In an August 31 article, National Review’s David French claimed pro-choice advocates support a “selective application of science” and suggested that science actually warrants recognition and protection of a so-called fetal personhood standard.
French’s argument has been a favorite of right-wing media. But taking the ideological stance that the concept of fetal personhood is based on credible science -- while pro-choice arguments aren’t -- ignores medical experts, legal precedents, and the material consequences such a measure would have.
To establish this argument, the National Review criticized a recent New York Times op-ed by a medical professional that called for laws that regulate abortion to be “based on the best available science.” The op-ed was authored by Ushma D. Upadhyay, an associate professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco. Upadhyay also co-authored a recent study of the effects of a 2011 Ohio law that required patients to use an outdated protocol for medication abortions. In her August 30 op-ed, Upadhyay called for those pushing abortion restrictions to quit claiming such laws “protect women’s health and safety” without any “scientific research that evaluates these laws’ actual effects on women and their health.”
According to the National Review, however, Upadhyay’s argument that any abortion restrictions should be science-based is actually part of the left's “hocus pocus” that ignores the point that “from the moment of conception, a separate human being exists.” The article argued that the pro-choice community “can’t handle the reality of a human fetus, so it waves a magic wand and says that the child may be ‘human,’ but it’s not a ‘person.’” Furthermore, French accused Upadhyay and other medical professionals who support abortion access of engaging in “garbage thinking” by “refusing to grapple even for a moment with the single-most important scientific issue in the entire abortion debate, the humanity of the fetus.”
But pro-choice advocates and doctors like Upadhyay do not deny, or refuse to “grapple” with, the science of human fetuses. What’s really at issue are the cultural and, more importantly, legal ramifications of characterizing a fetus as a “person,” a reality the National Review ignored.
Fetal personhood refers to an extreme anti-choice position that posits an equivalency between fetuses and persons in order to accuse abortion providers or women of committing murder. In a 2015 fact sheet, NARAL defined personhood laws as measures that “typically change a state’s definition of the word ‘person’ to include a fertilized egg, embryo, or fetus, with the intent of outlawing abortion.” Beyond criminalizing abortion, an expanded definition of personhood could also serve to outlaw stem cell research, fertility treatments, and certain forms of contraception.
In his National Review article, French called for a recognition of “the humanity of the fetus” -- promoting the anti-choice argument for redefining personhood to begin at conception. For example, French wrote:
And how does a fetus become a person, pray tell? By applying nothing more and nothing less than the first three rules of real estate: location, location, location. A baby isn’t a real baby, the reality-based community [pro-choice supporters] says, when it’s inside the mother. It’s only when it moves about 18 inches that it actually becomes a person. In other words, take the identical human organism, move it less than two feet outside of the mother, and voilà! A real-live person exists.
Calling this thinking “hocus-pocus” is too charitable. It’s murderous metaphysical mumbo jumbo. There is nothing scientific about it. It’s philosophically incoherent. It’s garbage thinking.
Medical institutions and experts have rejected the arguments promoted to support fetal personhood claims. For example, in 2012, the American Congress of Obstetricians and Gynecologists (ACOG) denounced personhood measures on the basis that they “substitute ideology for science and represent a grave threat to women’s health and reproductive rights”:
ACOG firmly believes that science must be at the core of public health policies and medical decision-making that affect the health and life of women.
Like Mississippi's failed “Personhood Amendment” Proposition 26, these misleading and ambiguously worded “personhood” measures substitute ideology for science and represent a grave threat to women's health and reproductive rights that, if passed, would have long-term negative outcomes for our patients, their families, and society. Although the individual wording in these proposed measures varies from state to state, they all attempt to give full legal rights to a fertilized egg by defining “personhood” from the moment of fertilization, before conception (ie, pregnancy/ implantation) has occurred. This would have wide-reaching harmful implications for the practice of medicine and on women's access to contraception, fertility treatments, pregnancy termination, and other essential medical procedures.
Legal precedent has also established that the concept of fetal personhood is unconstitutional. As Rewire’s Imani Gandy noted, “At the outset, states cannot grant fetuses rights that infringe women’s constitutional privacy rights. That’s Supremacy Clause 101.” The Supreme Court also explicitly rejected fetal personhood when in Roe v. Wade the court found that “the unborn have never been recognized in the law as persons in the whole sense.”
Expanding the legal definition of personhood to begin at conception, or even fertilization, could have wide-reaching and negative consequences.
In a briefing paper, the Center for Reproductive Rights explained that “because so many laws use the terms ‘persons’ or ‘people,’ a prenatal personhood measure could affect large numbers of a state’s laws, changing the application of thousands of laws and resulting in unforeseeable, unintended, and absurd consequences.” Already, women have been prosecuted for having miscarriages and stillbirths and for attempting to self-abort.
For example, in December 2015, Anna Yocca was arrested in Tennessee for attempted first-degree murder after she tried to self-induce an abortion. According to Rewire, Yocca’s legal battle “opens the constitutional question of whether or not general homicide laws" are applicable in the case of self-induced abortions, and it will likely serve as “a test case for anti-choice prosecutors who want to find a legal hook to charge women who abort with murder.” Vox added that Yocca’s case had “horrifying implications for all pregnant women, even those who don't want an abortion” by giving the government too much control over women's individual pregnancies.
In July, an Indiana court overturned the conviction of Purvi Patel, who was originally sentenced to 20 years in prison for “feticide and felony neglect” after a self-induced abortion. According to NBC’s Irin Carmon, the judges rebuked the basis for Patel’s conviction as improper, writing that “the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions.”
These cases demonstrate merely a fraction of the potential consequences of an expanded definition of personhood. The National Review claimed that pro-choice advocates haven’t grappled with the implications of their support for abortion access, but it is the National Review that has failed to acknowledge the effects of their claims. The sheer number of medical and legal objections to fetal personhood underscores the importance of what Upadhyay wrote: that without sound scientific evidence, “Claims that abortion laws will protect women’s health and safety are just that -- claims. … When policy is not based on science, American women pay the price.”