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National NOW Times >> Winter 2007  >> Article

Viewpoint: Not Just Semantics

By Kim Gandy, President

As I'm writing this column, NOW is preparing to honor the 34th anniversary of the Supreme Court's ruling in Roe v. Wade, which legalized abortion. So what happens if Roe v. Wade is reversed? Most people believe that the question of abortion will revert to individual state legislatures. Will that be devastating for countless women? Most assuredly. Is that as bad as it gets? Definitely not.

Reversing Roe is only one of several parallel long-term strategies of the anti-abortion movement. Their ultimate goal is to end abortion and contraceptive use entirely, by any woman in any state, and one of their strategies involves establishing that fetuses, even fertilized eggs, are "persons" under the protection of the U.S. Constitution.

Not sure why establishing "fetal personhood" would be so important to our opponents? Take a look at the Roe v. Wade decision language that still guides their patient strategy:

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 opponents 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. 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 we 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) looked at the "separate but equal" doctrine "in the light of its full development and its present place in American life" and found that the situation had changed sufficiently to justify overruling their prior decision.

Although the subject is different, that example may help activists understand why the right-wing is so determined to change the social and political status of the fetus. Because they intend to use the changes they are now pushing to bolster future arguments for a reversal of Roe, and beyond that, for the constitutional elevation of fetal personhood — and we must oppose their efforts for the same reason.

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 in 2002 classified a fertilized egg as an "unborn child" eligible for federal low-income health insurance. They said the change was needed to cover pre-natal care — but the Clinton administration had covered pre-natal care without fetal personhood.

2) The same year, Bush directed the Advisory Commission on Human Research Protections to consider embryos as "human subjects."

3) 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." Although the stated purpose was to protect pregnant women from violence, conservatives in Congress quickly killed a substitute that would have accomplished that purpose by doubling the penalty for any crime against a pregnant woman.

4) 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.

5) In 2005 and 2006, three bills were introduced in Congress to severely punish abortion doctors unless they tell patients (contrary to medical knowledge) that "your unborn child" will feel pain in "the process of being killed in an abortion." This so-called "fetal pain" bill is already on tap for the 110th Congress.

In addition to these legislative and regulatory efforts to establish fetal personhood at the federal level, 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.

The South Dakota abortion ban, which said that "life begins at the time of conception," was turned back by dedicated feminist activists, but 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.

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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