The Alabama Supreme Court ruled on Feb. 16 that an 1872 state law providing a cause of action for the “wrongful death of a minor” applied to, as the plaintiffs put it, “embryonic children” — embryos created through in vitro fertilization that have been cryogenically frozen. This extremist strategy of establishing fertilized eggs, embryos and fetuses as people with constitutional and statutory protections, as exposed by this decision, not only subverts the personhood of pregnant people and threatens to criminalize anyone with the capacity for pregnancy, it also poses deep threats to our democracy.
For those of us following the Alabama Supreme Court closely, this is, while deeply disturbing, not surprising. Ten years ago, this court ruled that the definition of a “child” included fetuses at any point in gestation in the context of child abuse laws, meaning a pregnant person could abuse their “child” even as an embryo, ushering in the unprecedented mass criminalization of pregnant people in the state: more than 600 such cases from 2006 through 2022, outpacing every state in the nation in criminalizing pregnant people.
Fetal personhood laws, and their proponents, have been lying in wait for this moment. After the U.S. Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health, the focus was on the abortion bans that went into near-immediate effect, triggered by the resulting fall of Roe v. Wade. But fetal personhood laws also serve as trigger laws of their own. Over a dozen states have fetal personhood laws or constitutional provisions, all passed before Dobbs, that have not been robustly understood or implemented. Many were passed as symbolic or “value” statements about “preserving the sanctity of unborn life,” professing that “life begins at conception” or attempting to redefine the words “human” and “person” to include “embryo” and “fetus.” In a world in which abortion was a fundamental right, fetal…
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