What the Hell is Fetal Personhood?

Imani Gandy (0:11)

Hello, fellow law nerds. Welcome back to Baby Boom! Lawyered, the law without the lecture. I'm your host, Imani Gandy, and today I'm opening up Office Hours. I'm going to be answering a listener question from Contessa. She asks, what the hell is fetal personhood? The short answer is that fetal personhood is the legal strategy of turning a fertilized egg, embryo, or fetus into a constitutional rights-bearing person.

But the word, quote, person is doing a lot of work there, because personhood is not just a biological fact. It's also a legal status. And once you understand that, you can understand why the anti-choice movement wants fetal personhood so badly, so badly.

But what is a person? Let's talk about that first. In ordinary conversation, a person is a whole ass, living, breathing, already born person. But legally, that's way more complicated. The law generally recognizes two kinds of people, natural people and artificial people. Artificial people are also called juridical people. J-U-R-I-D-I-C-A-L. There's really no reason for you to know that, but if you're the sort of person who wants to pull juridical out at a cocktail party, now you know what it is. So two kinds of people. Natural persons is the first kind. That's you. That's me. That's human beings who are born and who get constitutional rights just by virtue of being born.

There's this old white dude, William Blackstone. He's an English writer from way, way, way, way back in the day. And the founders treat his writing like scripture. William Blackstone called natural persons the ones, quote, such as the god of nature formed us. And remember, the rights that you get as a natural person can change. Before June 2022, for example, natural persons had a constitutional right to abortion. After June 2022, the Dobbs case, we didn't. Same people, fewer rights. Personhood gets you into the legal system, but it doesn't guarantee which rights you get once you're there. And the law, quite frankly, has an appalling history of deciding which human beings count as persons.

In Dred Scott versus Sanford, the Supreme Court held that Black people could not be citizens under the Constitution.

Enslaved people were obviously human beings, but the law treated them as property and denied them civil and political rights. Now, I am not comparing fetuses to enslaved people. Do not get it twisted. The point is that humanity and legal status are not the same question.

The law decides whose interests it's going to recognize and whose rights it's willing to protect. Juridical people, artificial people, are things that aren't human beings, but the law treats as people for certain purposes anyway. Think about corporations. That's the best example. A corporation can't breathe. It has no feelings. It never needs an abortion or birth control.

But federal law still counts corporations as, quote, persons. You may recall the case Citizens United. In Citizens United, the Supreme Court said, corporations get First Amendment protection when they spend money on politics. Now corporations still can't vote, but for purposes of First Amendment protection, corporations are people, my friend.

So when a court calls something a person, it's deciding which legal rights attach to that person. Biology and science don't really have anything to do with it.

Fetal personhood is also a bit of a trick. It takes the legal machinery and aims it directly at pregnancy. And fetal personhood does not need to give an embryo every right that you have. Nobody is issuing a blastocyst a passport or letting it register to vote.

It only needs to give the embryo one right powerful enough to be used against the pregnant person. And that right is a legally protected right to life. The anti-choice movement's claim is that an embryo is simply another natural person, exactly like the pregnant person carrying it. If that's the case, then abortion stops being a medical decision made by a pregnant person. The state re-frames it as a conflict between two people, the pregnant person and the embryo that the pregnant person is carrying. And then the state gets to a point itself to decide which of those persons wins. And let me tell you, usually the pregnant person is going to be the loser in that battle. Now, fetal personhood affects more than abortion. It also affects IVF, in vitro fertilization. Let's take a look at one particular example. In Alabama, the state supreme court ruled that frozen embryos are children under the state's wrongful death law.

The supreme court called these frozen embryos, quote, extra uterine children. When IVF clinics stopped services because they were afraid that destroying unused embryos would make them liable under the law, the legislature rushed to shield IVF providers and patients from liability because everybody loves IVF, right? But it did not undo the ruling that the embryos were children.