‘Fetal Personhood’ Questions to Ketanji Brown Jackson Should Terrify Us

During Judge Ketanji Brown Jackson’s Supreme Court confirmation hearings this week, Republicans on the Senate Judiciary Committee lobbed all sorts of out-of-pocket, truly bizarre questions at the first Black woman to be nominated to the high court. These questions ranged from pure political theater, like Sen. Ted Cruz (R-Texas) wondering aloud whether babies are born racist, to more real and dangerous but equally ridiculous questions like this one from Sen. John Kennedy (R-Louisiana) on Tuesday: “When does equal protection of the laws attach to a human being?”

Texas Sen. John Cornyn posed a similar question on Wednesday: “What does viability mean when it comes to an unborn child, in your understanding?”

We already knew Republican politicians and their conservative allies on the Supreme Court are gunning for abortion rights and the end of Roe v. Wade in this country—look no further than the hundreds of abortion restrictions that have shuttered access to the health service in the last few years, alone. Yet, these questions of fetal personhood reach far beyond just abortion to our rights to IVF, most forms of birth control, emergency contraception, and fundamental privacy rights, in general. The end-goal of anti-abortion activists—many of whom notably reside in Congress and the courts—has never just been sending abortion rights back to the state-level with the fall of Roe. They want to establish fetal personhood, enshrining “equal protection” for fertilized eggs and embryos that necessarily decimates rights for living American women.

“Fetal personhood is about normalizing 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, deputy executive director of National Advocates for Pregnant Women (NAPW), told Jezebel.

From a recent Texas bill that would allow pregnant people to drive in the carpool lane to the proposed Child Tax Credit for Pregnant Moms Act of 2022, policymaking that hinges on life beginning at conception is already here. In recent years, voters in Mississippi, Colorado, North Dakota, Oklahoma, and other states have considered ballot measures that would grant full personhood rights to fetuses, though those measures were ultimately rejected.

The list goes on: Georgia’s 2019 abortion ban, which was struck down in court in 2020, recognized fetal personhood by allowing parents to claim an embryo as a dependent on their taxes if a doctor detected cardiac activity. Wisconsin’s Unborn Child Protection Act threatens to criminalize and imprison pregnant people for current or past alcohol and substance use, as a threat to fertilized eggs, embryos, and fetuses, who are recognized as people.

Insidious as some of these bills may seem, any form of legal recognition of fetal personhood leads to dangerous outcomes for pregnant people, including criminalization for the full range of pregnancy outcomes—whether they be pregnancy loss following substance use or experiencing intimate partner violence, giving birth at home, or even safely self-managing one’s own abortion.

Criminalization of pregnancies is already happening, particularly to pregnant people of color who are more likely to be dehumanized by the criminal legal system. In 2019, a Black woman named Marshae Jones was criminalized and jailed when she lost her pregnancy after being shot in the stomach. Before her, Purvi Patel, an Asian-American woman, was conflictingly convicted of child neglect and feticide and sentenced to 30 years in prison in 2015 for allegedly taking abortion pills to end a pregnancy. And just last October, Brittney Poolaw, a member of the Wichita and Affiliated Tribes, was sentenced to four years in prison for manslaughter after she experienced a miscarriage and had methamphetamine in her system. They’re just three of the nearly 1,300 who have been criminalized for pregnancy outcomes in recent years—a number that’s tripled since the stretch from 1973 to 2005, according to NAPW.

Women like Jones, Patel, and Poolaw can be subject to charges like fetal homicide, manslaughter, or even child abuse, because most states have “redefined ‘child’ in the state criminal code to include fetuses,” Sussman says, rendering “more and more” pregnant people vulnerable to criminalization. In a country where homicide is the leading cause of death for pregnant people, feticide laws that were originally designed to protect them from violence have instead been co-opted by anti-abortion advocates to criminalize and surveil them.

The end of Roe would undoubtedly expand this criminalization and surveillance—especially as more and more people end their pregnancies with abortion pills, which can’t medically be distinguished from a miscarriage. In a post-Roe America, a miscarriage could be criminal, and without the legal right to abortion, all pregnancies and pregnancy losses would be regarded as potential crime scenes. State abortion reporting legislation and anti-abortion “crisis pregnancy centers” already laying the groundwork to monitor anyone who might “harm” their fetus.

Further, when “life begins at conception,” many forms of contraception—including some birth control pills, Plan B, or IUDs—could also be banned, following anti-abortion arguments that claim these methods cause “very early abortions” by preventing a fertilized egg from implanting in the uterus. Fetal personhood could also ban IVF by granting constitutional rights to all “people” starting from fertilization, since, as ARC Fertility has pointed out, “anything that puts an embryo at risk could be a criminal violation, even if its goal is the undeniable social good of helping someone have a baby.”

With fetal personhood, Sussman says, pregnant people are actually placed at greater risk, contrary to how feticide laws were supposed to protect them. “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.”

When Senators like Kennedy and Cornyn ask judicial nominees about their stance on when “equal protection” attaches to a human being, or fetal viability, this is the path they’re ultimately trying to take us down.