought to sue the state on behalf of their unborn fetuses. “This court,” the women argued, “should grant the writ to finally determine whether prenatal life, at any gestational age, enjoys constitutional protection — considering the full and comprehensive history and tradition of our Constitution and law supporting personhood for unborn human beings.” The ultimate goal? To end abortion in all instances, with no exceptions for rape, incest, fatal fetal abnormalities, or the life of the mother.

To learn more about Wendy Davis' historic fight for abortion rights, watch “Shouting Down Midnight” on Sunday, Oct. 23, at 10 p.m. ET on MSNBC.

Currently, Alabama, Arizona, Georgia and Missouri all have personhood laws in various forms. Kansas had one as well, but voters there overwhelmingly voted to preserve abortion rights in their state in August. Other states, like my home of Texas, will almost certainly be considering passage of personhood legislation (again) in their upcoming legislative sessions. 

These laws could have far-reaching implications, even though they are being suggested in states that already restrict abortion.

Then-Sen. Wendy Davis speaks during her 13-hour filibuster of an abortion bill
Wendy Davis, a Texas state senator at the time, speaks during her 13-hour filibuster of an abortion bill in Austin, Texas, in 2013.Eric Gay / AP file

Take for example, a recent case filed in Kentucky by a group of Jewish women arguing that the laws there banning most abortions violate their religious beliefs. These were not women who were pregnant and wanted to receive abortion care. Instead, these were women who wanted to give birth. All three of the plaintiffs require in vitro fertilization treatments to have children, but they worry about the possible legal and physical consequences if complications arise. Taking a page from the playbook of anti-abortion Christian groups that have successfully fused their religious beliefs with lawmaking, the Kentucky plaintiffs argue that “Judaism has never defined life beginning at conception,” and pointed out that a “millennia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.” The Kentucky law, they assert, violates their ability to practice their faith free from government intrusion. Similar suits have been filed in Indiana and Florida.

According to the Centers for Disease Control and Prevention, approximately 2 in 100 births in the U.S are the result of in vitro fertilization; the medical innovation has helped tens of thousands of Americans conceive. In most instances of IVF treatment, embryos resulting from the fertilization process are frozen and not used immediately, if ever. Many proponents of IVF believe that this medical procedure would be threatened if the fertilized eggs and the embryos that result from them were granted the same rights as a person. As the organization ARC Fertility argues, “anything that puts an embryo at risk could be a criminal violation, even if its goal is the undeniable social good of helping someone to have a baby.”

Already, states with strict anti-abortion laws have created criminal penalties for doctors or others who help a pregnant person obtain an abortion. In Texas, that penalty can mean up to life in prison. If “personhood” is the operative legal term, advocates worry that doctors, pregnant women who abort or miscarry and even those who help to provide access to abortion care across state lines could potentially be charged with murder. 

And what about the disposal of embryos after a couple or individual determines they no longer wish to conceive? What might the penalties be if a pregnant person consumes alcohol or uses drugs while pregnant? Or if a pregnant person smokes? Or fails to follow proper nutritional guidelines? Or fails to follow bed rest orders in the case of a precarious pregnancy?

Georgia’s law already says that a woman can seek child support during pregnancy, allows the unborn child to be claimed as a dependent on state income taxes and provides that the unborn child can be counted in the state’s census population numbers. If consistency is our guide, as Brandy Bottone reasoned, is it really a stretch to believe that IVF would be next? 

If there is anything I have learned as a policymaker and advocate for abortion rights, it’s that the abortion debate has always been as much if not more about controlling women as it has been about an interest in protecting life. And the misogyny that drives this quest has an insatiable appetite. The next countrywide chapter in this debate is almost certainly going to be around personhood. And if we don’t fight back this November by defeating the anti-abortion lawmakers who successfully fought to overturn Roe, we’ll have only ourselves to blame.