What’s the role of personhood in abortion debate?

Open this photo in gallery:

The concept of “personhood” has come up in debates since the U.S. Supreme Court overturned the federal right to abortion. Some states have passed laws or constitutional amendments to introduce the standard, and anti-abortion advocates have pushed for similar changes elsewhere.

But the differences between personhood laws and other abortion restrictions are sometimes poorly understood. Abortion rights supporters say personhood laws could have far-reaching consequences that could hamper in vitro fertilization or subject women who have abortions to murder charges. Supporters of personhood say declaring that all human beings, including those in the womb, have rights lends important moral clarity and that changes stemming from the concept are desirable.

Here’s a look at the issue:

WHAT DOES PERSONHOOD MEAN?

In its 1973 Roe v. Wade decision providing the right to abortion nationwide, the U.S. Supreme Court majority found that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

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

Those who advocate this standard of personhood want to end all abortions, and decry laws that include carve-outs allowing abortion in cases of rape or incest, or fetuses with genetic anomalies.

And the impact of personhood laws could be felt beyond abortion regulation. They could limit in vitro fertilization, criminalize women who terminate pregnancies or engage in behaviour harmful to the fetus, and even grant a fetus child support, tax benefits and other rights.

Opponents say the standard of personhood is unconstitutional because of its wide-ranging and uncertain impact, and argue it puts people at risk of prosecution for any number of crimes.

“Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement against Plaintiffs and their patients, it is unconstitutionally vague,” lawyers who challenged Arizona’s law wrote.

HOW MANY STATES HAVE THESE LAWS?

Alabama, Arizona, Georgia, Kansas and Missouri all have personhood laws.

Georgia’s law is maybe the most far-reaching, granting specific rights including tax breaks and child support to unborn children. It took effect July 20 after a federal appeals court ruled in its favour. A federal court has put Arizona’s law on hold, at least for now.

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

In 2018, Alabama voters adopted a state constitutional amendment ensuring “the protection of the rights of the unborn child.” A 2019 abortion ban law referenced the amendment, but did not repeat the personhood standard.

Voters in several other states have rejected state constitutional amendments granting personhood, including in Colorado in 2008, 2010 and 2014, Mississippi in 2011 and North Dakota in 2014

WHAT MAKES A PERSONHOOD LAW DIFFERENT FROM AN ABORTION BAN?

There was a schism in the anti-abortion movement about a decade ago. Some saw personhood as impractical, especially as electoral and legislative defeats began to pile up. But personhood proponents argued that those other abortion opponents lacked moral clarity.

“The big difference between the personhood movement and the anti abortion-movement is that the personhood movement holds all innocent human lives as cherished and deserving of equal protection under the law. And that includes every human life in the world,” said Ricado Davis, president of Georgia Right to Life. The National Right to Life Committee cut ties with Georgia Right to Life in 2014 after it opposed bills that restricted abortion but allowed exceptions for rape and incest.

Still, the broad influence of personhood is clear in the wave of bills in states that ban abortion once a “detectable human heartbeat” is present, usually around six weeks. Such wording was inspired in part by the idea that people can embrace cardiac activity as the moment of aliveness, even though a heart is not then fully developed.

DOES THIS MEAN ABORTIONS WILL LEAD TO MURDER PROSECUTIONS?

Supporters of the laws say they only envision prosecuting abortion providers who provide illegal procedures. For example, Georgia has a criminal law that makes illegal abortions punishable by up to 10 years in prison. But opponents fear prosecutors could bring murder charges against providers and women who get an abortion, that women may be in criminal jeopardy if they miscarry, and that people who help someone get an out-of-state abortion could also face prosecution.

“If you are a person, and as a fetus you were aborted, they would be defining that as murder. Or they could potentially define that as murder,” said Jolynn Dellinger, a lecturer at Duke University Law School.

The standard of personhood already influences laws that allow people to be prosecuted in the death of a fetus and its mother if they kill a pregnant woman. At least 25 states already classify drug use during pregnancy as child abuse or neglect, according to a 2019 study by Dr. Laura Faherty, a researcher and pediatrics professor at Boston University. National Advocates for Pregnant Women, which supports abortion rights, found 1,331 arrests or detentions of women for crimes related to their pregnancy from 2006 to 2020.

“Fetal personhood becomes, I think, an issue of controlling women and pregnant people and not trusting them or allowing them to make decisions about their body and their fetus,” said Rebecca Kluchin, a professor at California State University, Sacramento, who studies the history of abortion.

WHAT ARE SOME OTHER POSSIBLE PERSONHOOD CONSEQUENCES?

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

Supporters of abortion rights have repeatedly expressed fear that personhood laws could harm in vitro fertilization by giving rights to embryos that are created and then frozen. Georgia’s law sidesteps this issue by only giving rights to embryos in the womb. But if multiple embryos are implanted, Georgia’s law could require a woman to carry multiple children to birth, experts warn. Alabama’s amendment does not specify how its standard of personhood affects issues other than abortion, and in vitro fertilization has not been affected, abortion rights supporters say.

Georgia’s law says a woman can seek child support during pregnancy, up to the amount of her medical and other pregnancy-related expenses. It also allows her to claim an unborn child as a dependent on state income taxes, although the state has yet to clarify how that will work. The law also says unborn children should be counted in the state’s population when state government makes determinations based on the number of residents, although the federal government takes the Census.

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