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So You Want Fetal Personhood? Try Whistling This…

Let’s look for some really uncomfortable common ground.

ScottCDunn
5 min readAug 7, 2022

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Shortly after the Supreme Court ruled in Dodd vs. Jackson Health, I got my first wind of the concepts of fetal personhood and the rights of the fetus. Until then, I had never really considered the rights of the fetus. I really don’t think that conservatives have thought their little project all the way through. And after some study, I began to realize that if in some states, progressives like myself can’t fight it, then maybe we could find common ground.

I got my first bit of hope when I read a story about a pregnant woman who fought a traffic ticket with a novel defense: her fetus was a person under the law. Now that could have some legs. Fetal personhood could drive greater state support for women who are pregnant. This could be an unintended consequence of fetal personhood and could work in favor of progressive priorities.

Fetal personhood laws are in force in 38 states and ignorance of those laws is no excuse. Such laws allow for the prosecution of women for drinking and using other drugs while pregnant, including abortion pills. In fact, anything that could be seen as detrimental to the health of a fetus could be used as a cause of action against a mother under fetal personhood laws.

Pending abortion bans and existing fetal personhood laws raise the legal status of the fetus above the mother. This would go against hundreds of years of jurisprudence. Here’s a little bit of law review from Virginia Commonwealth University, “Exploring the impact of Dobbs v. Jackson”:

The court argues that the word “abortion” does not exist in the Constitution, but then, neither do the words “fetus” or “fetal life” or “potential human life.” Rather, the 14th Amendment explicitly identifies “persons born” as the measure of human rights-bearing status. The court’s argument dispenses with the idea that women have liberty interests in their own body but empowers states to elevate the personhood of fetuses. Moreover, the court’s sleight of hand reliance on footnote 20 from Geduldig v. Aiello, which argued that pregnancy has nothing to do with sex, and that therefore, pregnant women can be treated differently from other people without offending the Constitution

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