By: Victoria Honard
Published on: October 1, 2024
After Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, countless questions arose about the implications of the decision, not only regarding access to abortion, but also the farther-reaching implications of the ruling. In LePage v. Center for Reproductive Medicine, we saw how quickly a state Supreme Court ruling could impact access to IVF services when the Alabama court ruled that frozen embryos can be considered children and the destruction of embryos could result in criminal or civil liability.[1] Following the ruling, several IVF providers throughout Alabama were advised to pause IVF treatments because of the uncertainty around potential legal implications.[2] Alabama lawmakers quickly realized that the state Supreme Court’s ruling would prevent many individuals from having the “unborn children” they were fighting so hard to protect. More than two weeks later, Alabama Governor Kay Ivey signed a bill into law to shield providers and patients using IVF if embryos are destroyed.[3]
The Alabama Supreme Court ruling raises questions about the enforceability of fetal personhood that has far-reaching implications. The debate around fetal personhood most notably started in 1973 in Roe, when the United States Supreme Court ruled that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”[4] The implications and enforcement of abortion bans and fetal personhood laws go far beyond abortion and IVF and could lead to the criminalization of women who legally terminate pregnancies or engage in behavior that is “harmful to the fetus,” without any clear criteria as to what constitutes harm.[5]
Currently, more than a third of states have fetal personhood laws in place, which vary from personhood beginning at the point of fertilization – including frozen embryos – to some point during pregnancy.[6] While Alabama passed legislation protecting IVF providers and patients, many anti-abortion groups are still not satisfied with the language, claiming it “fell short of pro-life expectations.”[7] Anti-abortion groups use Louisiana as a model for fetal personhood legislation, as the state bans the destruction or disposal of IVF embryos.[8] .
How abortion bans and fetal personhood laws are written and enforced raise questions about the value that the anti-abortion movement places on life at different stages and whether the “pro-life” policies they support are doing more harm to the lives they claim to want to protect. Twenty-eight states have restrictions on abortions that range from six weeks to more than twenty-four weeks, and in fourteen of those states, abortion is almost completely banned with limited exceptions.[9] These limited exceptions include language like “[e]xcept to ‘save the life of a pregnant woman in a medical emergency,’” and “[e]xcept when ‘necessary for the preservation of the mother’s life or where the pregnancy was caused by rape’ that was reported to law enforcement.”[10] The limited exceptions and language used in these statutes is evidence of goals that go far beyond protecting “the unborn.” When terminating a pregnancy that is the result of rape is conditional on the assault being reported to law enforcement, the goal no longer seems to be the protection of “unborn innocent life.” The language used in the above statutes supports the idea that the life of a pregnant woman is less valuable than the life of the fetus she carries.
The diminished value placed on pregnant women can also be seen through how these laws are enforced. This is generally where the anti-abortion movement splinters – mainstream anti-abortion advocates oppose criminalizing women for having abortions and instead focus on prosecuting providers, while “abortion abolitionists” support policies that criminalize abortion from conception and seek to hold women who receive abortions responsible for homicide.[11] While the method of enforcement of abortion bans and fetal personhood laws varies within the anti-abortion movement, enforcement nevertheless focuses on criminalization and punishment rather than supporting pregnant women as a way of supporting fetal life.[12]
If the goal of the anti-abortion movement is to “protect innocent human life,” I would argue that policies that support pregnant women achieve the goal more effectively. Evidence of this approach can be seen in a 1993 German court decision, which held that recognizing fetal rights did not require criminalizing abortion early in pregnancy, but rather that the law must balance both women’s and fetal rights including “addressing the reasons that led some to terminate their pregnancies, such as lack of adequate housing or health care.”[13] Unfortunately, anti-abortion advocates are taking the approach of criminalization and punishment, which in large part has resulted in laws that have farther reaching implications than some anti-abortion advocates initially intended, which is evidenced in the LePage decision.
I believe the enforcement of fetal personhood laws poses the greatest challenge for anti-abortion advocates, and that failure is eventually inevitable if the approach continues to be punishing women rather than supporting them. While I am not supportive of the end goal of anti-abortion advocates, I am supportive of a policy approach that values the lives of pregnant women, and provides more effective, longer-term support for the pregnant woman and her eventual child, and better aligns with the purported goals of anti-abortion advocates.
The expanded child tax credit and federal birth grants are examples of such policies. The expanded child tax credit was enacted in the American Rescue Plan and implemented for one year as part of the response to the COVID-19 pandemic.[14] The American Rescue Plan’s expansion of the child tax credit included three important reforms: 1) increasing the benefit from a maximum of $2,000 per child to $3,000 per child for children ages six to seventeen, and $3,600 for children under six; 2) making the credit “fully refundable” meaning parents who previously were not able to receive the full credit because they earned too little received the full value of the credit; and 3) distributing the payments monthly instead of annually.[15] In 2021, the year this expanded policy was in effect, child poverty was reduced by forty-three percent.[16] A federal birth grant is another example of a policy that would do more to support children than criminalizing abortion. While there are several different birth grant proposals, the underlying policy includes providing parents with a grant, delivered either prenatally or at birth, to assist parents with the increased expenses of newborns.[17] Most wealthy, industrialized nations provide some sort of birth grant, and the United States stands out among them because of our lack of support for newborn children and their parents.[18] Models show that the estimated effects of both the expanded child tax credit and a federal birth grant could reduce child poverty by up to forty-two percent.[19]
Ironically, albeit unsurprisingly, many of the lawmakers preventing the enactment of the above policies are the same ones supporting abortion bans without exceptions and fetal personhood laws yet claiming to be “pro-life.” Enforcing abortion bans and fetal personhood laws by punishing pregnant women rather than implementing policies to support them only exposes the hypocrisy of “pro-life” lawmakers and advocates. While I am staunchly against abortion bans and fetal personhood laws, this is the unfortunate reality post-Dobbs, and I believe there is an opportunity for the anti-abortion movement to achieve their goals by supporting policies that are actually “pro-life.”
[1] LePage v. Ctr. for Reprod. Med., No. SC-2022-0515, 2024 WL 656591, at *2, *7 (Ala. Feb. 16, 2024).
[2] Kim Chandler, Warnings of the Impact of Fertility Treatments in Alabama Rush in After Frozen Embryo Ruling, Associated Press (Feb. 21, 2024, 6:57 AM), https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca.
[3] Praveena Somasundaram, Alabama governor signs IVF bill giving patients,pProviders legal cover, Wash. Post (Mar. 7, 2024, 6:04 PM), https://www.washingtonpost.com/nation/2024/03/06/alabama-governor-signs-ivf-bill/.
[4] Roe v. Wade, 410 U.S. 113, 158 (1973).
[5] Jeff Amy, What’s the role of personhood in abortion debate?, Associated Press (July 30, 2022, 1:51 PM), https://apnews.com/article/abortion-us-supreme-court-health-government-and-politics-constitutions-93c27f3132ecc78e913120fe4d6c0977.
[6] Megan Messerly, ‘Scratching their heads’: State lawmakers take a closer look at personhood laws in wake of Alabama ruling, Politico (Feb. 29, 2024, 5:00 AM), https://www.politico.com/news/2024/02/29/states-fetus-personhood-alabama-ivf-00143973.
[7] Id.
[8] Id.
[9] Julia Haines, Where State Abortion Laws Stand Without Roe, U.S. News & World Rep., (Apr. 10, 2024), https://www.usnews.com/news/best-states/articles/a-guide-to-abortion-laws-by-state.
[10] Id.
[11] Elizabeth Dias, Inside the Extreme Effort to Punish Women for Abortion, N.Y. Times, (July 1, 2022), https://www.nytimes.com/2022/07/01/us/abortion-abolitionists.html.
[12] Mary Ziegler, The Endgame in the Battle Over Abortion, Politico Mag. (Mar. 24, 2024, 7:00 AM), https://www.politico.com/news/magazine/2024/03/24/personhood-abortion-legal-fight-00147138.
[13] Id.
[14] Christopher Wimer, et al., The 2021 Child Tax Credit Expansion: Child Poverty Reduction and the Children Formerly Left Behind, 6 Colum. Poverty & Soc. Pol’y Brief 1 (2022).
[15] Id. at 1.
[16] Id.
[17] Christal Hamilton et al., The Case for a Federal Birth Grant: A Plan to Reduce Poverty for Newborns and their Families, 7 Colum. Poverty & Soc. Pol’y Brief 1, 2 (2023).
[18] Id.
[19] Id. at 6.