In a new article published by the University of Iowa, Legal Voice staff reveal the process behind a quiet — and effective — strategy used by anti-abortion extremists.
“Legal fetal personhood” is a dangerous concept that gives fetuses — and even fertilized eggs — all the rights of people who have been born.
Because the concept of fetal personhood is extreme, its advocates have learned not to argue for it directly. Instead, they engage in “fetal personhood creep” — a covert, incremental, state-based approach to changing the law.
To uncover exactly how this strategy works, Legal Voice Senior Reproductive Justice Counsel Wendy Heipt partnered with former Legal Voice contract attorney Julia Littell. Through their research, they identified four kinds of laws that have gradually advanced fetal personhood:
1. Laws to “Protect” Pregnant People: These laws increase penalties for crimes committed against a pregnant person or crimes that result in pregnancy loss. The goal here is not to protect pregnant people, but to establish the fetus as a separate victim.
2. Laws That Hold Pregnant People Responsible for Pregnancy Outcomes: These laws hold pregnant people responsible for fetal ailments, pregnancy loss, and even behaviors that could have harmed their pregnancies. Altogether, they set the stage for increased behavioral control of pregnant people. In many states, these efforts usually start by penalizing pregnant people who use drugs.
3. Laws Acknowledging Pregnancy Loss as Child Loss: Another common practice is to make death certificates available whenever a pregnancy ends. By establishing that miscarriages and abortions are “people enough” for a death certificate, it becomes easier to argue that they are “people enough” for other purposes.
4. Laws Targeting the Reproductive Rights of Minors: By first making it acceptable to place restrictions on youth, these laws set the stage for broader restrictions in the future.
Ultimately, these four kinds of laws set the stage for attempts to directly establish fetal personhood. Once in place, these laws have serious consequences. The logical outcome is a world where no pregnant person is in charge of any aspect of their pregnancy or their lives.
To learn more about how fetal personhood creep has been deployed, read Heipt and Littell’s new article in “The Journal of Gender, Race and Justice” at the University of Iowa College of Law.
