50 Years After Roe v. Wade, ‘Fetal Personhood’ Laws Are Dangerously Looming

In 2009, Jessica Tebow and her husband were eagerly awaiting the birth of their first child, when an unexpected miscarriage and the threat of a possibly fatal infection—which could also cause infertility—forced her to have an emergency abortion. Tebow, who detailed the experience in a San Francisco Chronicle op-ed in September, said she and her husband saved the miscarried embryo as they wanted to have a small, private ceremony to mourn. But when her husband called the nearest funeral home and asked if they could pay for some sort of cremation process, they were told they needed a death certificate, to check with the local fire department, and to contact a coroner.

Upon doing so, the two were promptly investigated by the Glendale, California, police department, and Tebow, still reeling from the trauma of losing a wanted pregnancy, was questioned by police about “the baby I had put in the freezer.” Tebow realized police had broken into and searched her home. They had restrained her husband, threatened to arrest him, and confiscated their frozen, miscarried embryo.

Ultimately, the couple faced no criminal charges or arrest; a coroner confirmed that what police had alleged was a dead baby was actually an embryo, and they were allowed to cremate the remains. Still, after the brush with law enforcement, Tebow lost her job. The shame and stigma surrounding their experience prompted the couple to move away.

Tebow and her husband’s story is the result of the nauseating concept known as fetal personhood—the anti-abortion movement’s endgame, which confers legal citizenship upon fetuses and embryos, inevitably at the cost of pregnant people’s rights. Sunday would have marked 50 years since Roe v. Wade, had it not been overturned last June. But throughout that half-century, the constitutional right to choose was undermined by the anti-abortion movement’s freakish devotion to codifying fetuses and embryos as fully formed human beings—which it has achieved, to varying degrees of success, in tandem with state and local lawmakers, health care systems, or, in Tebow’s experience, law enforcement.

Now, without Roe, anti-abortion movement leaders have made it clear their next goal is enshrining fetal personhood. Lauren Wranosky, a research associate at Pregnancy Justice, an organization that offers legal services to pregnant people facing criminalization, told Jezebel of the myriad fetal personhood cases she’s reviewed in her work: An aspiring political candidate sued to list the date of their conception instead of their birthday to qualify for an age minimum. Similarly, in a child sexual abuse case, the perpetrator asked that their victim’s age be calculated based on the date of conception to try to evade the highest maximum sentence, which can be imposed if a victim is under 14. In Mississippi—and other states—you can be denied a divorce while pregnant. Post-Roe, adults and children have been denied life-saving medications that can induce abortions or impact fertility. “What all of these achieve,” Warnosky said, “is separating the fetus from the pregnant person,” thus prioritizing the life of this potential human over the actual human carrying it.

When an embryo is considered a “baby,” this “[normalizes] the idea that a pregnant person is not their own person anymore, that they’re subservient to the rights, individuality, and full personhood of a fetus,” Dana Sussman, acting executive director of Pregnancy Justice, told Jezebel last year. This can lead to catastrophic outcomes for pregnant people: “If their rights are secondary to the fetus, or at odds with the fetus, that lends to an environment in which violence—whether it’s state violence like imprisonment, or interpersonal violence—can be committed against pregnant people with far less accountability.”

Fetal personhood is everywhere, not just in legislation

Farah Diaz-Tello, senior counsel and legal director of the reproductive justice legal advocacy organization If/When/How, told Jezebel that post-Roe, we’re likely to see even more cases of criminal investigations and charges for pregnancy loss. Without Roe, pregnancy and pregnancy outcomes will be investigated with more scrutiny than ever, especially as some state abortion bans explicitly establish fetal personhood by stating that life begins at conception.

Further, about 40 states have fetal homicide laws that have been misused by police to criminalize pregnant people for self-managed abortions or pregnancy loss in recent decades. Ironically, these laws were originally introduced to protect pregnant people by discouraging high rates of homicide targeting them. Yet, criminal charges for pregnancy loss and self-managed abortion tripled between the periods of 1973 to 2005 and 2006 to 2020, from 413 to 1,331 cases.

As more and more people rely on online searches and digital communications to seek abortion care, digital surveillance has led to more pregnant people being criminally implicated: In 2018, Latice Fisher, a Black mother in Mississippi, was jailed for experiencing a stillbirth shortly after searching online for abortion pills. The following year, Marshae Jones, a Black woman in Alabama, was jailed and charged with homicide for miscarrying after she was shot in the stomach. All of these criminalized outcomes are the result of the women’s fetuses being treated as separate human beings who were harmed by their would-be mothers.

But policies advancing fetal personhood exist outside of explicitly criminal contexts, sometimes taking seemingly benign forms. A child tax credit for pregnant people, a bill to require fathers of fetuses to pay child support, or legislation to allow pregnant people to drive in carpool lanes all sound innocent enough, on the surface.

“What’s more insidious than criminal prosecution is, when a fetus is treated as a person with legal rights, how that plays out in reality is cases like [Tebow’s],” Diaz-Tello said. Tebow and her husband, mourning their loss, weren’t criminalized or imprisoned. But they were driven out of their community because police and local authorities deemed their embryo a slain baby. It’s a dangerous line of thinking that inevitably hurts pregnant people in all parts of their lives—from custody fights to emergency medical situations.

Personhood is in custody battles

In addition to states allowing judges to hold or delay a divorce while someone is pregnant, over the last 20 years, separated couples who created embryos together have been pulled into a legal gray area further complicated by the end of Roe, as this yielded more state abortion bans that include “life begins at conception” language; that is, even these zygotes might be considered people. There’s growing concern among IVF clinics that their work (which involves disposing of unused embryos) could be impacted by laws that recognize embryos as people.

Courts and lawmakers have for decades considered custody cases over separated couples’ embryos, and have arrived at pretty inconsistent conclusions. In 2000, a court in Massachusetts ruled that “as a matter of public policy,” a man who didn’t want his ex-wife to develop their shared embryos should not be “[compelled] to become a parent against his or her will.” Later, in 2012 and 2016, in Pennsylvania and Illinois respectively, judges ruled in favor of women seeking possession of embryos over their exes’ attempts to block them. In both cases, the embryos had been created prior to the women undergoing cancer treatments that threatened their fertility, prompting each judge to determine the embryos were the women’s only chance to have biological children.

In contrast, in 2015, a Superior Court judge in California ruled in favor of an ex-husband who wanted his shared embryos to be destroyed while his ex-wife wanted to use them. In 2018, Arizona’s state Supreme Court also ruled that a woman couldn’t use frozen embryos she’d made with her ex-husband—but with a caveat seemingly validating anti-abortion activists, that the woman would have to donate the unused embryos to couples or individuals struggling with fertility so they wouldn’t be left frozen or discarded. That same year, Arizona state lawmakers passed a bill requiring that in cases of disputed embryos, the embryos should be awarded to the party that’s most likely to make them “develop to birth.”

Regarding fetuses as people also allows abusers to turn pregnancy—or potential pregnancy—into a tool of control. Sussman told Jezebel last year that Pregnancy Justice has found cases of pregnant people being barred from out-of-state travel because of partners’ custody claims over their fetus. Some cases even characterized this travel as “kidnapping.”

Last September, the doctors of an Arizona woman who had an abortion in 2018 faced a lawsuit from the estate of her aborted embryo, created by the woman’s ex-husband. Without evidence, he claimed doctors had failed to adequately inform his ex-wife of so-called safety risks associated with abortion, in accordance with state laws. “I could see a universe in which an ex-partner, in an attempt to harass or terrorize or create fear in the pregnant person, would try to bring a wrongful death lawsuit against the pregnant person herself, in addition to the provider,” Sussman told Rolling Stone of the case.

In 2016, Sofia Vergara’s ex, Nick Loeb, sued her multiple times (unsuccessfully) over frozen embryos the couple created together, seeking to make Vergara a biological parent of his kids against her will. He filed a lawsuit on behalf of plaintiffs “Emma” and “Isabella”—names he assigned to their unused embryos—in Louisiana, where embryos are recognized as “judicial persons.” Loeb claimed Vergara had “abandoned and chronically neglected” the embryos by freezing them for three years and denying them a chance to be born.

Personhood is in hospitals and medicine

When embryos are accorded legal standing as people, pregnant people’s health and safety are endangered, as medical professionals render care that prioritizes their fetuses over them. Case in point: In 2004, when Utah woman Melissa Rowland gave birth to twins and one was stillborn, she was arrested for fetal homicide for not going to the hospital sooner. In 2009, doctors determined a Florida woman was at risk of a miscarriage, and proceeded to keep her at the hospital and force her to undergo an unwanted cesarean procedure. The following year, in Iowa, a pregnant mother of two was charged with attempted feticide after she fell down stairs, miscarried, and doctors reported her to police because they misidentified her pregnancy as being in the third trimester. (An Iowa statute defines termination of pregnancy in the third trimester as illegal.)

All of these cases reflect the punishment pregnant people can face, often for simply seeking help, when their embryos or fetuses are regarded as people.

Last April, a Texas woman named Lizelle Herrera was arrested, jailed, and charged with homicide for allegedly self-managing an abortion with medication. She was reported to police by a health care professional she’d turned to for help. A decade earlier, in 2013, Purvi Patel was charged with feticide for allegedly self-managing an abortion—she, too, was also reported to police by her doctor.

Per research from If/When/How in 2022, in the majority of cases in which pregnant people faced criminal charges for self-managed abortion in the last 20 years, they were reported to law enforcement by doctors and acquaintances. “We really want health care professionals to know they can help stop criminalization before it happens,” Laura Huss, a senior researcher at If/When/How and co-author of the report, told Jezebel last year. Huss emphasized that when patients know health care providers are policing them, “that can only make people more afraid to get the care they need.” New data published this week showed that people are three times more likely to die during pregnancy in states that ban abortion, underscoring the dangers for people who seek health care in states that humanize fetuses.

There are other medical emergencies in which not just pregnant people, but merely pregnant-capable people and children, are denied vital care over fetal personhood concerns. Wranosky points out it’s this line of thinking that’s resulted in numerous documented cases of children and adults being denied life-saving medication, including methotrexate for debilitating autoimmune diseases, because these medications can potentially induce an abortion or affect future fertility. Last year, Jezebel spoke with a woman with arthritis about being denied a prescription for a drug that could relieve her symptoms because she was of “child-bearing age”. Her reproductive potential was prioritized above her health. A post-Roe affidavit challenging Ohio’s abortion ban details cases of pregnant people with cancer denied life-saving cancer treatments while they were pregnant—all while the state’s ban was in place, prohibiting them from getting abortions.

“These are the natural conclusions of fetal personhood,” Wranosky said.

Seemingly benign bills are not

Shortly after Roe was overturned, a pregnant woman in Texas sued for the right to be allowed to drive in the carpool lane while pregnant in order to contest a traffic ticket she’d received for doing so. At the time, the case was hailed as a feminist statement poking a hole in anti-abortion hypocrisy. But legal experts pointed out that it was actually fairly dangerous.

Specifically, there’s a concerning history of invoking fetal personhood where driving is concerned. In 2009, a New York woman was charged with manslaughter for not wearing a seatbelt and miscarrying during a car accident. In 2021, Texas Republicans introduced a bill to allow pregnant people to drive in carpool lanes—this move wasn’t a victory for pregnant people, but rather a move toward legitimizing abortion bans by validating that life begins at conception. Virginia Republicans introduced a similar bill earlier this month.

Similarly, last February that House Republicans introduced a Child Tax Credit to give financial assistance to pregnant people. Months later, after Roe fell, Senate Republicans introduced a bill to require fathers of fetuses as young as one month to pay child support. A newly proposed bill in Oklahoma this week would also establish these requirements. Wranosky said that in some circles, we’ve even seen the argument that imprisoning a pregnant person violates not their rights, but the “due process” rights of their embryo or fetus.

None of this has been floated in the interests of pregnant people—fetal personhood never is. These bills and arguments are only about legitimizing embryos as people; it’s all a play to further strip pregnant people of their most basic rights, to view them merely as vessels for babies.

As anti-abortion activists set their sights on policymaking and strategies to advance fetal personhood post-Roe, Diaz-Tello warned it’s not just abortion bans that we should be concerned about: “We’re seeing there are so many situations people will find surprising and horrifying, [much] beyond the question of whether or not a person has an abortion.”