EXPLAINER: What is the role of personhood in the abortion debate? | Healthy Aging

By JEFF AMY – Associated Press

ATLANTA (AP) — The concept of “personality” has surfaced in debates since the U.S. Supreme Court overturned federal abortion law. Some states have passed legislation or constitutional amendments to introduce the standard, and anti-abortion advocates have pushed for similar changes elsewhere.

But the differences between personality laws and other abortion restrictions are sometimes poorly understood. Abortion rights advocates say personality laws could have far-reaching consequences that could hamper in vitro fertilization or charge women who have abortions with murder. Proponents of the personhood say that declaring that all human beings, including those in the womb, have rights provides important moral clarity and that changes arising from the concept are desirable.

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WHAT DOES PERSONALITY MEAN?

In his decision Roe v. Wade in 1973, which provided nationwide abortion rights, the US Supreme Court majority held that “the word ‘person’ as used in the Fourteenth Amendment does not include the unborn child.”

Some anti-abortion advocates say this is wrong, arguing that being human includes fertilized eggs, embryos and fetuses, which should be considered human beings with the same rights as those already born.

Those who advocate this standard of personality want to end all abortions and condemn laws that include exceptions allowing abortions in cases of rape or incest or fetuses with genetic abnormalities.

And the impact of personality laws has been felt beyond abortion regulations. They could restrict in vitro fertilization, criminalize women who terminate pregnancies or engage in behavior harmful to the fetus, and even grant child maintenance, tax benefits, and other rights to a fetus.

Opponents say the personality standard is unconstitutional because of its wide-ranging and uncertain implications, and argue it puts people at risk of prosecution for a range of crimes.

“Because the Personalhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement against plaintiffs and their patients, it is unconstitutionally vague,” wrote attorneys challenging Arizona’s law.

HOW MANY STATES HAVE THESE LAWS?

Alabama, Arizona, Georgia, Kansas and Missouri all have personal statutes.

Georgian law is perhaps the most far-reaching, granting certain rights to unborn children, including tax breaks and child benefits. It went into effect on July 20 after a federal appeals court ruled in its favor. A federal court has put Arizona’s law on hold, at least for now.

The 2013 Kansas law has had little practical impact since 2019, when the state Supreme Court declared abortion a fundamental right of the state. The Kansans will vote Tuesday on whether to amend the state constitution to overturn that decision and allow state legislatures to restrict or ban abortion.

In 2018, Alabama voters passed a state constitutional amendment ensuring “the protection of the rights of the unborn child.”

Voters in several other states have rejected state constitutional amendments that gave them personality rights, including in Colorado in 2008, 2010 and 2014, in Mississippi in 2011 and in North Dakota in 2014

WHAT DIFFERS A PERSONALITY ACT FROM A NON-ABORTION LAW?

About a decade ago there was a schism in the anti-abortion movement. Some found being in person impractical, especially as electoral and legislative defeats began to pile up. But Personhood advocates argued that these other anti-abortion advocates lacked moral clarity.

“The big difference between the Personhood movement and the anti-abortion movement is that the Personhood movement sees all innocent human lives as valued and deserving of equal protection from the law. And that includes every human life in the world,” said Ricardo Davis, President of Georgia Right to Life. The National Committee on the Right to Life cut ties with the right to life in Georgia in 2014 after opposing bills that restricted abortion but allowed exceptions for rape and incest.

Still, the broad influence of personhood is evident in the wave of bills in states that would ban abortion once a “detectable human heartbeat” is present, usually around six weeks. This phrasing was inspired in part by the idea that people can embrace heart activity as the moment of aliveness, even though a heart may not be fully developed at that point.

Does this mean that abortions will lead to murder trials?

Supporters of the laws say they only provide for prosecuting abortion providers who offer illegal procedures. For example, Georgia has a criminal law that punishes illegal abortions with up to 10 years in prison. But opponents fear prosecutors could seek murder charges against providers and women who obtain abortions, that women could be at criminal risk if they miscarry, and that people who assist someone with an out-of-state abortion could also be prosecuted.

“If you are a person and you were aborted as a fetus, you would define that as murder. Or they could possibly define that as murder,” said Jolynn Dellinger, an associate professor at Duke University Law School.

The standard of personality already influences laws that allow people to be prosecuted for the death of a fetus and its mother when they kill a pregnant woman. According to a study by Dr. Laura Faherty, a researcher and pediatrics professor at Boston University, says at least 25 states already classify drug use during pregnancy as child abuse or neglect. National Advocates for Pregnant Women, which campaign for abortion rights, found 1,331 women arrested or imprisoned for crimes related to their pregnancy between 2006 and 2020.

“Fetal personality, I think, is becoming a question of controlling women and pregnant people and not trusting them or allowing them to make decisions about their bodies and their fetus,” said Rebecca Kluchin, a professor at California State University in Sacramento, which examines the history of abortion.

WHAT ARE OTHER POSSIBLE CONSEQUENCES FOR THE PERSON?

A Texas woman attracted attention after the Supreme Court ruling by claiming she could drive in a high-occupancy lane that requires two people to sit in a vehicle because she was 34 weeks pregnant.

Abortion rights advocates have repeatedly expressed concern that personal protection laws could harm in vitro fertilization by giving rights to embryos that are created and then frozen. Georgian law circumvents this problem by granting rights only to embryos in the womb. But if multiple embryos are implanted, Georgian law could require a woman to give birth to multiple children, experts warn. Alabama’s amendment does not specify how its standard of personality will affect issues other than abortion, and in vitro fertilization has not been affected, abortion-right advocates say.

Georgian law states that a woman can claim child benefit during pregnancy up to the amount of her medical and other pregnancy-related expenses. It also allows her to claim an unborn child as subject to state income taxes, although the state has yet to figure out how that will work. The law also states that unborn children should be included in the state’s population when the state government makes decisions based on population, although the federal government conducts the census.

Associated Press writers Kim Chandler of Montgomery, Alabama, and John Hanna of Topeka, Kansas contributed.

The AP’s full coverage of the fall of Roe v. Wade can be found at: https://apnews.com/hub/abortion

Copyright 2022 The Associated Press. All rights reserved. This material may not be published, broadcast, transcribed or redistributed without permission.

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