Paige Gilbert is a Sophomore in the College of Arts and Sciences at Georgetown University, majoring in Government and Justice and Peace Studies.
The Alabama Supreme Court’s February 16, 2024, ruling to consider frozen embryos “children” under state law reflects the unsurprising consequences of the Supreme Court overturning Roe v. Wade (1973)in June 2022 and the next frontier in the debate over reproductive rights.[i]
In 1973, Roe v. Wade struck down a Texas statute that held that a fetus is a “person” entitled to all the protections under the Fourteenth Amendment, including a “right to life.”[ii] Rejecting this argument, the Court ruled that states do not have the right to regulate a woman’s decision to have an abortion “pre-viability,” or before reaching the first trimester of pregnancy, because the provisions of the Fourteenth Amendment do not include the unborn.[iii] Significantly, Roe. v. Wade guaranteed a woman’s right to make decisions about her reproductive health without state interference within the first trimester- 12 weeks.
In June of 2022, Roe was overturned by Dobbs v. Jackson Women’s Health Organization (2022), which opened the gateway for a “legal gray area” concerning the rights of pregnant people.[iv] Dobbs decided that the frameworks of Roe v. Wade and Casey v. Planned Parenthood (1992)were wrong in that the Constitution never conferred a right to abortion, thus revoking all federal standards that permitted abortions up to the point of viability.[v] Beyond warranting the enactment of “trigger bans” to eliminate abortion procedures in thirteen states completely, Dobbs authorized the introduction of “fetal personhood laws” that enable the subjugation of pregnant people’s rights.[vi]
More specifically, the Dobbs ruling granted states the authority to establish laws that assert fetal personhood: “the extension of legal rights of people to a fetus or embryo before viability.”[vii] Consequently, the Alabama Supreme Court ruled on February 16 stating that a fetus, or fertilized egg, is now considered a person under Alabama’s Constitution.[viii] Thus, under the assertion that embryos are now considered children under the law, couples have the legal basis to seek punitive damages for “wrongful death of their child” if a frozen embryo is damaged or destroyed during an in-vitro fertilization (IVF) procedure, where an egg is fertilized by sperm in a fertility clinic.[ix] As a result, three Alabama clinics have paused IVF services, with more expected to follow.[x]
The recent Alabama Supreme Court ruling and the introduction of fetal personhood laws mark the beginning of a new era of restrictions on women’s reproductive health and ability to make health care decisions. Georgia Senator Jordan defined fetal personhood laws as opening up a “Pandora’s box” because of their endless and major implications for pregnant people, such as the potential to classify abortion as murder, criminalize common health care procedures and IUDs, eliminate IVF procedures, and authorize forced medical interventions.[xi] In addition, fetal personhood laws can enable women to face criminal charges for undergoing a cancer screening or “substance abuse treatment” that could potentially pose harm to a fertilized egg.[xii]
Current debates in Georgia exhibit the repercussions of declaring that the “unborn” is entitled to Fourteenth Amendment protection and legal rights as a person. Proceeding this ruling, pending laws in Georgia declare fetuses eligible for child support payments, tax exemptions on the pregnant person’s state income taxes, and to be counted in “population-based determinations”—this would influence state legislative maps and distribution of state money.[xiii] Furthermore, the argument over fetal personhood laws has implications on immigration, questioning whether a pregnant immigrant is entitled to public benefits despite their status as a non-citizen of the U.S. By Georgia’s personhood logic, the fetus is eligible for U.S. citizenship since they are considered a person with full legal rights upon conception. However, State Representative Setzler refuted this by saying that since “federal law” does not authorize the citizenship of immigrant fetuses, neither would Georgia.[xiv]
The post-Dobbs era extends the debate beyond abortion bans onto fetal personhood laws that allow the state to weigh pregnant women’s reproductive autonomy against a fetus’s “right to life.”[xv] Kluchin writes in the Washington Post that if fetal personhood becomes a reality, fetuses will gain more rights than pregnant people, resulting in forced medical interventions against pregnant people’s own will.[xvi] Georgia and Alabama’s recent legislation illustrates the consequences of overruling Roe and how we are approaching a world where abortion regulations are bleeding into individual medical access, public benefits, and even citizenship. It is imperative to recognize that the debate is no longer about regulating abortion procedures but has shifted towards regulating pregnant people’s bodies. Conferring rights on the fetus will erode women’s autonomy, diminishing women’s liberties and rights when it comes to medical treatment and healthcare. As a result, we will experience a societal shift in which a woman’s right to life will be in jeopardy.
[i] Roe v. Wade, 410 U.S. 113 (1973) https://supreme.justia.com/cases/federal/us/410/113/; Kim Chandler, Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling AP News (2024), https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca (last visited Mar 3, 2024).
[ii] Madeleine Carlisle, Fetal personhood laws: What to know after Roe v. Wade Time (2022), https://time.com/6191886/fetal-personhood-laws-roe-abortion/ (last visited Mar 3, 2024).
[iii] Id.
[iv] Dobbs v. Jackson Women’s Health Organization, 597 U.S. (2022). https://supreme.justia.com/cases/federal/us/597/19-1392/
[v] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) https://supreme.justia.com/cases/federal/us/505/833/; Karen Diep Usha Ranji, Key facts on abortion in the United States KFF (2024), https://www.kff.org/womens-health-policy/issue-brief/key-facts-on-abortion-in-the-united-states/?gad_source=1 (last visited Mar 3, 2024).
[vi] Carlisle supra at 2.
[vii] Id.
[viii] Chandler supra at 1.
[ix] The Alabama Supreme Court’s ruling on frozen embryos, Johns Hopkins Bloomberg School of Public Health (2024), https://publichealth.jhu.edu/2024/the-alabama-supreme-courts-ruling-on-frozen-embryos#:~:text=The%20Alabama%20Supreme%20Court%20issued,IVF)%20should%20be%20considered%20children. (last visited Mar 3, 2024).
[x] Id.
[xi] Kate Zernike, Is a fetus a person? an anti-abortion strategy says yes. The New York Times (2022), https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html (last visited Mar 3, 2024).
[xii] Id.
[xiii] Zernike supra at 7.
[xiv] Id.
[xv] Rebecca Kluchin, If courts recognize fetal personhood, women’s rights are curtailed … The Washington Post (2022), https://www.washingtonpost.com/outlook/2022/05/12/if-courts-recognize-fetal-personhood-womens-rights-are-curtailed/ (last visited Mar 4, 2024).
[xvi] Id.
