The Alabama Supreme Court ruled on Feb. 16 that an 1872 state law providing a cause of action for the “wrongful death of a minor” applied to, as the plaintiffs put it, “embryonic children” — embryos created through in vitro fertilization that have been cryogenically frozen. This extremist strategy of establishing fertilized eggs, embryos and fetuses as people with constitutional and statutory protections, as exposed by this decision, not only subverts the personhood of pregnant people and threatens to criminalize anyone with the capacity for pregnancy, it also poses deep threats to our democracy.
For those of us following the Alabama Supreme Court closely, this is, while deeply disturbing, not surprising. Ten years ago, this court ruled that the definition of a “child” included fetuses at any point in gestation in the context of child abuse laws, meaning a pregnant person could abuse their “child” even as an embryo, ushering in the unprecedented mass criminalization of pregnant people in the state: more than 600 such cases from 2006 through 2022, outpacing every state in the nation in criminalizing pregnant people.
Fetal personhood laws, and their proponents, have been lying in wait for this moment. After the U.S. Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health, the focus was on the abortion bans that went into near-immediate effect, triggered by the resulting fall of Roe v. Wade. But fetal personhood laws also serve as trigger laws of their own. Over a dozen states have fetal personhood laws or constitutional provisions, all passed before Dobbs, that have not been robustly understood or implemented. Many were passed as symbolic or “value” statements about “preserving the sanctity of unborn life,” professing that “life begins at conception” or attempting to redefine the words “human” and “person” to include “embryo” and “fetus.” In a world in which abortion was a fundamental right, fetal personhood laws could not be fully enforced. Now, without the backstop of Roe, fetal personhood laws and conservative courts’ interpretations and expansions of them can and are creating seriously destabilizing consequences far beyond what we saw before the Dobbs decision.
The concept of fetal personhood is not new. One of the first attempts at introducing a federal fetal personhood constitutional amendment happened just days after Roe v. Wade was decided in 1973. However, the legal framework surrounding so-called fetal rights is growing more sophisticated and now has an audience with conservative members of the U.S. Supreme Court. In the Dobbs ruling, Justice Samuel Alito gave oxygen to the concept that fetuses are, as law professors Melissa Murray and Kate Shaw describe, “an underrepresented constituency in need of judicial protection.” There is discussion throughout the Dobbs decision that Mississippi, along with other jurisdictions and institutions, view the fetus as an “unborn human being” and that Roe and 1992′s Planned Parenthood v. Casey, which affirmed Roe, can be distinguished from other substantive due process decisions because Roe and Casey uniquely involve “the destruction of… ‘potential life.’”
Professors Murray and Shaw further note that the majority’s reference to Justice Clarence Thomas’ position that abortion is a form of “racial genocide,” while not at all necessary to buttress the majority’s legal position, is included to socialize the concept that “limits on abortion [are] antidiscrimination measures, and more importantly, [that] fetuses [are] a minority group” in need of equal protection under the laws. The Alabama Supreme Court did not miss this invocation of “civil rights″ for fetuses in its recent IVF decision and cites the decision for that concept.
It is not a coincidence that a legal framework to protect fetal rights is emerging at the same time as our country attempts to beat back encroaching authoritarianism. Not only were attacks on reproductive rights hallmarks of recent rises of authoritarian regimes in Hungary and Poland, but also, as scholars have noted, “reproductive and bodily autonomy is a necessary component of full citizenship and a fully functioning democracy; all people, including those with the capacity for pregnancy, must be able to exercise control over their bodies in order to participate fully.”
Expanding fetal (and embryonic) personhood cannot coexist with the full personhood of those who are pregnant or even those not yet pregnant but who wish to be. It increases the ability of the state to police and criminalize pregnant people, their behavior and their pregnancy outcomes.
While pregnant women are begging state courts around the country to recognize their personhood and their right to life — to grant them the basic right to have a life- or health-saving abortion — states are granting such rights to frozen embryos without so much as a passing recognition of its cruel hypocrisy.
Abortion bans and fetal personhood seek to control women; to surveil, criminalize and further marginalize those who are deemed a threat to prevailing hierarchies; and diminish their ability to participate in public and civic life by establishing legal and constitutional protections for fetuses that are being denied to them — a threat to democracy as clear as day.