Roe-Be-Gone Effort Focuses on Fetal Personhood
Below the Belt: A Biweekly Column by NOW President Kim Gandy
December 13, 2006
While countless families on the Gulf Coast were still struggling to rebuild their lives from Hurricane Katrina, while the death toll of U.S. service members and Iraqi civilians climbed daily, and while over 46 million people in this country suffered from lack of health care, right-wing Republicans decided to spend the last few days of their reign advocating for fetuses. After all, why tackle complex and deep-rooted problems like poverty and war that have potentially expensive solutions when you can tie up Congress talking about fetuses? For many Republicans, this is not a rhetorical question.
Indeed, declaring fetuses to be equally protected "persons" (a legal term of art) under the law, and eventually under the U.S. Constitution, continues to be a holy mission for anti-abortion activists in the House, Senate, White House, throughout state governments, and beyond.
So why is establishing "fetal personhood" important to our opponents? Take a look at this language from Roe v. Wade:
"If this suggestion of personhood is established, the appellant's [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment"
In other words, if they can convince the Supreme Court that "times have changed" since Roe was decided and that a fetus should now be recognized as a "person" under the Constitution, then abortion would immediately become an act of murder in every state across the country. It is this prospect that fuels today's fetal missionaries, such as Senator Sam Brownback (R-Kan.), U.S. Representative Chris Smith (R-N.J.) and a few old white men who work in a nearby white house.
So if you think the worst thing that could happen is a Roe reversal that would throw the issue back to the states, making abortion illegal in some states but legal in others, think again. That's clearly the first goal of our opponents, but make no mistake — their long term goal is to establish fetal personhood under the Constitution. And once a fetus is considered a "person" under the U.S. Constitution, no legislation, no ballot measure, no court case, no vote will be able to keep abortion legal in this country.
They aren't just talking about this long term strategy — they've been carrying it out for years. They're laying the groundwork for the establishment of fetal personhood through legislation, regulation, and executive actions on a regular basis, and women take this threat lightly at our peril.
Our opponents know that when deciding whether a previous case should be overruled, the Supreme Court can and does consider changes in social and political norms. For example, in overturning the Plessy v. Ferguson decision, which had found the doctrine of "separate but equal" to be constitutionally permissible, the Supreme Court (in Brown v. Board of Education) declined to look at the circumstances that existed at the time Plessy was decided. Instead, the Brown court looked at "separate but equal" in the educational system "in the light of its full development and its present place in American life" in finding that the situation had changed sufficiently to justify overruling the prior decision.
Although the subject is different, that example may help activists understand the right-wing determination to change the social and political status of the fetus. They intend to use those changes they are now pushing to bolster future arguments for a reversal of Roe, and beyond that, to the constitutional elevation of fetal personhood — and we must oppose their efforts for the same reason.
Anti-abortion legislators are downright giddy about the idea of turning fetuses into people and prosecuting women and doctors for murder. The scary part is that these guys are doing more than simply dreaming about outlawing abortion once and for all. In fact, they are downright serious about searching out opportunities to establish the fetus as a person, both in the legal sense and in the popular mindset.
Don't buy the argument that "it's just semantics." Words do matter, and in the case of fetal personhood, they matter a lot. Here's the progress they've made in just the past few years:
1) The Bush administration added new regulations to the State Children's Health Insurance Program (S-CHIP) in 2002 that classified a fertilized egg as an "unborn child" eligible for health insurance. They said the change was needed to cover prenatal care — but it was really just "cover" for another fetal personhood initiative. (In fact, the Clinton administration had covered prenatal care under S-CHIP without regulations establishing that an embryo is a child.) The same year, Bush told the Advisory Commission on Human Research Protections (under the Department of Health and Human Services) in 2002 to consider embryos as "human subjects."
2) In 2004, Bush signed into law the so-called "Unborn Victims Of Violence Act," which amended federal criminal laws to create a second, separate offense for killing or injuring a "child in utero," thus transforming even a fertilized egg or zygote into a child — a person — under that federal law. Although the stated purpose was to protect pregnant women from violence, conservatives in Congress quickly killed a substitute that would have doubled the penalty for any crime against a pregnant woman. This law covers only crimes committed on federal land, so it has limited actual application — it's just another step in the march toward fetal personhood.
3) Prosecutors across the country are using child abuse and neglect statutes to criminally charge women for actions that potentially harm the fetus, claiming for example that pregnant women were "delivering" drugs to "minor children" through their umbilical cords.
4) In 2005 and 2006, three bills were introduced in Congress that would severely punish doctors unless they tell women seeking abortions (contrary to medical knowledge) that "your unborn child" will feel pain in "the process of being killed in an abortion," offer her anesthesia for the fetus, and get a signed statement that she received the information. This so-called "fetal pain" bill was narrowly defeated in the closing days of the 109th Congress, but is already on tap for the 110th.
In addition to these legislative and regulatory efforts to establish fetal personhood at the federal level, there have been numerous state efforts to add to the list. In 2003, Bush's brother in the Sunshine State appointed a legal guardian for the fetus of a 22-year-old severely mentally disabled woman who became pregnant after being raped. The Florida Supreme Court was charged with deciding whether an abortion would be in the best interest of the woman. Jeb went so far as to stall the appointment of a guardian for the woman herself until a second guardian was first appointed for the fetus, and then appealed the circuit court decision to deny fetal guardianship. The woman had already given birth by the time the appeals court ruled against Jeb and his anti-woman squad, stating that a fetus is not a person, and therefore not eligible for a guardian. This time.
And of course the South Dakota abortion ban, which was defeated in a voter referendum, was called the "Women's Health and Human Life Protection Act." The ban law said that "life begins at the time of conception," and that "the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings [...]." Though South Dakota's ban was turned back by dedicated feminist activists, there are dozens of states that either have unconstitutional bans on their books or persistently propose similar ones, most of which classify fetuses as persons deserving legal protection. Every year, state legislatures across the country consider dozens of measures that would create a legal status for embryos and fetuses separate from that of the woman bearing them.
Taken together with the appointments of two anti-woman Supreme Court Justices and several anti-woman chiefs and advisors to key entities such as the Department of Health and Human Services and the FDA Advisory Panel on Women's Health, these affronts to women's rights comprise a substantial undertaking — an organized effort to supply the Supreme Court with an abundance of references for an argument that fetal personhood should be legally recognized. Every state and federal measure that calls embryos and fetuses "children," unborn or otherwise, is a resource in the right-wing's "Roe-Be-Gone" reservoir, waiting to be tapped.
I'll say it again: Don't be chastened by those who say "it's just semantics." Words matter in the law, and in the case of fetal personhood, they may matter a lot more than you think.
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