Follow this authorRuth Marcus's opinions
Follow
But this overstates the risk from the Supreme Court, in my assessment. Justice Brett M. Kavanaugh, in a concurring opinion, took pains to make clear that the court was not adopting a theory of fetal personhood. “No Justice of this Court has ever advanced that position,” Kavanaugh observed. “The Constitution neither outlaws abortion nor legalizes abortion.” As a practical matter, this court seems unlikely to endorse the notion that embryos are people.
Advertisement
That doesn’t counsel complacency. Even without the court declaring fetal personhood, its advocates argue, Congress has independent power under the 14th Amendment to enforce its provisions by “appropriate legislation.” In the House, the Life at Conception Act — endorsed by 124 co-sponsors, including Speaker Mike Johnson (R-La.) — would establish “equal protection for the right to life of each born and preborn human person.” It defines “human person” to cover “all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”
George, the fetal personhood advocate, made the case for such legislation in a January speech at the Capitol Visitor Center in D.C. “The national government constitutionally may, and is in truth constitutionally obligated to, in the face of the failure of states to do their constitutional duty, protect unborn babies against elective abortions,” he argued. That’s right, constitutionally obligated. Forget all that nonsense from the Dobbs majority about leaving things up to the states.
Let’s pause for a moment to ponder the question of personhood. Although the fetal personhood movement arose mostly out of Christian theology and beliefs about ensoulment, today George and others who contend for fetal personhood make an argument they present as grounded in irrefutable science: that from the moment of fertilization, when sperm meets egg, the resulting organism is a genetically distinct entity entitled to legal and moral respect.
Advertisement
“A human embryo is not something different in kind from a human being, like a rock, or a potato, or a rhinoceros,” George has written. “A human embryo is a human individual in the earliest stage of his or her natural development. Unless severely damaged or deprived of a suitable environment, an embryonic human being will, by directing his or her own integral organic functioning, develop himself or herself to each new stage of developmental maturity along the gapless continuum of a human life.”
This has a certain intellectually consistent clarity compared with the unscientific and arbitrary line-drawing by abortion rights opponents who point to stages such as the detection of a fetal heartbeat or, later in pregnancy, the asserted capacity to feel pain. You can criticize it for being too black and white, but it is at least a comprehensible distinction — in a sense, the antiabortion equivalent of the Roe court’s (to me) sensible determination that fetal viability marks the point at which the state is permitted to protect the fetus.
Where the personhood argument falls short is that it declares the genetic moment to be dispositive on the question of when life begins, ignoring the gradual process that unfolds from that union to a point where humanity cannot be denied. Among women who know they are pregnant, up to 25 percent of those pregnancies end in miscarriages, according to the National Library of Medicine. Are those events, however tragic, akin to the stillbirth of a viable fetus or the death of a baby or child? We may regret, even grieve, that an in vitro embryo fails to develop, but most of us do not experience it as a death.
And however much antiabortion advocates insist that their view is rooted in science, they also tend to be guided by a religious philosophy with which other Americans simply disagree. Outside of Christianity, many religions (like Judaism, for instance) recognize the gradual conferral of personhood on a fetus. At bottom, the personhood debate is a matter of contested moral and theological convictions, which is why these intimate decisions, about abortion and fertility, should be left to individuals, not the state.
As Harvard University philosopher Michael Sandel argued during the early 2000s debate over funding embryonic stem cell research, “The fact that every person began life as an embryo does not prove that embryos are persons. Consider an analogy: although every oak tree was once an acorn, it does not follow that acorns are oak trees, or that I should treat the loss of an acorn eaten by a squirrel in my front yard as the same kind of loss as the death of an oak tree felled by a storm. Despite their developmental continuity, acorns and oak trees are different kinds of things. So are human embryos and human beings. Sentient creatures make claims on us that nonsentient ones do not; beings capable of experience and consciousness make higher claims still. Human life develops by degrees.”
Advertisement
People can, and do, differ on this. And that’s the point. Scientific certainty is a false refuge in this instance. On the other side of the equation is the fact of an undeniable human being — the woman — whose participation is required, at least until science produces an artificial womb, to bring the embryo to life.
To say that the woman where the embryo resides — or, in the case of IVF, the woman whose egg was used to create the embryo — has rights only equal to the embryo itself raises thorny legal and moral questions. Recall George’s words: “Unless … deprived of a suitable environment, an embryonic human being will … develop himself or herself.” Deprived of a suitable environment? Under this view, could fetal personhood mean women’s bodies would be commandeered to provide the “suitable environment” to grow these embryos? (George disclaims that view, but it’s not hard to imagine an argument that if you are responsible for creating a person, you have a duty to host it.)
Short of that extreme, if an artificial womb were invented, would the embryos’ parents be responsible for raising them? Would fertility specialists be barred from creating more embryos than they are able to implant, prohibited from discarding embryos with genetic anomalies or required to keep excess embryos in perpetuity? There are an estimated 1.5 million frozen embryos in the United States. What happens to them in a regime that recognizes fetal personhood, broadly defined? Could “abandoned embryos” be taken for incubation and adoption by other families, a possibility that is already generating discussion among Christians concerned about the “new orphan crisis”?
Advertisement
And what happens with contraceptive methods, such as intrauterine devices and the morning-after pill, that some abortion opponents believe operate as abortifacients, preventing a fertilized egg from implanting in the uterus? Will fetal personhood prevent women from using those technologies?
If the Life at Conception Act were to become law, it wouldn’t just ban abortion nationwide — it would prohibit IVF (which is overwhelmingly popular, even among Republicans) as currently practiced. That’s a big “if,” though; the chances of this measure passing getting through both houses of Congress were slim even before the furor over the Alabama ruling.
So the greatest real-world risk, as the Alabama case has demonstrated, might be what happens in the states, through both state legislatures and state courts. According to Pregnancy Justice, at least 10 states define “personhood” as applying to every stage of development, including embryos; more say personhood applies to the fetus in the womb. The Guttmacher Institute identifies 25 states, overlapping the first group, in which “personhood” measures that would ban abortion have been introduced this legislative session.
Advertisement
Here is where, no kidding, we should be thankful for the Alabama Supreme Court. Its overreading of the state’s Wrongful Death of a Minor Act exposed the risks inherent in the push for fetal personhood — and might have put the brakes on this development. In Florida, for example, in the aftermath of the Alabama ruling, legislators paused work on a measure that would have extended wrongful death protections to fetuses.
Alabama itself scrambled to do legislative damage control that would allow IVF procedures to resume in the state — but dropped language contained in a draft bill that would have explicitly excluded frozen embryos from the definition of unborn life. Still, that wasn’t enough for the antiabortion Susan B. Anthony Pro-Life America and the Alabama Policy Institute, which denounced the measure for failing “to respect the dignity of human life.” They want Alabama to model its statute on a 1986 Louisiana law that prohibits viable embryos from being discarded. (The embryos are transferred for storage outside the state, raising the cost of the procedure in Louisiana.)
The political lesson of Alabama echoes the fallout from Dobbs. Strong majorities reject extremist positions. They don’t want women who are undergoing miscarriages to be forced to suffer sepsis before they can get medical help. They don’t want lawmakers or courts to interfere with a procedure that has helped millions of couples conceive. They believe that an abortion at six weeks is different from one at 20 weeks; they understand the moral and physiological difference between a microscopic clump of cells and a fetus kicking its mother in the womb. The more rigidly personhood advocates hew to their stance, and the more the public understands about the consequences of this position, the better for those who take a more nuanced view.
Share Comments
Popular opinions articles
HAND CURATED
- Opinion|The blank spaces in Relisha Rudd’s story are the most horrifyingMarch 4, 2024Opinion|The blank spaces in Relisha Rudd’s story are the most horrifyingMarch 4, 2024
- Opinion|The U.S. can’t afford to wait to fully embrace the world’s most effective weaponMarch 4, 2024Opinion|The U.S. can’t afford to wait to fully embrace the world’s most effective weaponMarch 4, 2024
- Opinion|I’m glad I had a gun. I’m even happier I didn’t use it on an intruder.March 4, 2024Opinion|I’m glad I had a gun. I’m even happier I didn’t use it on an intruder.March 4, 2024
View 3 more stories Sign up
Maybe we should thank the Alabama Supreme Court for its bizarre ruling that frozen embryos are children protected by state law. The decision, which seemed absurd to many people on its face, shone a needed spotlight on the concept of “fetal personhood.” It highlighted the danger that view poses not just to what remains of abortion rights in the United States but also to the modern technology that helps people build families. And — fingers crossed — the appalled reaction to the ruling might help thwart efforts to go even further than the Supreme Court already has in limiting reproductive freedom.
The campaign for “fetal personhood” began more than a half-century ago. In Roe v. Wade, the state of Texas, whose abortion ban was being challenged, argued that the fetus is entitled to protection under the 14th Amendment, which prohibits denying any “person” due process or equal protection of the law. The Supreme Court rejected that argument, but securing constitutional protection for “fetal personhood” became the preferred mechanism among abortion foes for undoing the newly declared right to abortion. Just eight days after Roe was decided in 1973, the first Human Life Amendment to the Constitution was introduced in Congress; it became a standard plank in the Republican Party platform.
Now, Roe is gone, but the campaign for fetal personhood has taken on a new role: to extend abortion prohibitions far beyond where they were left with the court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization. While some political factions that sought to roll back Roe seem content with the law reverting to a patchwork of state-granted rights, committed antiabortion advocates are seeking a nationwide ban, and they see claims of fetal personhood as one of the most straightforward and effective paths toward achieving that goal.
Notably, the Dobbs majority ignored a plea from the leading academic advocates of “fetal personhood” to go beyond overruling Roe and declare that the 14th Amendment protects fetal life. In a friend-of-the-court brief, professors John M. Finnis and Robert P. George argued that “unborn children are persons within the original public meaning” of the 14th Amendment, meaning that “state homicide laws would need to forbid elective abortion.” (Another amicus brief, filed on behalf of a former frozen embryo implanted in adoptive parents, went even further, arguing that abortion had to be banned because, with the advent of IVF, “viability outside the womb actually occurs at fertilization.”)
The five-justice majority opinion, by Justice Samuel A. Alito Jr., disclaimed “any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” Still, it repeatedly referred to situations involving an “unborn child.” Some abortion rights advocates have read this language as an invitation to develop fetal personhood arguments. “Now that the Pandora’s box of fetal personhood has been opened, and the Supreme Court has sown the seeds for a constitutional right to life for fetuses, it is time to reckon with the full ramifications of fetal legal personhood,” the group Pregnancy Justice warned.
But this overstates the risk from the Supreme Court, in my assessment. Justice Brett M. Kavanaugh, in a concurring opinion, took pains to make clear that the court was not adopting a theory of fetal personhood. “No Justice of this Court has ever advanced that position,” Kavanaugh observed. “The Constitution neither outlaws abortion nor legalizes abortion.” As a practical matter, this court seems unlikely to endorse the notion that embryos are people.
That doesn’t counsel complacency. Even without the court declaring fetal personhood, its advocates argue, Congress has independent power under the 14th Amendment to enforce its provisions by “appropriate legislation.” In the House, the Life at Conception Act — endorsed by 124 co-sponsors, including Speaker Mike Johnson (R-La.) — would establish “equal protection for the right to life of each born and preborn human person.” It defines “human person” to cover “all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”
George, the fetal personhood advocate, made the case for such legislation in a January speech at the Capitol Visitor Center in D.C. “The national government constitutionally may, and is in truth constitutionally obligated to, in the face of the failure of states to do their constitutional duty, protect unborn babies against elective abortions,” he argued. That’s right, constitutionally obligated. Forget all that nonsense from the Dobbs majority about leaving things up to the states.
Let’s pause for a moment to ponder the question of personhood. Although the fetal personhood movement arose mostly out of Christian theology and beliefs about ensoulment, today George and others who contend for fetal personhood make an argument they present as grounded in irrefutable science: that from the moment of fertilization, when sperm meets egg, the resulting organism is a genetically distinct entity entitled to legal and moral respect.
“A human embryo is not something different in kind from a human being, like a rock, or a potato, or a rhinoceros,” George has written. “A human embryo is a human individual in the earliest stage of his or her natural development. Unless severely damaged or deprived of a suitable environment, an embryonic human being will, by directing his or her own integral organic functioning, develop himself or herself to each new stage of developmental maturity along the gapless continuum of a human life.”
This has a certain intellectually consistent clarity compared with the unscientific and arbitrary line-drawing by abortion rights opponents who point to stages such as the detection of a fetal heartbeat or, later in pregnancy, the asserted capacity to feel pain. You can criticize it for being too black and white, but it is at least a comprehensible distinction — in a sense, the antiabortion equivalent of the Roe court’s (to me) sensible determination that fetal viability marks the point at which the state is permitted to protect the fetus.
Where the personhood argument falls short is that it declares the genetic moment to be dispositive on the question of when life begins, ignoring the gradual process that unfolds from that union to a point where humanity cannot be denied. Among women who know they are pregnant, up to 25 percent of those pregnancies end in miscarriages, according to the National Library of Medicine. Are those events, however tragic, akin to the stillbirth of a viable fetus or the death of a baby or child? We may regret, even grieve, that an in vitro embryo fails to develop, but most of us do not experience it as a death.
And however much antiabortion advocates insist that their view is rooted in science, they also tend to be guided by a religious philosophy with which other Americans simply disagree. Outside of Christianity, many religions (like Judaism, for instance) recognize the gradual conferral of personhood on a fetus. At bottom, the personhood debate is a matter of contested moral and theological convictions, which is why these intimate decisions, about abortion and fertility, should be left to individuals, not the state.
As Harvard University philosopher Michael Sandel argued during the early 2000s debate over funding embryonic stem cell research, “The fact that every person began life as an embryo does not prove that embryos are persons. Consider an analogy: although every oak tree was once an acorn, it does not follow that acorns are oak trees, or that I should treat the loss of an acorn eaten by a squirrel in my front yard as the same kind of loss as the death of an oak tree felled by a storm. Despite their developmental continuity, acorns and oak trees are different kinds of things. So are human embryos and human beings. Sentient creatures make claims on us that nonsentient ones do not; beings capable of experience and consciousness make higher claims still. Human life develops by degrees.”
People can, and do, differ on this. And that’s the point. Scientific certainty is a false refuge in this instance. On the other side of the equation is the fact of an undeniable human being — the woman — whose participation is required, at least until science produces an artificial womb, to bring the embryo to life.
To say that the woman where the embryo resides — or, in the case of IVF, the woman whose egg was used to create the embryo — has rights only equal to the embryo itself raises thorny legal and moral questions. Recall George’s words: “Unless … deprived of a suitable environment, an embryonic human being will … develop himself or herself.” Deprived of a suitable environment? Under this view, could fetal personhood mean women’s bodies would be commandeered to provide the “suitable environment” to grow these embryos? (George disclaims that view, but it’s not hard to imagine an argument that if you are responsible for creating a person, you have a duty to host it.)
Short of that extreme, if an artificial womb were invented, would the embryos’ parents be responsible for raising them? Would fertility specialists be barred from creating more embryos than they are able to implant, prohibited from discarding embryos with genetic anomalies or required to keep excess embryos in perpetuity? There are an estimated 1.5 million frozen embryos in the United States. What happens to them in a regime that recognizes fetal personhood, broadly defined? Could “abandoned embryos” be taken for incubation and adoption by other families, a possibility that is already generating discussion among Christians concerned about the “new orphan crisis”?
And what happens with contraceptive methods, such as intrauterine devices and the morning-after pill, that some abortion opponents believe operate as abortifacients, preventing a fertilized egg from implanting in the uterus? Will fetal personhood prevent women from using those technologies?
If the Life at Conception Act were to become law, it wouldn’t just ban abortion nationwide — it would prohibit IVF (which is overwhelmingly popular, even among Republicans) as currently practiced. That’s a big “if,” though; the chances of this measure passing getting through both houses of Congress were slim even before the furor over the Alabama ruling.
So the greatest real-world risk, as the Alabama case has demonstrated, might be what happens in the states, through both state legislatures and state courts. According to Pregnancy Justice, at least 10 states define “personhood” as applying to every stage of development, including embryos; more say personhood applies to the fetus in the womb. The Guttmacher Institute identifies 25 states, overlapping the first group, in which “personhood” measures that would ban abortion have been introduced this legislative session.
Here is where, no kidding, we should be thankful for the Alabama Supreme Court. Its overreading of the state’s Wrongful Death of a Minor Act exposed the risks inherent in the push for fetal personhood — and might have put the brakes on this development. In Florida, for example, in the aftermath of the Alabama ruling, legislators paused work on a measure that would have extended wrongful death protections to fetuses.
Alabama itself scrambled to do legislative damage control that would allow IVF procedures to resume in the state — but dropped language contained in a draft bill that would have explicitly excluded frozen embryos from the definition of unborn life. Still, that wasn’t enough for the antiabortion Susan B. Anthony Pro-Life America and the Alabama Policy Institute, which denounced the measure for failing “to respect the dignity of human life.” They want Alabama to model its statute on a 1986 Louisiana law that prohibits viable embryos from being discarded. (The embryos are transferred for storage outside the state, raising the cost of the procedure in Louisiana.)
The political lesson of Alabama echoes the fallout from Dobbs. Strong majorities reject extremist positions. They don’t want women who are undergoing miscarriages to be forced to suffer sepsis before they can get medical help. They don’t want lawmakers or courts to interfere with a procedure that has helped millions of couples conceive. They believe that an abortion at six weeks is different from one at 20 weeks; they understand the moral and physiological difference between a microscopic clump of cells and a fetus kicking its mother in the womb. The more rigidly personhood advocates hew to their stance, and the more the public understands about the consequences of this position, the better for those who take a more nuanced view.
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Rami G Khouri
Donald Low
Mort Laitner
Ali Fathollah-Nejad
Nikkei Editorial
Michael Kwet
visit website
