Personhood In The Constitution: Does It Include Fetuses?

The debate surrounding the legal status of a fetus as a person has significant implications for reproductive rights and abortion laws. While some argue that a fetus should be granted legal personhood and the associated rights, such as the right to life, others assert that this would infringe upon the rights of the pregnant person. The interpretation of the word person in legal and constitutional contexts is pivotal in shaping abortion policies and reproductive rights. This contentious issue has sparked ongoing discussions and legal battles, with potential impacts on various medical procedures and contraceptive access.

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Roe v. Wade and abortion rights

Roe v. Wade was a 1973 lawsuit that led to the US Supreme Court making a historic ruling on abortion rights. The case was brought by Jane Roe, an unmarried pregnant woman, who, along with a Texas doctor, challenged Texas abortion laws. At the time, abortion was illegal in Texas unless it was done to save the mother's life.

In its 1973 decision, the Supreme Court recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. The Court held that personhood could not be granted to a fetus before "viability", around 24 weeks of pregnancy when a fetus can survive outside the womb. The ruling established a constitutional right to abortion access, and abortion care became legal, more accessible, and safer throughout the country.

The Roe decision also included a discussion of the different views on when life begins. The Court found that it is not up to the states to decide when life begins, and that the Constitution does not define "person" in so many words. The Court did not agree that the Constitution guarantees an absolute right to an abortion, but instead created a framework to balance the state's interests with privacy rights. Applying a trimester framework, Roe permitted more regulation of abortion as pregnancy advanced but only when that regulation was evidence-based and consistent with how other similar medical procedures were treated.

In 2022, the US Supreme Court overturned Roe v. Wade, taking away the constitutional right to abortion. The Court's majority opinion declared that Roe was ""egregiously wrong from the start". The decision has sparked a legal battle over reproductive rights in the United States, with laws that establish fetal personhood being the next frontier.

Fetal personhood and rights

The concept of fetal personhood and rights has been a highly debated topic, particularly in the context of reproductive rights and abortion laws. The question of whether the word "person" in the Constitution includes the unborn has been a subject of legal and ethical discussion.

In the United States, the Supreme Court's landmark decision in Roe v. Wade in 1973 established that the word "person" in the Fourteenth Amendment does not include the unborn. The court ruled that personhood could not be granted to a fetus before "viability," which is typically around 24 weeks of pregnancy when a fetus can survive outside the womb. This ruling established a constitutional right to abortion access, recognizing a woman's fundamental right to choose whether to bear children.

However, the debate around fetal personhood has persisted, and there have been efforts to redefine when a fetus becomes a person. Critics of fetal personhood laws argue that granting legal rights to a fetus could subjugate the rights of the pregnant person, impacting reproductive choices and even access to contraception. On the other hand, supporters of fetal personhood argue that the fetus should be granted legal rights, including the right to life, from the moment of conception or at a certain stage of development.

In recent years, there have been legislative attempts to establish fetal personhood laws, such as the Life at Conception Act introduced in both chambers of the US Congress. These laws seek to extend constitutional "right to life" protections to fetuses and embryos from the moment of fertilization. While these laws primarily focus on abortion restrictions, they could also have implications for other areas, including inheritance rights and social services.

The recognition of fetal personhood has legal, ethical, and social implications. It raises complex questions about the balance between the rights of the fetus and the rights of the pregnant person, particularly in cases of pregnancy resulting from rape or endangering the life of the pregnant woman. While some countries and jurisdictions have granted inheritance rights to fetuses, the majority of international human rights charters do not recognize the fetus as a person for the purposes of human rights.

In conclusion, the debate around fetal personhood and rights remains contentious. While some argue for the legal recognition of the fetus as a person with inherent rights, others emphasize the potential infringement on the rights and autonomy of pregnant individuals. The legal and societal implications of fetal personhood continue to shape the ongoing discourse and legislative efforts surrounding reproductive rights and abortion laws.

State constitutions and federal law

The debate over whether the word "person" in the Constitution applies to fetuses has been a contentious issue, with legal, social, and ethical implications. While the United States Supreme Court's landmark ruling in Roe v. Wade in 1973 established a constitutional right to abortion, it also addressed the question of fetal personhood. The Court determined that the word "person" in the Fourteenth Amendment does not include the unborn, and personhood could not be granted to a fetus before "viability," which is typically around 24 weeks of pregnancy. This ruling affirmed that women have a fundamental right to choose whether to bear children and that abortion was legal under federal law.

However, the debate over fetal personhood has persisted, and state constitutions have played a significant role in this ongoing discussion. Some states have sought to amend their constitutions to define the term "person" to include zygotes, embryos, and fetuses, thereby conferring upon them due process and equal protection rights. For example, the measure amending Section 7 of Article I of the State Constitution extends the definition of "person" to "all living human beings from the beginning of their biological development." This expansion of the term "person" has the potential to conflict with federal court rulings and established abortion rights, creating a complex legal landscape.

The recognition of fetal personhood in state constitutions has significant implications for reproductive rights and abortion laws. If a fetus is legally considered a person, it gains constitutional rights, including the right to life. This could directly challenge the right to abortion, as it would pit the fetus's right to life against the pregnant person's right to bodily autonomy and privacy. The conflict between these rights remains a central issue in the ongoing legal battle over reproductive rights.

Federalism further complicates the legal landscape, as the United States Constitution mandates that federal law takes precedence in cases of conflict between federal and state laws. As a result, even if states define "person" to include fetuses in their constitutions, federal law, such as the right to abortion established in Roe v. Wade, would still prevail. However, the recent overturning of Roe v. Wade in 2022 has removed the constitutional protection for abortion, and states are now free to restrict or ban abortion without violating federal law.

The debate over fetal personhood and the interpretation of "person" in state constitutions and federal law have far-reaching consequences for reproductive rights, abortion access, and the legal status of fetuses. The ongoing legal and social discourse surrounding this issue will continue to shape the landscape of reproductive rights in the United States.

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The woman's right to bodily autonomy

The word "person" in the US Constitution, in the context of due process and equal protection, does not include the unborn. This was decided in the 1973 Roe v. Wade case, where the US Supreme Court ruled that women have the right to terminate a pregnancy before fetal viability. This decision was upheld in 1992.

However, the definition of "person" in the Constitution is still debated. While the California Constitution does not define who is considered a person, a measure was proposed to amend the state Constitution to define a "person" as "all living human beings from the beginning of their biological development as human beings." This would include zygotes, embryos, and fetuses, and confer upon them due process and equal protection rights.

The debate surrounding fetal personhood has significant implications for women's right to bodily autonomy. The recognition of fetal personhood would pit the woman's right to bodily autonomy against the fetus' right to life. This conflict would need to be resolved through further discussion and legal interpretation.

Women's right to bodily autonomy has been a contentious issue for decades, with global protests occurring in response to the overturning of Roe v. Wade in 2022. This decision stripped the constitutional right to bodily autonomy from millions of people, particularly impacting Black, Brown, and low-income communities. The ability for women to control their reproductive health has been recognized as transformative in terms of women's engagement in society, the economy, and politics.

Efforts to promote and protect women's right to bodily autonomy continue, with over 70 countries co-signing a statement at the UN Third Committee expressing their commitment to advancing gender equality and supporting the human rights of women and girls. This includes respecting their bodily autonomy and supporting their sexual and reproductive health and rights.

International human rights law

The International Covenant on Civil and Political Rights (ICCPR) also rejects the idea that the right to life applies before birth. The Committee on the Rights of the Child, the expert treaty body that interprets and applies the Child Rights Convention, likewise denies a right to life to the fetus. The European Court of Human Rights has opined that the right to life does not extend to fetuses under Article 2 of the European Convention on Human Rights (ECHR).

However, there are some exceptions to this. The American Convention on Human Rights envisages the fetal right to life from the moment of conception. This convention has been ratified by 23 countries in the Americas. Two European Union member states, Hungary and Slovakia, grant the fetus the constitutional right to life. The Constitution of Norway grants unborn royal children the right of succession to the throne. Islamic law grants the fetus the right to life, particularly after ensoulment, which is believed to occur 40–42 days or four months after conception.

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