In 1973 the U.S. Supreme Court decided Roe v. Wade and established the constitutional right to abortion, prompting two archconservative members of Congress to propose the Hogan-Helms Amendment* to the U.S. Constitution to define personhood as beginning at conception.
In 1974 Harriet Pilpel, a pioneering women’s rights lawyer focused on contraception and abortion rights, published an article titled “The Fetus as Person: Possible Legal Consequences of the Hogan-Helms Amendment.” She wrote:
"The legal consequences of such an amendment would go far beyond abortion, and create confusion, if not chaos, in numerous areas of well established law.”
Pilpel questioned how a personhood amendment would impact everything from the census to tax law to all aspects of medical care. Would physicians deny child-bearing age women and girls essential reproduction-related medical care for fear of losing their licenses and going to jail? Her article read like a law professor’s worst parade of horribles, but in 1974 these “potential legal consequences” were an abstraction, a thought experiment. In 2022, with the overruling of Roe v. Wade, they are reality, as states pass their own statutes with indifference to the complexities of pregnancy and a wide range of civil and criminal laws.
Individual states' responses to Pilpel's questions are being answered in the headlines every day. Below we highlight a few of these questions, with links to articles that consider these issues at length.
“[Might doctors] be reluctant to use their best medical judgment to utilize a life-saving medical procedure on a woman, if it could have the ancillary effect of causing a miscarriage in possible violation of rights of the fetus?”
In the few months since the U.S. Supreme Court's June 24, 2022 decision in Dobbs v. Jackson Women's Health Organization struck down the constitutional right to abortion there have already been multiple cases of doctors delaying, or outright denying, essential abortion care because the fetus still had a heartbeat, even when the pregnancy could not be viably carried to term. Although some states’ abortion bans have exceptions for the mother’s life, the language in these exceptions is so imprecise that doctors and hospital staff are confused as to what is and is not permitted under the law. Pregnant patients are being forced to wait until the complications from their condition are deemed critical enough for a doctor to perform an abortion without liability. Pregnant patients are faced with either traveling, sometimes hundred of miles away, to a state that allows abortion, or risking their health and life to wait long enough for a doctor, or sometimes a panel of doctors and attorneys, to decide that their condition is sufficiently critical to their life as to make an abortion permissible.
Some abortion-ban states do not have exceptions for rape and incest and many anti-choice advocates are pushing for a no-exception model everywhere. Even where these exceptions do exist, the doctor providing care risks prosecution, as in the case of the Indiana physician who provided legal abortion care to a 10-year-old rape victim.
It is not only pregnant patients whose health and lives are being threatened by the new abortion restrictions and bans. Doctors in these states are so fearful of prescribing medications that can induce abortion that they are refusing to prescribe them for non-pregnant patients with illnesses like cancer, rheumatoid arthritis, and lupus, for whom they are essential. Women in states like Tennessee and Texas who are not pregnant have been denied medication, like the anti-inflammatory drug methotrexate that is prescribed for arthritis and lupus patients, because they are of reproductive age and could become pregnant.
“[W]ould the fetus be considered a dependent for tax purposes, whether it is born or not?”
“[W]ould every fetus (if not every fertilized ovum) have to be counted in the census as called for by the Constitution?"
Georgia recently passed the Living Infants Fairness and Equality (LIFE) Act that prohibits abortion after six weeks from presumed conception and defines the fetus as a person. Georgia residents may now claim a fetus with a detectable heartbeat as a dependent, worth a $3,000 tax credit, months before they are even born. There are no instructions for what a family is required to do if they claim the fetus as a dependent and eventually miscarry. This law also allows for fetuses to be counted in the U.S. census. The impossibility of an accurate count of the in utero population would result in inaccurate and unfair counts for legislative districts and federal formula grants based on population, such as the Violence Against Women Act’s STOP (Services, Training, Officers, and Prosecutors) grants. While Georgia is not the only state pushing for personhood legislation, lawmakers in Georgia declared their intent to bring this law to “the highest court” so that fetal personhood can eventually be included in the U.S. Constitution.
The criminalization of pregnancy behavior and outcomes did not start with the Supreme Court’s decision overruling Roe. Even states like New York that have legislation protecting the right to abortion and providing access to abortion for patients traveling from out-of-state, have practices that criminalize pregnancy outcomes. New York has a documented record of non-consensually drug-testing pregnant patients and reporting the outcomes of those drug tests to child welfare services, putting women at risk of losing custody of their children. This practice is not unique to New York and, in response, Legal Momentum created Drug Testing Pregnant Patients: What You Need to Know to educate pregnant people about their rights while accessing healthcare.
Harriet Pilpel and the women’s rights movement saw almost 50 years ago how the “potential legal consequences” of fetal personhood would play out. What is Legal Momentum doing now that these “potentials” are coming to fruition?
Over the years, Legal Momentum has been involved in various aspects of reproductive justice law, for example suing Operation Rescue for organizing clinic blockades and drafting the Freedom of Access to Clinic Entrances (FACES) Act. Today, Legal Momentum is focused on challenging governmental intrusion into pregnant women’s lives, for example nonconsensual treatment and drug testing while seeking medical care, reporting patients’ decisions during pregnancy and their pregnancy outcomes to law enforcement/child protective services, and traveling to obtain abortion care. We also continue our focus on creating and expanding policies that support pregnant people and their families in maintaining economic stability, privacy and autonomy, including equal pay, paid family leave, and affordable quality child care.
*While the Hogan-Helms Amendment did not pass, the 1973 Helms Amendment to the U.S. Foreign Assistance Act did. It bans the use of federal funds for abortion under any circumstance; there are no exceptions for rape, incest or the life of the mother. The Helms Amendment has hobbled U.S. foreign aid for family planning ever since.
Credit: Harriet Pilpel, “The Fetus as Person: Possible Legal Consequences of the Hogan-Helms Amendment” was originally published by the Guttmacher Institute in Family Planning Perspectives Vol. 6, No. 1 (Winter, 1974), pp. 6-7 (2 pages)