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Protecting the Unborn: A Legal and Historical Analysis of Fetal Personhood

Samantha Tonini

Edited by Brett Banks, Colin Crawford, and Vedanth Ramabhadran


Women’s rights and the right to an abortion have been a hot topic for decades; however, since the Supreme Court ruling of Dobbs v. Jackson in 2022, which effectively gave states the power to determine the legality of abortion, these fading rights have once again been at the forefront of many Americans’ minds. It is easy to view the fight over abortion as a fight between men and women, but for many people, it is a fight between fetuses and women. It is from this - the narrative that fetuses should be granted the same rights as grown adults - that the idea of fetal personhood comes into play. The narrative that personhood begins at conception is oftentimes the justification used by the pro-life movement. This idea did not start with Dobbs v. Jackson or even with Roe v. Wade in 1973; instead, we see fetal personhood being debated within the courts as far back as the late 1800s. While it has been mainly used in the political arena, fetal personhood has its roots primarily within Christianity, as several Christian groups have fought to defend the legality of fetal personhood and ban abortion. The fight over fetal personhood has long persisted in our American society. It is heavily influenced by religious groups, calling into question whether or not there has been a breach of the Establishment Clause. Furthermore, it puts many families at risk of not ever even being able to have a family, as the fight over fetal personhood has brought about debates of IVF, putting it at risk. 


Early American Laws and Trends

While fetal personhood did not officially make its way up to the Supreme Court until 1885 with McArthur v. Scott, it can be found even in Colonial American laws [1]. The English Common Law heavily influenced many American Colonies, the very laws they would have followed back in England [2]. These laws originated as far back as the 1160s under Henry II, and it is under these laws that abortion was actually deemed legal for a period of time during a pregnancy [3]. It was not until the quickening - a movement of the fetus - first occurred that abortion became illegal [4]. This is because it was believed that it was not until this quickening that fetuses were not yet human [5]. Ironically, this allowed women greater autonomy than many laws in the status quo. This is because fetal movement does not typically occur any sooner than week 14 of pregnancy. With the passing of Dobbs, several states, such as Texas, passed laws banning abortion after week 6 of pregnancy (when a heartbeat can first be detected), meaning that laws from centuries ago genuinely do provide greater abortion access to women [6]. The idea of the quickening in terms of abortion was first written into any form of actual American law in 1821 by the Connecticut General Assembly [7]. While abortions were happening in early America, they were far less common than today, especially amongst married women who would only typically seek out an abortion due to extreme pregnancy pains or complications with a previous pregnancy or birth. Interestingly, it was shortly after the Connecticut law was passed that there was actually a rise in abortion throughout the whole United States, paralleling a drop in fertility rates. Throughout the rest of the 19th century, abortion became more ordinary; in fact, “an 1881 Michigan report based on correspondence with nearly 100 physicians estimated that nearly one-third of Protestant pregnancies ended in abortion” [8]. Of course, these numbers are much lower than today, but abortion was growing in frequency throughout the United States. This concerned many people, especially as fertility rates continued to drop. In 1820, the fertility rate was estimated to be about 6.6 percent, while in 1900, the fertility rate was estimated to be around 3.9 percent [9]. American fertility rates are largely bolstered by immigrants who tend to have larger families than the typical native-born Americans. 

The group with the highest fertility rates, and subsequently the lowest abortion rates, during the 19th century was Catholic immigrants such as the Irish. In his article “Attitudes to Abortion in America, 1800-1973,” John R. Sauer quotes an Irish-American man saying, “ We like large families of children, but American women kill theirs before they are born” [11] This reflects a more significant Catholic phenomenon that will continue to play out throughout American history over the debate of fetal personhood with Catholicism being one of its biggest advocates. Evidence to support fetal personhood can be found in the Bible, which has verses demonstrating life beginning in the womb - “When Elizabeth heard Mary’s greeting, the child leaped in her womb. And Elizabeth was filled with the Holy Spirit. (Luke 1:41)” - and the consequences of shedding innocent blood - “Keep far from a false charge, and do not kill the innocent and those in the right, for I will not acquit the guilty. (Exod. 23:7)” [12] In 1992, with the publishing of the Catechism of the Catholic Church, the Catholic Church affirmed its position regarding abortion, stating that fetal personhood and anti-abortion have been their position from the beginning [13]:


Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed as an end or a means, is gravely contrary to the moral law.


The Catholic Church would become an extreme advocate for fetal personhood during debates over contraceptives in the late 19th and early 20th centuries and then again during debates over the right to an abortion in the late 20th century. To this day, they remain strong proponents of fetal personhood; however, they are now not the only group to collectively and so adamantly proclaim fetal personhood. 


Legal Evolution at the Supreme Court

As previously stated, the first major Supreme Court case regarding fetal personhood was McArthur v. Scott in 1885, a case that had nothing to do with abortion or contraceptives or anything of that nature. Instead, it was a case regarding a will and how it would be distributed. 

Thomas Scott died on May 12, 1839, leaving behind his last will and testament, which left everything to his wife, Mary Ann Scott [14]. It stipulates that if she were to die before him or before the estate is finalized, then his belongings were to be divided amongst his living children and his grandchildren [15]. Mary Ann Scott passed away shortly after her husband and before the estate was settled in childbirth. When Thomas passed, Mary Ann was pregnant with their sixth child; this brought into question whether the newest and youngest Scott child should be considered in the division of property and wealth as stated in the will [16]. The case was taken all the way up to the Supreme Court by William McArthur, the executor of the estate, to determine the rights of inheritance of the unborn child [17]. 

In the end, the court ruled that as long as the child was born alive, they were as entitled to the inheritance as the rest of the Scott children, seeing how the child had been conceived before Thomas Scott’s passing [18] [19].


The unborn child in the womb is, in contemplation of law, born for many purposes. It is capable of having a legacy or a surrender of a copyhold estate made to it; it may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take under that limitation, whenever it is born. And in the event of its being born dead, the limitation is void, and the remainder, if any, goes over.


This ruling was a landmark case in declaring the legal personhood and rights of fetuses. It would be the first of many Supreme Court cases to decide the limitations and the legitimacy of fetal personhood. 

Abortion and fetal personhood would continue to be a topic of debate throughout the 1900s, but war and economic hardship caused questions regarding reproductive rights to be put on the shelf. The Supreme Court cases that did relate to reproductive rights in the early 20th century centered more around contraceptives and sterilization. These cases included Buck v. Bell in 1927, which ruled for involuntary sterilization of the “feebleminded” or “unfit,” and United States v. One Package of Japanese Pessaries in 1936, where the Supreme Court stated that contraceptives could be distributed through the mail if prescribed by a doctor to a married woman [20][21]; this had previously been illegal due to the Comstock Act which was passed in 1873 and limited the distribution of pornographic material, contraceptives, and access to abortion [22]. This trend even continued into the later 1900s with Griswold v. Connecticut in 1965, which once again dealt with the legality of contraceptives due to the Comstock Act. In this case, Estelle Griswold, the executive director of Planned Parenthood of Connecticut, and Dr. C. Lee Buxton, a professor at Yale Medical School, were arrested and tried for the illegal distribution of contraceptives to married couples [23]. The two were found guilty, and they appealed, claiming that the Connecticut Comstock Act violated the right to privacy [24]. The majority ruled in favor of martial privacy and the right to contraceptives, with Justice William O. Douglas stating… [25] 


Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. 


Interestingly, in the majority’s statement, Justice Douglas appeared to be at least somewhat aware of the religious forces involved in this case. While he does not directly address the religious groups that had been organizing to fight against contraceptives and abortion and fight for fetal personhood, he does appear to try to appeal to them by recognizing the sanctity of marriage.

The next major Supreme Court case to directly deal with fetal personhood was the famous Roe v. Wade in 1973. Here, Norma McCorvey filed a lawsuit under the pseudonym Jane Roe against the state of Texas due to laws that restricted her ability to terminate an unwanted pregnancy and argued that the law violated her right to privacy as established in Griswold v. Connecticut [26]. The court ultimately agreed in a 7-2 case and essentially made abortions legal nationwide [27]. However, the court does address the idea of fetal personhood in abortion restrictions outlined in the majority statement written by Justice Harry Blackmun. He explains that abortions could be limited during the third trimester since the fetus could potentially survive outside the womb at this stage and could be treated as a living person [28]. He states… [29]


With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ points at viability. This is because the fetus then presumably has the capability of meaningful life outside the mother’s womb. 


Justice Blackmun directly goes against the idea of fetal personhood from the moment of conception, hence why he states that states must allow abortions at least during the first trimester. In the dissent, Justice Bryon White fights against this, believing that there is nothing explicitly in the Constitution that gives the federal government the power to make this decision, and it should be left to the discretion of the states to determine the legality of abortion. He even refers to “competing factors” that this decision is impacting. 


The Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the standard implies. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes [29]. 


Organizations for Fetal Personhood

An important factor during these court cases throughout the 19th and 20th centuries was the rising presence of different organizations for fetal personhood, many of which had some sort of Christian ties. These pro-life organizations greatly concerned themselves with litigation, legislative lobbying, and public advocacy. Their role and influence are critical in understanding the evolution of the idea of fetal personhood in America. 

While organizations solely dedicated to the protection of fetal personhood did not begin to form till the late 1900s, there were several groups before these that, while it may not have been their primary goal or focus, were still strong advocates for pro-life. Two of these early groups were the Catholic Women’s League (est. 1906) and the National Federation of Catholic Physicians’ Guild (est. 1909). The Catholic Women’s League was established to teach and promote Catholic social and moral teachings, including teachings against abortion due to the sanctity of life, as previously discussed [30]. They advocated for the sanctity of life from conception to natural death. Similarly, the National Federation of Catholic Physicians’ Guild was composed of Catholic medical professionals who sought to promote Catholic teachings within the medical field, including teachings against abortion, for the same reason as the Catholic Women’s League [31]. Both of these groups were highly active in promoting their ideas against abortion and fetal personhood, both to legislators and to the general American population. 

One of the first significant organizations where protecting fetal personhood was the primary goal appeared in 1968 with the National Right to Life Committee. It was formed with “the support of religious leaders who saw the need for an organization singularly focused on advocating for the protection of human life” [32]. While the previously mentioned organizations were formally aligned with a religion, the National Right to Life Committee was not, but it was still strongly tied to the Christian faith. This group prides itself in “moving the needle of public opinion” towards pro-life and fetal personhood and played a role in the passing of several anti-abortion laws in the early 21st century, including The Partial-Birth Abortion Ban Act in 2003 [33]. They also credit themselves for helping overturn the Pain-Capable Unborn Child Protection Act in 2010 [34]. Another organization formed to defend fetal personhood is Americans United for Life (est. 1971). Founded as a public interest law firm, the AUL focuses primarily on working with lawmakers to ensure the “human right to life,” once again believing that life starts at conception [35]. Both of these organizations and many other pro-life groups have strong religious ties and have based their argument for fetal personhood on religious text. This strong tie between the belief in fetal personhood and religion is still present today, with about 66% of pro-life supporters reporting going to church weekly in 2023 compared to just 28% of pro-choice supporters [36].


Fetal Personhood Today

As many people know, fetal personhood and abortion continue to be a hot topic in American politics to this day. Much of this revolves around the recent passing of Dobbs v Jackson Women’s Health Organization in 2022. The case revolves around the passing of Mississippi’s Gestational Age Act, which banned abortions after 15 weeks [37]. The Jackson Women’s Health Organization sued, claiming the law was unconstitutional. In a 6-3 ruling, the Supreme Court sided with Mississippi and overturned the precedent established in Roe v Wade, which made abortion a national issue and instead gave power back to the states to determine its legality [38]. This case caused an outcry from many Americans and sent America into what has been called a “Post-Roe World.”

In this Post-Roe World, the belief of fetal personhood has only continued to be legalized and supported. Now, the idea of fetal personhood is being pushed beyond just the womb to include embryos formed through IVF treatments. This question was recently brought before the Alabama Supreme Court through a lawsuit between three couples and a fertility clinic [39]. These three couples had all used the clinic to aid them in their journeys of becoming pregnant, which, in the end, all three couples were successful in achieving. As often is the case with IVF, several additional embryos were created, not used, and to be cyro-preserved. That was until these embryos were accidentally removed, dropped, and subsequently destroyed. The couples sued the fertility clinic under the Wrongful Death of a Minor Act, claiming that these embryos deserved the title of children and that the fertility clinic should be punished as such [40]. At trial court, the judge threw out the case on the basis that embryos in vitro did not classify as children. The case was appealed to the Alabama Supreme Court, which ruled in favor of the couples, stating that the Wrongful Death of a Minor Act applied “to all unborn children without limitation. And that includes unborn children who are not located in utero at the time they are killed,” expanding legal fetal personhood to frozen embryos [41]. 

In light of this ruling, 2 out of the 8 fertility clinics throughout Alabama stopped their IVF treatments out of fear of being now liable for the death of a child, as it is very possible to accidentally damage or destroy embryos during the IVF procedure as they thaw and are transferred to the uterus [42]. It is unclear what the consequence would be for these fertility clinics in these cases, leaving hundreds of families struggling with infertility throughout Alabama unable to conceive. 


Conclusion

Fetal personhood has been debated throughout much of American history. We have often seen the federal government and legal framework shift between the rights of the fetus and the right of privacy and bodily autonomy for women. In light of the recent Dobbs ruling, we are seeing at least parts of America shift dramatically towards the fetal personhood end of the spectrum. This extreme shift is now beginning to have the unintended consequence of not only forcing unwanted pregnancies but also halting wanted pregnancies that require medical intervention. If we continue to see similar rulings for the legal fetal personhood in vitro, there is a strong possibility that even more fertility clinics across the country will be forced to halt their IVF treatments, which have been becoming increasingly popular in recent years for couples unable to reproduce on their own. In confronting the complexities of fetal personhood, we stand at a critical juncture where the balance between legal rights and ethical considerations must be delicately preserved, lest the unintended consequences of our legal decisions hinder the very fabric of reproductive healthcare and family planning for generations to come.

 

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