Is a fetus a ‘person’? A fringe idea could be the next post-Roe v. Wade chapter | Editorial

Tiffany Tompkins/

A pregnant woman walks into an emergency room experiencing a miscarriage, or she gives birth to a stillborn. Someone becomes suspicious and notifies police. They want to know: Is the woman at fault? Everything she’s done during her pregnancy comes under scrutiny. Did she take any drugs or medication? Did she research abortions on the internet?

A “pro-life” prosecutor decides to make her a pariah. She might face criminal charges, child endangerment or, worst-case scenario, manslaughter or murder if prosecutors believe she intended to end her pregnancy.

This is a dystopian scenario — what could happen if anti-abortion zealots take their positions to an extreme. And it’s not out of the realm of possibility.

Abortion-rights groups fear the next frontier in the fight to take away reproductive rights is to grant fetuses “personhood” status. Anti-abortion groups such as Americans United for Life are pushing for a federal executive order that would recognize “preborn persons as constitutional ‘persons’ ” entitled to equal protection under the U.S. Constitution. Florida’s U.S. Sen. Marco Rubio recently introduced the ‘‘Unborn Child Support Act,” which would grant child-support payments to women “at any stage of development” of a pregnancy. The legislation appears to be a way to make fetal personhood more palatable to Americans.

In Florida, the “Human Life Protection Amendment” is trying to put fetal personhood on the 2024 ballot. The proposed amendment to the state Constitution would create a “God-given right to life of the preborn individual.” The citizen initiative recently cleared its first hurdle but still needs almost 900,000 petition signatures to make it on the ballot. Voters would have to give it 60% approval for final passage. It’s a long shot this will ever happen.

Fortunately, polls have shown broad support for abortion rights in Florida, and voters in other states have rejected similar ballot initiatives. But this is an example of the extremes to which the anti-abortion movement can go without Roe v. Wade — struck down by the U.S. Supreme Court in June — and it’s the type of next step that could pick up steam in conservative state legislatures, as it has in Georgia and Arizona.

The rationale goes that, if life begins at conception, then ending a pregnancy is no different than murder. This might seem like a fringe belief to most Americans. But, until just a few months ago, banning abortions with no exception for rape and incest was also a fringe idea. Yet here we are: Florida now bans abortions after 15 weeks without those exceptions, and many other states have done so as well.

Mark Minck, chairman of Protect Human Life Florida, the group sponsoring the proposed constitutional amendment, told the Herald Editorial Board he wants to fix what he believes is an inconsistency in state law. Florida law says the killing of “an unborn child” by injuring the mother “shall be deemed murder in the same degree” as if the mother had been killed. Yet women who voluntarily end a pregnancy are exempt.

If approved by voters, the proposal would effectively ban abortions at any stage of a pregnancy, according to Caroline Mala Corbin, a University of Miami School of Law professor who specializes in reproductive rights.

While the proposed amendment makes an exception “to save the life of the mother,” it also requires “reasonable steps to save the life of the preborn individual.” Whatever “reasonable” means could create a chilling effect among doctors fearful of their medical judgment being second-guessed, putting women’s lives at risk.

The proposal also makes an exception for “spontaneous miscarriage, or spontaneous fetal demise.” This is considered the most common type of pregnancy loss, often occurring because the fetus isn’t developing normally. But, Corbin explained, when a fetus is considered a person, that opens the door for any miscarriage to be investigated as a possible abortion or as neglect by the mother.

Could a woman be charged with child endangerment if she took, for example, aspirin, some types of antidepressant or any medication that doctors advise against during pregnancy? It’s uncharted territory.

Charges of ‘feticide’

Between the 1973 Roe v. Wade U.S. Supreme Court ruling and 2020, the nonprofit National Advocates for Pregnant Women documented more than 1,700 instances across the country in which women were “arrested, prosecuted, convicted, detained, or forced to undergo medical interventions because of their pregnancy status or outcomes.” Those women were disproportionately Black and brown and usually poor.

In 2012, an Indiana woman faced feticide charges after she attempted suicide while pregnant. Last year, an Alabama woman faced felony charges for taking prescription medication for debilitating back pain while pregnant. The charges were later dropped. Many others have been charged for drug use during pregnancy, according to the NAPW.

At least 11 states have “extremely broad” fetal personhood language on the books, according to the NAPW. Most of these laws were passed while abortion rights were protected in the Constitution. They were mostly symbolic, but with that protection gone, questions arise on how these laws can be applied, NAPW acting Executive Director Dana Sussman told the Editorial Board.

Georgia is about to test that. Under the state’s abortion ban, a fetus is considered a person after cardiac activity is detected, roughly at six weeks, making it eligible for child support and state income tax exemptions.

A similar law in Arizona was put on hold by a court pending a lawsuit by abortion rights groups who argue that women and doctors could be exposed to charges of child abuse if a pregnant woman undergoes medical procedures that can harm a fertilized egg.

Think of a pregnant woman with cancer. Would she be forced to hold off on chemotherapy? Corbin said that’s unclear under Florida’s proposed constitutional amendment.

Also think of in-vitro fertilization, a popular method to help couples conceive that often involves disposing of unused, fertilized eggs. Could IVF be criminalized?

Criminalizing the actions of women and medical providers seems to be at the core of “personhood” measures. It’s surreal that such extreme ideas could gain traction in Florida and the United States, but we dismiss these efforts at our own risk.