Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act, as the law is called, subjects a doctor who performs an abortion to as many as 99 years in prison. The law, enacted Wednesday, has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.”
We ought to take our laws seriously. Under the laws, people have all sorts of rights and protections. When a state grants full personhood to a fetus, should they not apply equally?
For example, should child support start at conception? Every state permits the custodial parent – who has primary physical custody of the child and is primarily responsible for his or her day-to-day care – to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person – at conception in Alabama, six weeks in states that declare personhood at a fetal heartbeat, eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.
And what about deportation? Can a pregnant immigrant who conceived her child in the United States be expelled? Because doing so would require deporting a U.S. citizen. To determine the citizenship of a fetal person requires examination of Section 1 of the 14th Amendment, which declares, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The word “born” was not defined by the drafters. Presumably, they intended the standard dictionary definition: brought forth by birth. Our dates of birth are traditionally when our lives begin; we do not celebrate our dates of conception or the date of our sixth week in utero. But in states with abortion bans, “born” takes on new meaning. Now legislatures assign an arbitrary time during gestation to indicate when life, personhood and, presumably, the rights that accompany these statuses take hold. This grant of natural personhood at a point before birth brings application of the 14th Amendment into question and may thus give a fetus citizenship rights – but only in those states. There are no laws that allow the United States to deny citizenship rights to a natural-born citizen merely because they reside with, or in, a noncitizen.
Detaining any person without arraignment or trial violates the Constitution and international human rights laws. A fetus has not committed a crime, not been arraigned or charged, not weathered a trial by a jury of its peers, not had the opportunity to confront its accuser. These laws redefining personhood surely mean that a pregnant woman cannot be incarcerated, as doing so requires confining a second person without due process.
If personhood begins in utero, a fetus will need a name and a Social Security number to begin exercising private rights and using public resources. A Social Security number is necessary to claim a child on taxes. It is also a requirement to act on behalf of a child privately, like opening a bank account, buying savings bonds or obtaining insurance coverage. Typically, parents apply for a Social Security number when they obtain a birth certificate, but if states declare that personhood begins at some earlier arbitrary point in time, they will need to provide evidence, perhaps through a life certificate, that this new person exists and resides in their state. Once the life is established, can a mother insure a six-week fetus and collect if she miscarries? Will the tax code be adjusted in these states to allow parents to claim their unborn children as dependents at conception? If so, can a woman who suffers more than one miscarriage in a fiscal year claim all of her children?
Article I, Section 2 of the Constitution requires a census every 10 years to count all persons residing within the United States. If a fetus is granted personhood, it should be included in the count. The census currently asks about the age and date of birth of each household resident. Will it now include the date of conception in select states so that fetuses may be counted? In those states, there is the potential to unfairly skew census data and disproportionately apportion representatives and resources to those states.
These questions highlight the unintended and potentially absurd consequences of sweeping abortion bans. At the heart of the issue is how the 14th Amendment’s definitions of personhood and citizenship should be applied. States have been allowed to define the personhood of unnatural creatures – such as corporations – since very early in our nation’s history. In exchange for this freedom, states are not permitted to go back on their deal. In other words, once personhood rights are granted, a state may not deny life, liberty or property without due process, nor may a state deny equal protection under the law. States have never had the right to define the personhood of people. This was a subject – influenced either by place of birth or by complying with immigration and naturalization requirements – for the Constitution and federal law. State grants of natural personhood challenge this norm.
When states define natural personhood with the goal of overturning Roe v. Wade, they are inadvertently creating a system with two-tiered fetal citizenship. This is because Roe and Planned Parenthood v. Casey create a federal floor for access to the right to choose – a rule that some ability to abort a fetus exists in the United States. If these cases are overturned, that eliminates only the federal right to abortion access. Overturning Roe would not prohibit a state from continuing to allow access. In a post-Roe world, in states like New York that ensure the right to choose through their constitutions and statutes, citizenship will begin at birth. In states that move the line to define life as beginning as early as conception, personhood and citizenship will begin as soon as a woman knows she is pregnant.
Trying to define citizenship and personhood based on the laws of each state creates some far-fetched and even ridiculous scenarios. If we follow that logic, we’ll tie our Constitution into a knot no court can untangle.
Carliss Chatman, an assistant professor at Washington and Lee University School of Law, studies corporate personhood, corporate governance and ethics, among other legal topics.
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