States push for ‘fetal personhood’ bills despite outrage over Alabama’s IVF ruling

Lawmakers in more than a dozen states have considered efforts to give embryos or fetuses legal rights and protections since the start of the year. and at least three states have advanced such “fetal personhood” legislation since February, when an Alabama Supreme Court ruling that frozen embryos were “ectopic children” sparked national outrage.

Alabama’s state legislature responded to the fallout from that ruling — which prompted several of the state’s in vitro fertilization (IVF) providers to halt their work — by passing a bill to limit providers’ ability to offer that treatment to protect. But just hours after the Legislature passed these protections, Republicans in the Iowa statehouse passed a fetal personhood bill that changes state law to criminalize causing the “death of an unborn person.”

An “unborn person,” according to the Iowa bill, is “an individual organism of the species homo sapiens from conception to live birth.” Such a definition would also include frozen embryos, which are eggs fertilized by sperm. If the bill is passed by Republicans who control the Iowa State Senate, it could jeopardize access to IVF in the state. But because the bill’s language is so broad, prosecutors can also try to apply it to a wide range of circumstances. Intentionally causing the “death of an unborn person” through acts such as murder, assault or sexual abuse would be a Class A misdemeanor, punishable by up to life in prison. If you do this unintentionally, it is a class B misdemeanor. The bill even specifies that unintentionally causing “the death of an unborn person during drag racing” would be a Class D felony.

State lawmakers have also recently pushed fetal personhood language into other, less high-profile areas of the law. In early March, the Kentucky state Senate passed a bill to establish the right to claim child support for fetuses; that bill has passed to the state House, which, like the Senate, is dominated by a Republican supermajority.

That same week, the Republican-controlled Utah state legislature sent the governor there a bill that would allow fetuses to sue legally for damages if the fetus’s parent was killed or injured.

“Fetal personhood exists in some form in virtually every state,” says Dana Sussman, deputy executive director of Pregnancy Justice, a interest group that supports people who face criminalization due to their pregnancy. She warned of the far-reaching consequences of such language, even in what may seem limited contexts. “We have to grapple with the implications because if it’s in the law in one area … we see it creeping into other jurisdictions. Judges will say, “Well, in this context it’s a person. So why isn’t it a person in that context?’”

As of 2022, at least eleven states — including Alabama — have what Pregnancy Justice has identified as “an extremely broad personality language that can be read and impact all state laws, civil and criminal.” according to a short by the organization. “These are the ones who really have the power, in their own language, to increase the criminalization of pregnant people, to threaten IVF, to threaten forms of contraception and, of course, to ban abortion,” Sussman said.

Much of the opposition to abortion stems from the belief that life begins at conception, and the fetal personhood movement is a natural outgrowth of the anti-abortion movement. But for decades, Roe v Wade curtailed the movement’s influence, allowing mainstream Republicans to harvest the votes of anti-abortion activists and fetal personhood advocates without having to consider the real-world consequences of their policies. Now that the U.S. Supreme Court has overturned Roe, these seemingly fringe movements are becoming mainstream and the consequences of their policies are becoming real—to the surprise of many Republicans and the outrage of voters.

Fetal personhood has entered contexts that may surprise even those who support it. In Missouri, where there is broad language about fetal personhood, people convicted of child molestation and statutory rape have argued that that language means courts should not base a child victim’s age on their date of birth, but on the date of their conception – making them nine months older.

Mary Ziegler, a professor at the University of California at Davis who studies the legal history of reproduction, said many on the right have never been forced to confront the consequences of the profound impact of fetal personhood.

“That’s really what you see happening in real time,” says Ziegler, who is writing a book about fetal personality. “Republicans and, frankly, even people in the anti-abortion movement have never had to answer these questions before.”

Several of the bills now pending in state lawmakers were originally introduced in 2023 but could still become law, according to the Guttmacher Institute, which shared a review of accounts for the fetusperson at the Guardian. Since the Alabama IVF ruling in mid-February – perhaps the most striking example yet of the practical effects of the language of fetal personality – related Bills have died in Florida, West Virginia and Colorado.

At least 38 states also have “fetal homicide” laws, which stipulate that murder charges can be filed for the loss of a pregnancy. Although the mainstream anti-abortion movement claims it does not want to punish women for their pregnancy outcomes, women in states like California, Indiana and Texas are facing charges of feticide and murder for their own pregnancy losses.

Pregnancy justice has also uncovered more than 600 cases filed between 2006 and 2022 in which people in Alabama faced criminal consequences because of their pregnancies. That’s more than any other state in the country.

In 2018, Alabama became the first state in the country to insert a clause on fetal personhood into the state constitution, after voters backed a measure to recognize “the rights of the unborn child,” including the right to life. The Alabama Supreme Court’s ruling in February cited that clause in the state constitution as justification for its ruling.

For fetal personhood activists, the ultimate goal is to convince the U.S. Supreme Court to hear a fetal personhood case, Ziegler said. Many activists want the court to rule on this the 14th Amendment, with its guarantees of due process and equal protection, covers embryos and fetuses. Such a ruling would establish fetal personhood on a federal scale.

“The idea is to have as many state laws and state orders as possible that say a fetus is a person in different contexts, so it becomes increasingly incongruous that a fetus is not a person in the context of constitutional law. ” said Ziegler. “To say to the court: ‘Don’t you want to harmonize constitutional law with all those other areas of law? Don’t you see how the states are clamoring for this, just as they were clamoring for the overthrow of Roe?”

“It’s part of the very long game,” she said.