To: Interested Parties
From: NARAL Pro-Choice America Research Team
Date: June 1, 2023
Anti-abortion extremists are attempting to force religious beliefs into law with “fetal personhood” measures as part of their crusade against reproductive freedom. Right-wing legislators in Congress and across state legislatures are proposing to change the legal definition of the word “person” to include a fertilized egg, embryo, or fetus and extend to them equal protections under the 14th Amendment, with the intent of criminalizing abortion and other forms of reproductive health care.
This year alone, Congressional Republicans introduced the “Life at Conception Act” and Republican state lawmakers introduced bills in Arkansas, South Carolina, Kentucky, and Texas that ban abortion and seek to lock an ideological basis for when life begins into law. Because these efforts seek to establish that life starts at fertilization, they could criminalize abortion care, assisted reproductive technology like in vitro fertilization (IVF) treatment, and certain birth control methods based purely on anti-abortion medical disinformation. Anti-abortion leaders are notorious for promoting falsehoods alleging that intrauterine devices and emergency contraception interfere with implantation and are “abortifacients.” And since no bridge is too far for extremist Republicans, all these state bills would allow pregnant people to be sentenced to death for having an abortion.
Anti-abortion extremists claim to be fighting for “fetal rights,” but in reality they are paving the way for the prosecution of people who seek abortion care, their health care providers, and anyone who helps them. Under this horrific legal regime, people who have an abortion or experience a miscarriage or stillbirth could be criminalized on ideological grounds for homicide, child abuse, or other charges. These measures would compound the harm already experienced by people who are disproportionately the targets of surveillance and criminalization: Black, Indigenous, and other people of color; LGBTQ people; immigrants; and those with low incomes.
Republican lawmakers are operationalizing this extreme and unpopular ideology with “creeping personhood” legislation in other areas of the law—including tax code, child support, traffic offense, and transportation policies—as we have seen this session in West Virginia, Arizona, and Virginia and the congressional “Providing for Life Act.” South Carolina passed a ban on abortion at six weeks of pregnancy—which is temporarily blocked in state court—that also includes a provision requiring child support payments to start based on an ideological premise of when life begins. These covert efforts are Republicans’ backdoor attempts at sneaking ideological doctrine dictating when life begins into law. Though these incremental measures are designed to appear common-sense or even supportive of pregnant people, these tactics build up the legal infrastructure for penalizing people for their pregnancy outcomes.
Since Roe v. Wade was decided, anti-abortion extremists have made more than 300 attempts to push constitutional amendments that would impose a narrow religious definition for when life begins on all Americans. Because the majority of the American people opposes this fundamentalist ideology, anti-abortion actors opted to circumvent the legislative process and stacked the federal judiciary to prime the courts to deliver on their demands. Just last month, Trump-appointed Judge Matthew Kacsmaryk asserted that fertilized eggs, embryos, and fetuses “are entitled” to equal protections.
To be sure, anti-abortion leaders are working toward a national abortion ban based on “personhood” imposed through the federal judiciary, outside of the legislative process, and they’ll stop at nothing to advance their agenda through the courts. They assembled the anti-abortion supermajority on the Supreme Court to legitimize their agenda of control and criminalization, and their ploy to insert ideological claims about when life begins into law is laying the groundwork.