The legal consequences of fetal personhood
In the ongoing war against women’s reproductive freedoms, the religious organization PersonhoodUSA has been pushing for state referenda on Personhood Amendments. These initiatives would define legal personhood under a state’s constitution as beginning at the moment an egg is fertilized. This would, of course, criminalize abortion, as well as methods of birth control that may interfere with a fertilized egg (like the morning-after pill, and perhaps even the regular Pill). Seventy-three percent of Colorado voters rejected one of these amendments last fall, but PersonhoodUSA is pushing on to get another on the ballot in Florida in 2010.
This proposed amendment reads: “The words ‘person’ and ‘natural person’ apply to all human beings, irrespective of age,…from the beginning of the biological development of that human being.”
Under this amendment, Florida could make no legal distinction between a one-celled zygote and anyone else. (Some of our more science-minded readers might point out that “the beginning of biological development” of any human being occurred with the rise of the first cell, between 3 and 3.3 billion years ago. This is correct; however for now I will accept fertilization as the legal definition.)
Redefining legal personhood to include the unborn is a radical change in policy that goes beyond the mere prohibition of abortion: as Justice Blackmun observed in Roe v. Wade (see §IX, A), never in the United States has “person” been defined to mean anything other than a born human—even when abortion was criminalized generally. This redefinition (if it is taken seriously as public policy) will inevitably lead to some sticky—and unintended—legal consequences.
The Fourteenth Amendment to the US Constitution states that “No State shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment means that the state may not treat Person A differently from Person B, and guarantees all persons the rights and protections that are necessary to a concept of “ordered liberty.” If a fetus or embryo is a person, then it must also be guaranteed equal protection of the laws and all the same rights and protections.
The US Constitution also mandates a decennial census for the purposes of apportioning Representatives, to be based on “the whole number of persons in each state...” This “whole number of persons” must also include the unborn, which leads to a major logistical problem. Pregnancy does not begin until a blastocyst implants in the uterine wall—about seven days after fertilization. Between 40 and 80% of blastocysts never implant, never result in a pregnancy, and are secreted. There is no way of knowing (apart from installing microscopic cameras in every woman’s uterus) whether an egg has been fertilized until after implantation has occurred, and the hormonal signs of pregnancy can be detected. Under the Personhood Amendments, there are now thousands (millions? tens of millions?) of legal persons out there who may or may not exist. This will make life very difficult for Census takers, who will now have to count Schrödinger’s persons, in addition to the whole number of born persons.
And it will make life more difficult still for women. Florida’s penal code (§782.07 (3)) states that: “A person who causes the death of any person under the age of 18 by culpable negligence…commits aggravated manslaughter of a child, a felony of the first degree…” This is punishable by up to 30 years in prison (§775.082 (b)).
“Neglect of a child” is defined as: “ A caregiver's failure or omission to provide a child with the care, supervision, and services necessary to maintain the child's physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child.” (§827.03 (3)(a)(1)).
Therefore, any woman who may be carrying a fertilized egg (which is to say, any ovulating, sexually active woman) must do everything that “a prudent person would consider essential” to maintain that person’s health. Hormonal contraceptives, needless to say, are prima facie evidence of criminal intent. If her lack of care results in the death of the child, she faces up to 30 years in prison for aggravated manslaughter.
Gathering evidence of this manslaughter will be difficult, as no one can be quite sure when these persons exist. The state could subpoena women’s menstrual blood, inspect the endometria for evidence of an ovum, and verify that it was fertilized. An expensive and cumbersome process to be sure, but state officials would have to do it: if they didn’t, they would risk being sued for failure to enforce equal protection of Florida’s laws.
By granting the embryo equal protection of the laws, the state would be forced to deny the same to the woman—who is, after all, also a person under the Constitution. A man’s body would not be subject to the same scrutiny, nor would the body of a pre-pubescent girl or post-menopausal woman. By creating a new class of legal persons (embryos and fetuses), an existing class of persons (fertile women) would invariably be singled out for unequal treatment by the law. An unborn organism’s survival depends entirely and uniquely upon the sustained metabolic processes of another—a symbiotic relationship that can never be an equal one. Making the unborn a legal person sets the Equal Protection Clause on a collision course with itself: it forces the Constitution to balance two incompatible goods, until—like Isaac Asimov’s robots—it shuts itself down completely.
If the legal consequences of these Personhood Amendments seem absurd or grotesque, it is because nobody intends that they be interpreted to mean what they say. PersonhoodUSA has no desire to subpoena women’s menstrual blood or count embryos in the Census—only to wear away at women’s reproductive rights by forcing endless litigation. But it is what the amendments mean. Next November, Florida voters will have a choice: either a fetus/embryo has all the protections and guarantees of legal personhood, or a woman does. It is not possible to have both.