For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries
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 impede medical 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.edu