Wednesday, June 29, 2022
After Dobbs, Are Rights for Zygotes, Embryos and Fetuses Next? by Cynthia Soohoo (June 29, 2022)
Justice Alito’s decision overturning Roe v. Wade and Planned Parenthood v. Casey marks a watershed shift in the way that the country treats people who are pregnant versus an “unborn life.” By stripping constitutional protection from the decision to have an abortion, Dobbs v. Jackson Women’s Health Organization equates pregnant people’s right to control their bodies and the state’s interest in protecting prenatal life.
Without a recognized constitutional right to abortion as a backstop, Dobbs specifically paves the way for states to impose their theory of when a human life begins and push for recognition of personhood for fetuses, embryos, and zygotes. Not only will this result in some states banning abortion from conception and treating abortion as homicide, it also threatens some forms of contraception and in vitro fertilization (IVF).
One recurring theme in Alito’s majority opinion and Justice Kavanaugh’s concurrence is that there are “two sides” with strong views on abortion. The argument goes that because there are strong opposing opinions on abortion, the issue should be left “to the people and their elected representatives” with individual states (or Congress) determining how to value prenatal life verses the rights of pregnant people. While there is superficial appeal to the “two sides” argument, it improperly equates one group’s beliefs about when human life begins with the concrete harms imposed on pregnant people.
It also obscures the real issue. We don’t all get a vote on what happens to someone else’s body. As Justices Breyer, Kagan, and Sotomayor write in the joint dissent, “when it comes to rights, the Court does not act ‘neutrally’ when it leaves everything up to the States. Rather the Court acts neutrally when it protects the right against all comers.”
Cleverly cloaked in originalist arguments and claims about democracy and judicial neutrality, at bottom, the Dobbs decision is about the expansion of state power and control. Alito admits as much when he criticizes Roe and Casey for allowing “States less freedom to regulate abortion” than in other countries. (emphasis added). Alito’s opinion gives states enormous power to use a belief about when human life begins to take dominion over a person’s body, forcing them to endure a pregnancy, give birth, and become a parent.
The Disappearing Rights and Shrinking Personhood of Pregnant People
Recognizing the fundamental liberty at stake in the abortion decision, the Supreme Court explicitly rejected the “two sides” argument 30 years ago in Planned Parenthood v. Casey. In doing so, the Court carefully considered how to balance the state’s interest in protecting prenatal life and the individual liberty and autonomy rights at risk. While the Court eliminated the trimester framework established in Roe, giving states more power to regulate abortion to protect fetal life, Casey emphasized that a pregnant person must retain the ultimate decision of whether or not to continue a pregnancy. Until the Dobbs decision, this meant a state could not ban abortion outright or impose regulations that impose an undue burden prior to fetal viability.
To justify scrapping Casey’s careful balancing of individual rights with government interests, Alito’s opinion scrupulously avoids any serious discussion of the rights of pregnant people or the implications of allowing the government to impose forced pregnancy. Instead of recognizing that allowing states to ban abortion imposes a real and substantial harm, Justice Alito downgrades the fact of a state’s invasion of a pregnant person’s liberty and autonomy to a “feeling” that “regulation of abortion invades a woman’s right to control her own body, and prevents women from achieving full equality.” He then suggests that this “feeling” is on par with the fervent belief “that a human person comes into being at conception and that abortion ends an innocent life.”
Alito also refuses to acknowledge that reproductive autonomy is a basic and fundamental liberty for people with the capacity to become pregnant. Rather than engaging in an honest discussion of what personal liberty requires for a body with a uterus, Alito hides behind a historic reading of the Fourteenth Amendment based on state laws that were passed in the 1860s when women could not vote and were not viewed as persons fully protected by the Constitution.
Paving the Way for Personhood for Zygotes, Embryos, and Fetuses
Even as Dobbs demotes people who can become pregnant from the status of full rights holders, it paves the way for states to promote the rights of zygotes, embryos, and fetuses at the expense of people who will be forced to carry them. (A zygote is a fertilized egg. It becomes an embryo10-12 days after fertilization and a fetus eight weeks after fertilization.) In 1973, Roe explicitly rejected Texas’ argument that the Constitution recognizes the unborn as a “person” with rights protected under the Fourteenth Amendment.
However, as argued in many of the amicus briefs submitted to the Court in Dobbs, constitutionally prohibiting abortion through the recognition of personhood for zygotes, embryos, and fetuses remains a long-term goal for the anti-abortion movement. Alito’s decision will likely encourage these arguments in courts and legislatures.
While the Dobbs decision declines to directly take on the personhood issue, religious and moral views about the status of zygotes, embryos and fetuses creep into the decision’s language and reasoning. Rather than discussing the state’s interest in potential life like past Supreme Court decisions, Justice Alito explicitly imports Mississippi’s belief that a fetus is a human being into the decision’s reasoning. He argues that abortion is different from other constitutionally protected decisions around intimate sexual relations, contraception and marriage, because abortion is a “critical moral question” that involves destroying what the statute describes as “an unborn human being.”
Alito even chides the dissent for imposing their “theory about when the rights of personhood begin” for adhering to the Roe and Casey standard. Alito’s criticism reveals his own assumptions about fetal life as he bemoans that under the Roe/Casey standard, states were prohibited from recognizing a fetus’ “most basic human right – to live” prior to viability. (emphasis added).
For now, Alito claims that the Dobbs decision “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” But even absent the Court’s explicit recognition of rights for prenatal life, Dobbs opens the door for states to do so without constitutional restraints. Roe recognized that there are widely divergent views on when life begins and held that the state cannot “adopt one theory of life [and] override the rights of the pregnant woman.” In order to prevent this outcome, Roe and Casey explicitly declined to adopt a theory of when life begins, but recognized fetal viability as the point at which the state’s interest in fetal life rose to the compelling level necessary to justify banning abortions.
This meant that while states could pass laws protecting prenatal life prior to viability,the constitutional rights of pregnant people to liberty and bodily autonomy limited how far the state could go. Now that Dobbs has stripped away this constitutional protection, a state need only show that a law passed to protect prenatal life bears a rational relation to a legitimate state interest to withstand judicial scrutiny. Further, without the viability line, states can bestow heightened protection and rights to prenatal life at any stage without any consideration about the impact on the bodies and lives of the people who carry them.
What Does Personhood for Zygotes, Embryos, and Fetuses Look Like?
The idea that states may seek to promote legal personhood for zygotes, embryos, and fetuses may seem farfetched. But for decades, states have passed laws to protect and, in some cases, bestow rights onto the “unborn” by recognizing them as human beings or even legal persons. These laws are often referred to as fetal personhood provisions, but the term is a misnomer because the provisions go beyond protecting fetuses and typically protect the “unborn” from conception or fertilization. Personhood provisions vary and include legislative findings, policy statements, and definitions for specific statutes, including criminal homicide laws, and general personhood provisions that purport to apply to all laws in the state.
The idea that the zygotes, embryos, and fetuses are independent human beings is often included as a finding or definition in legislation to justify extreme abortion bans. For instance, in 2019, Georgia passed an act that included both a general personhood provision recognizing unborn children defined as “a member of the species Homo sapiens at any stage of development who is carried in the womb” as “natural persons” under Georgia law and a separate provision banning abortion at six weeks. In 2021, Arkansas passed the “Arkansas Unborn Child Protection Act” and in 2019, Alabama passed the “Human Life Protection Act,” both banning abortion from conception.
The laws cited provisions in their state constitutions adopting policies protecting the life (Arkansas) and rights (Alabama) of unborn children and made legislative findings or defined embryos and fetuses as human beings. Because these laws clearly violated the constitution, they were quickly blocked by the courts and never went into effect. Immediately after the Dobbs decision, a federal court granted an emergency motion dissolving the injunction stalling the Alabama law. Similar motions will likely follow in Arkansas and Georgia.
If we want to understand what laws might look like now that legislatures no longer have to comply with Roe, the abortion bans passed by Alabama and Arkansas, as well as similar bans recently passed by Oklahoma and Louisiana, provide good examples. These laws ban abortion at conception and do not include any exceptions for pregnancies that result from rape or incest.
These measures reflect an absolutist view that embryos and fetuses are human beings that must be protected irrespective of the impact on the people who carry them. International human rights bodies have recognized that forcing a person to continue a pregnancy in such circumstances constitutes cruel, inhuman and degrading treatment. Perhaps reflecting the view that zygotes, embryos, and fetuses are human beings, the laws also impose severe criminal penalties for performing abortions, including sentences ranging from 10 to 99 years and criminal fines ranging from $100,000-200,000.
In addition to explicit criminal abortion bans that will either be triggered, passed, or no longer enjoined now that Roe has been overturned, personhood provisions that already exist in the laws of many states will no longer be limited by constitutional protections for abortion. Many state criminal statutes already define homicide victims to include zygotes, embryos, and fetuses. Dobbs potentially authorizes the use of these criminal homicide statutes to prosecute people who perform abortions.
It is not just abortion that is under threat. As pointed out by the joint dissent, Alito’s cramped, backward-looking reading of liberty places constitutional protection for contraception and same-sex marriage squarely at risk. Justice Thomas explicitly invites reconsideration of Griswold, Lawrence and Obergefell in his concurrence. But even absent further unravelling of constitutional precedents, the Dobbs decision opens the door for attempts to ban forms of contraception that may prevent implantation of a fertilized egg based on embryonic personhood claims. Laws banning or limiting IVF to prevent the creation of embryos that are not implanted will also become more prevalent.
Since 1973, Roe v. Wade prevented the state from imposing its views about the value of prenatal life and the role of women in society on individuals. While Casey expanded states’ ability to regulate abortion, it recognized that prior to fetal viability the state’s interest in prenatal life cannot override “the urgent claims of the woman to retain the ultimate control over her destiny and her body.”
Together, Roe and Casey placed important limits on state power. By stripping away constitutional protection for abortion and erasing the viability line, Dobbs v. Jackson resets the constitutional balance between pregnant people and the claims that the state can make on their bodies on behalf of prenatal life. In doing so, it opens the door for zygotes, embryos, and fetuses to gain rights even as pregnant people lose them.
Cynthia Soohoo is a Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law