Right-wing media are increasingly and uniformly pushing the "personhood" position in their anti-choice attacks, an absolutist argument that equates fetuses with persons and goes beyond repealing Roe v. Wade to banning all abortions.
As recently as the 2012 presidential campaign, the GOP standard bearer claimed that although he opposed Roe v. Wade, he supported standard exceptions to abortion restrictions, and overturning 40 years of reproductive rights precedent would merely "return to the people and their elected representatives the decisions with regards to this important issue." This so-called moderate Republican position on "limits on abortion" was endorsed by prominent right-wing media figures such as Jennifer Rubin of The Washington Post, who assured her readers that "the GOP isn't waging a 'war on women'; it is waging a war on abortion on demand."
Now that the election is over, Rubin is following the lead of right-wing media and using convicted murderer Kermit Gosnell to attack extremely rare and mostly prohibited late-term abortions, by arguing a “baby is far more than a fetus” or a “a clump of cells” because “there's a lot of science out there that...allows us to save these children.” From Rubin's appearance on the May 13 edition of Fox News' America Live:
We're talking about infants that if they would be operated on, for example, by a surgeon at 24 weeks, would likely survive. As you say, you can take sonogram, you can see them sucking their thumb, they respond to music, there's all sorts of indications that that baby is far more than a fetus, which is the way the pro-abortion lobby likes to refer to it. And I think this makes Americans confront that. The president doesn't want to talk about it. He goes out and talks to Planned Parenthood, and says I'm all with you folks, and those are the people who want abortion on demand for any reason, any place, any time.
I think one of the problems that the abortion lobby is having is the science. They say conservatives don't like science. Well, there's a lot of science out there that not only allows us to save these children but also allows you to see them. And to obtain an indication that this is something far more than just a clump of cells.
In falsely comparing Gosnell's killing of newborns with legal abortion, Rubin is making an important rhetorical shift that is being repeated elsewhere on Fox News. On May 14, Fox News co-host of The Five, Andrea Tantaros, did the same:
[Gosnell's conviction] gives the pro-life movement an argument against the pro-abortion movement, which is they continue to argue, argue, argue in favor of abortion. However, this court just said, you kill a baby outside the womb, it's murder. But what about a baby inside of the womb? That question has to be answered. And I think that this does give the pro-life movement some fuel for their fight.
Both Rubin and Tantaros are utilizing “personhood” arguments by equating fetuses with persons and abortion with murder. This extremist position on reproductive health would ban not only all abortions from conception, it could also criminalize miscarriages, in-vitro fertilization, stem cell research, and certain forms of contraception.
Right-wing media have increasingly embraced this prenatal “personhood” framework, however, and not just on the fringe. In addition to Fox News, James Taranto of The Wall Street Journal has doubled down on his prominent defense of such GOP-backed "life begins at fertilization" legislation. In response to the apparent unconstitutionality of such “personhood” legislation, Taranto countered by dismissing the underlying validity of Roe v. Wade:
The most jaw-dropping example of pro-abortion Orwellianism is the one we cited last week: the fierce objection to the assertion that life begins at fertilization. As we noted, that is a simple statement of scientific fact--a tautology. MediaMutters [sic] responded, in essence, that human embryogenesis is just a theory. The proof was--you guessed it--an appeal to authority, namely the majority opinion in Roe v. Wade:
“The law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.”
Justice Blackmun says it, I believe it, and that settles it!
National Review Online has joined this disdain for the constitutionality of abortion and pushed the “abortion is murder” equivalency even further. In addition to incorrectly framing abortion as the "central purpose" of Planned Parenthood, NRO's Rich Lowry recently condemned abortion because "[i]f it is a baby outside the womb, why not inside the womb? If a procedure to end its life is wrong outside the womb, why isn't it wrong inside the womb?"
But as Taranto at least admitted, Roe v. Wade explicitly rejected the description of abortion that Lowry identifies as “the crux of the matter,” which reduces all abortions to murder in his eyes when he claims “the essence of abortion is that there are two lives when you start and one when you finish.” This is precisely why “personhood” legislation that would bestow those legal rights of persons upon fetuses is patently unconstitutional. By “adopting one theory of life” - such as Lowry's - the Supreme Court has ruled that the state would be impermissibly “overrid[ing] the rights of the pregnant woman that are at stake.”
When the question is presented to voters as to whether they want to override women's reproductive health and autonomy and accord fetuses the same legal protections as persons under the law, explicit “personhood” legislation has been resoundingly unpopular. Nevertheless, the ease with which right-wing media are able to push these rejected arguments after elections may lie in the fact that the full ramifications of “personhood” are only understood under the intense scrutiny of statewide ballot initiatives and referendums. There are stealthier - and more successful - ways to push the “personhood” agenda.
Take, for example, laws that criminalize the murder of fetuses, another topic in the news because of the alleged kidnapping and repeated sexual assault of three missing women in Cleveland, Ohio. Carefully crafted to avoid referring to fetuses as “persons,” laws of this type nevertheless extend homicide in ways that put at risk the legality of abortion. Despite their obvious “personhood” connotations, these “slippery slope” laws are on the books in 38 states. As explained by Lindsay E. Beyerstein of In These Times, their careful drafting can't conceal their innate friction with legalized abortion:
Ohio has redefined “murder” to include the unlawful termination of a pregnancy, but Ohio can only pass laws that are consistent with the U.S. Constitution as interpreted by the Supreme Court. The Supreme Court ruled in Roe v. Wade that a fetus is not a person under the 14th Amendment, and therefore does not have a right to life. Murder is punished severely because the murderer violates the victim's right to life. One might argue that it is therefore disproportionate for Ohio to execute someone for destroying an entity that has no right life of its own. Such a case might also give anti-choice groups a long-awaited opportunity to argue that the proliferation of tough laws against unlawful terminations prove that our society values fetuses as human beings and that our interpretation of the Constitution must change accordingly.
Indeed, right-wing media are already arguing that the “personhood” logic of fetal homicide laws is incompatible with the constitutional rationale for abortion, revealing reproductive autonomy to be a form of "slavery." As reported by Michelle Goldberg of The Daily Beast, these positions may explain how these “personhood” statutes are actually applied:
[L]aws and legal precedents that give fetuses rights separate from those of the women who carry them are regularly used against pregnant women, even those with no intention of aborting. They've been employed to prosecute pregnant drug addicts, alcoholics, and those who refuse medical interventions recommended by doctors. The feminist organization National Advocates for Pregnant Women has identified 413 cases between 1973 and 2005 of women who were arrested, incarcerated, or institutionalized because of harm or threatened harm to their fetuses. “Data showed that state authorities have used post-Roe measures including feticide laws and anti-abortion laws recognizing separate rights for fertilized, eggs, embryos and fetuses as the basis for depriving pregnant women--whether they were seeking to end a pregnancy or go to term--of their physical liberty,” says a report it released in January.
Right-wing media's embrace of “personhood” arguments may be making it into law after all. If Roe is undermined, returning the issue to the states may result in abortions (and other reproductive health measures) being effectively banned far more than is generally realized. That's likely the point, despite official GOP protestations.