Next week, people in Colorado will be voting on Amendment 62, a ballot measure sponsored by PersonhoodUSA. This organization seeks to establish the "pre-born," including eggs, embryos and fetuses, as separate "legal persons with protection under the law." This organization claims that its goal is to end the "injustice of abortion." In fact, they are promoting a fetal separatist movement, one that is trying to legally separate pregnant women and the fertilized eggs, embryos and fetuses inside of them. Their efforts are dangerous to all pregnant women, including those who go to term, those who expect confidential medical care, and those who want to preserve their right to life and liberty.
The argument that eggs and fetuses may be treated as if they are legally independent of the women who carry them has been used to deprive pregnant women of their status as full constitutional persons. Angela Carder was forced to have cesarean surgery to advance the rights of the fetus inside of her. Shortly after the surgery both the baby and Ms. Carder died. Ms. Carder was deprived of her right to life. Recently, a pregnant woman was kept prisoner in a Florida hospital because doctors believed that doing so would advance the rights and health of her fetus. She nevertheless suffered a stillbirth. Ms. Burton was deprived of her right to liberty. Although courts in both cases eventually held that these deprivations of life and liberty were wrong, adopting fetal separatist measures would allow outsiders to take similar actions whenever they disagreed with the pregnant woman.
In New Jersey, V.M. refused to pre-authorize cesarean surgery. Although she had a successful vaginal birth, New Jersey hospital workers reported her to child welfare authorities for medical neglect of her unborn child. This report led to the removal of the newborn from her parent's custody. As a result, V.M. her husband and her child have been deprived of their fundamental liberty interests in family life.
When doctors at a hospital learned that Laura Pemeberton was attempting to have a home birth, fetal separatist arguments became the basis for sending a sheriff to her home. She was taken into custody, forcibly restrained while in active labor, judged without representation and forced to undergo cesarean surgery, depriving her of her right to liberty, privacy, bodily integrity, medical decision-making, and due process of law.
When CT, in Iowa, was five months pregnant and fell down a flight of stairs, she assumed that she had a right to privacy in her medical information. Hospital staff, however, reported her to the police and she was arrested--deprived of her liberty--for the made-up crime of "attempted fetal homicide."
Fetal separatists analogize fertilized eggs, embryos and fetuses to African-American slaves who were once "denied their humanity" and "stripped [of] their personhood." They suggest that their goal is simply continuing an American tradition of expanding membership in the population of Constitutional persons. But, in fact, fetal separatism, in the guise of adding one group to the Constitutional population, will do something unprecedented in US history: subtracting another.
When former slaves were added to the Constitutional population, this did not in any way diminish the constitutional rights or personhood of any other people in the United States. Although slaveholders lost significant power to enslave and exploit others, they did not lose anything in terms of their status as constitutional persons under the law.
Similarly, when women of all races were added to the population of Constitutional persons, through the 19th amendment giving women the right to vote and Supreme Court cases prohibiting discrimination on the basis of sex, neither the constitutional rights nor the personhood of men was diminished. While men lost significant power over their wives and daughters as well as advantages in the worlds of work, education and civic life, they did not lose their status as full constitutional persons under the law.
In contrast, and as the examples above demonstrate, efforts to legally disconnect fetuses and to grant them entirely independent constitutional status would not merely add a new group to the Constitutional population: it would effectively denaturalize pregnant women, removing from them their status as Constitutional persons.
Passing measures that legally segregate eggs, embryos and fetuses from the pregnant woman will also result in a new regime of separate and unequal. Pregnant women could be sued, subject to child welfare interventions, or even arrested if they engaged in activities at work and at home that might be thought to create a risk to the life of the "preborn." Legally separating the "pre-born" from the pregnant women who sustain them will ensure that in jobs, education, and civic life, pregnant women will, once again, be unequal to men.
When African-Americans and women of all races were added to the Constitutional population those individuals were empowered. Adding the "pre-born" to the Constitution will not free fetuses nor will it empower them. Rather, it will empower outsiders--including police officers, prosecutors, judges, and child protection workers--to advance their beliefs about what is right for the "pre-born" by controlling the pregnant women who carry, nurture, and sustain them.
People voting on a "personhood measure" in Colorado next week should remember what is really at stake--the personhood of pregnant women.