For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries
State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far, no personhood laws have passed. Why? I am currently writing an article that offers a possible explanation. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion has led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, fertility, and women’s health in general. Public concern over the “side effects” of personhood laws seems to have persuaded even those opposed to abortion to reject personhood legislation. If this is so, personhood opponents may have struck on a strategy that could apply more broadly. Various anti-abortion regulations—not just personhood laws—have deleterious “side effects” on women’s health. Focusing the public’s attention on these side effects could not only create stronger support for access to abortion care but could also better promote the full spectrum of women’s healthcare needs.
After years of an incremental approach to restricting access to abortion care, the movement to establish legal personhood at the moment of conception has recently revived. Since 2008, numerous personhood initiatives have sprung up throughout the United States. While the language and form of these proposals vary from state to state, each essentially attempts to secure legal rights for pre-born human beings starting from the moment of fertilization. Voters and legislators have opposed these personhood measures, which have proved overwhelmingly unsuccessful both in the past and in their more recent incarnation.
The personhood movement’s nationwide failure is remarkable given the climate of hostility to abortion rights in many states during the same time period. For example, in 2011, state legislators enacted ninety-two new abortion restrictions into law, shattering the previous record high of thirty-four abortion restrictions adopted in 2005. The failure of personhood proposals in recent years contrasts sharply with the success of ever more invasive abortion regulations, such as biased “informed consent” laws, forced ultrasounds, bans on abortion after twenty weeks, and burdensome regulations designed to shutter abortion clinics. For example, Mississippi, which has adopted virtually every type of abortion restriction that remains constitutionally permissible, is currently trying to shut down the last remaining abortion clinic in the state. Yet, even Mississippi—shockingly—failed to pass a personhood ballot initiative.
Given the wide variety of contexts in which personhood proposals have been put forward, it is difficult to reach a definitive conclusion on why the personhood movement has yet to succeed in enacting any laws. The uniform failure in the push for zygote personhood appears rooted, at least in part, in reproductive rights advocates’ success in linking personhood proposals to health issues other than abortion for which the public has much more sympathy. In other words, it was not support for abortion but concern over allegedly “unintended consequences” on women’s health that has doomed personhood proposals. Personhood laws would not only ban all abortion care, including in cases of rape and incest, but also would hinder access to care for pregnant women, ban some of the most effective methods of contraception, and hamper fertility treatments such as IVF.
The failure of the personhood ballot initiative in Mississippi—arguably the most conservative state in the Union—illustrates the importance of linking personhood laws to medical issues other than abortion. A month before the election, the personhood initiative was polling at 80% approval. Yet an astonishing 58% of Mississippi voters ultimately rejected the personhood measure. Commentators identified several explanations for this surprising result, but the most common reasons indicated for voting against the initiative had to do with potential implications for women’s access to healthcare. One report noted, “In Mississippi, concerns that the measure would empower the government to intrude in intimate medical decisions far afield from abortion—involving not just infertility, but also birth control, potentially deadly ectopic pregnancies and the treatment of pregnant women with cancer—were decisive in its defeat.” Ironically, the personhood movement’s attempt to vilify abortion by personifying the fetus may have educated the public about the importance of preserving access to abortion care in order to preserve access to less stigmatized forms of healthcare.
While legislators and the public have expressed concern about anti-abortion laws that impinge upon women’s health in the context of personhood proposals, a similar understanding of the “side effects” of other types of abortion restrictions has not yet developed. Part of the popularity of anti-abortion measures rests on the faulty belief that those laws affect only the “bad” women who seek abortions. This belief relies on the false assumption that abortion can be isolated from other aspects of women’s health. However, as a matter of medical reality, abortion cannot be isolated from the continuum of women’s healthcare. Thus far, the public appears to have recognized this reality in the context of personhood legislation, but has otherwise failed to understand the interconnectedness of abortion care with women’s health generally. In fact, various existing abortion restrictions already obstruct women’s healthcare, but these harmful effects remain unrecognized. For example, current laws targeted at abortion have spillover effects on miscarriage management and prenatal care.
The federal “partial birth” abortion ban, upheld by the U.S. Supreme Court in Gonzales v. Carhart, illustrates how laws aimed at abortion impedemedical care for women more generally. The federal ban purports to prohibit one type of abortion procedure called “partial birth” abortion by its opponents, but known medically as intact D&E. Lori Freedman, a leading researcher on the effects of anti-abortion policies on physicians, found that some physicians who do not routinely provide abortions are nevertheless impacted by the ban. For example, one physician attempting to care for a patient who was miscarrying late in pregnancy felt unable to treat her patient in the safest manner she thought possible for fear of violating the law. In fact, technically this situation would not fall within the scope of the federal “partial birth” abortion ban, since the physician did not start the procedure with the intent to perform an intact D&E. Nevertheless, regardless of the technicalities of the law, the law’s effect has been to create a system in which doctors feel circumscribed in the exercise of their medical judgment. Tracy Weitz argues that the law has become its own “Panopticon,” a perpetual surveillance system that inhibits not just abortion care but also the care of pregnant women suffering from miscarriages.
The regulation of information surrounding abortion care also has spillover affects on prenatal care. Oklahoma provides one stark example of information control as reproductive control. On the same day that Oklahoma passed legislation mandating that abortion patients undergo a forced ultrasound, it also passed a law protecting from tort liability physicians who fail to disclose fetal anomalies to prenatal patients. In other words, Oklahoma law forces unwanted information on some pregnant patients, while at the same time empowering physicians to conceal wanted information from others. Proponents of this legislation claim that liability preclusion laws of this sort are only anti-abortion measures, thwarting women who would seek an abortion if they knew of a fetal anomaly.
In reality, laws that permit denying information in the context of prenatal care affect not only those women who may consider terminating a pregnancy, but also those who would not choose an abortion but could use the information to plan for their families. Without information, women and their families who would choose to keep the pregnancy will not have the opportunity to prepare emotionally for an infant’s serious illness or death, to arrange appropriate care such as perinatal hospice, or to take financial steps to provide for a disabled child. Furthermore, certain fetal conditions require special care in utero. Early knowledge, decision-making, and intervention can be essential to a positive outcome. In addition, in some cases testing can reveal information about fetal characteristics that could threaten the mother’s health. Thus, this assertedly anti-abortion law affects far more than simply abortion decisions.
The public has been supportive of legislation that appears to target only abortion, even though many of these laws have detrimental side effects on women’s health similarly to personhood proposals. Although there are important differences between personhood laws and other types of abortion regulations, battles about personhood proposals could be instructive for reproductive rights advocates. A key strategic opportunity may lie in erasing the artificial line between abortion care and other women’s health issues. As a practical matter, abortion cannot be isolated from women’s healthcare more broadly. We can see this by analyzing the “side effects” of anti-abortion legislation such as personhood laws and existing restrictions on abortion care. Public education, unwittingly spurred on by personhood proposals, could help to increase awareness that laws attacking abortion, inevitably, have wider consequences for women’s health.
Maya Manian is Professor of Law at the University of San Francisco School of Law. You can reach her by e-mail at mmanian at usfca.eduOriginally posted on Balkinization blog