Recently, the GOP blocked a bill that would protect the rights of people to seek invitro fertilization treatment. If you ask the general public what are the root issues surrounding abortion, IVF treatment, and women’s rights, it comes down to whether or not a fetus or embryo is a “person”. But this is misleading at best and malicious goal-shifting at worst. Let’s explain what fetal or embryonic personhood actually means and looks like within the American legal system. This discussion will not attempt to sway your opinion on abortion or abortion rights. It will simply explore the American legal landscape with fetal and embryonic personhood.

First, the issue is NOT, and I repeat, is NOT about whether or not a fetus or embryo is scientifically a person. Whether a fetus or embryo is a person by scientific standards has no sway at all in this conversation. It also has no basis in what most Americans think about the issue. Consider that corporations in America are legally people, but are not scientifically people. I’d also bet most Americans agree that corporations are not people.

All that is required to call a fetus or embryo a legal person is a law that says a fetus or embryo is a legal person within the US.

This discussion will explore the implications of fetal and embryonic personhood within the American legal system.

While this discussion will focus on the fetus as the recipient of legal personhood, all points are equally valid for an embryo as well. Let’s start at the beginning, the Constitution of the United States of America.

Quote.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”

Unquote.

To summarize, all people BORN or naturalized are considered citizens. But a fetus isn’t born yet, which means for all intents and purposes, a fetus is a stateless, undocumented resident in the US. Let’s see how the US government currently defines undocumented residents within its jurisdiction. Here is 8 US Code Section 1101.

A3) The term “alien” means any person not a citizen or national of the United States.

A fetus is neither a national nor a citizen. It is stateless until born.

A15) The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—

(1) an ambassador, public minister, or career diplomatic or consular officer who has been accredited by a foreign government, recognized de jure by the United States and who is accepted by the President or by the Secretary of State, and the members of the alien’s immediate family;
(2) upon a basis of reciprocity, other officials and employees who have been accredited by a foreign government recognized de jure by the United States, who are accepted by the Secretary of State, and the members of their immediate families; and
(3) upon a basis of reciprocity, attendants, servants, personal employees, and members of their immediate families, of the officials and employees who have a nonimmigrant status under (i) and (ii) above;

There are no fetal carveouts for the above definitions.

If a fetal person is, by definition, an undocumented alien, does that make regulating birth regulating immigration/naturalization (converting a non-citizen into a citizen)? Do states have the authority to regulate immigration/naturalization or is that solely in the jurisdiction of Federal?

Common Law and Law Enforcement

Dreamers are often used as examples of non-US citizens getting equal protection unconstitutinally. The conservative argument against the DREAM act was that it was unconstitutional because it ascribed equal protection to non-US citizens. Why would the same argument not apply to equal protection of a fetus if a fetus is a person? Plyler set the precedent that non-citizens do have a degree of equal protection of rights, but reversing Plyler is a goal of the Republican party.

In a related vein, Texas and other states have argued and benefitted from arguing that undocumented immigrants have no equal protection of rights under the Constitution. Why wouldn’t judicial estoppel apply when they argue a non-citizen fetus deserves equal protection? Greg Abbott has stated on record that he would shoot immigrants crossing illegally but the Biden admin would charge them with murder. Similarly, a Texas prison guard miscarried while on shift, and the State of Texas argued it’s not clear what rights the fetus has.

Also in Texas, you are not allowed to get divorced if you are a pregnant woman because the state has no jurisdiction over the fetus until after it’s born.

Abortion as Self-Defense

It’s legal to kill people in self-defense, even though self-defense is not an enumerated right. In fact, there are many more court cases affirming your right to self-defense than there are court cases affirming your right to healthcare. Consider the Castle Doctrine.

A castle doctrine, also known as a castle law or a defense of habitation law, is a legal doctrine that designates a person’s abode or any legally occupied place (for example, an automobile or a home) as a place in which that person has protections and immunities permitting one, in certain circumstances, to use force (up to and including deadly force) to defend oneself against an intruder, free from legal prosecution for the consequences of the force used.

The common rebuttal to this is that the fetus isn’t attacking the mother. However, women die every day giving birth and that’s not to mention the women hurt that don’t die. Usually birth entails blood, pain, and screaming. You’d be hard pressed not to call that an attack.

The follow-up rebuttal is that the fetus doesn’t know it’s attacking the mother. This, too, rings empty. Consider the following scenario. A pregnant woman attacks you, and in the course of defending yourself, you put your knee in her stomach or you push her to the ground, killing the fetus. Should you go to jail for murder becuase the fetus did not know it was attacking you?

The Word ‘Person’

Personally (no pun intended), I think the issue is muddied for no reason because of the word person. What if you use a different word that means the same thing?

Legally, person and individual are synonymous. If you break down the word individual, it means unable to divide further. A woman is an individual, even when pregnant with a fetus. You can’t divide her from her fetus without significant effort, harm, or death. Birth is a process that creates a new individual.