On this week’s episode of Getting Common we discussed Dobbs v. Jackson Women’s Health Organization and the right to choose. This right turns on the holdings in Roe v. Wade and Planned Parenthood v. Casey. I have an article, forthcoming in UCLA Women’s Law Review, that questions whether Roe we shouldn’t do something so that we are not relying on Roe.
It’s still in progress, but I’ve pasted the current draft of the above the line text below:
We Shouldn’t Need Roe
Carliss Chatman
Introduction
In May of 2019, I wrote a tweet that has proven to be evergreen.[2] It states:
If a fetus is a person at 6 weeks pregnant, is that when the child support starts? Is that also when you can’t deport the mother because she’s carrying a US citizen? Can I insure a 6-week fetus and collect if I miscarry? Just figuring if we’re going here we should go all in.[3]
The tweet asks if a fetus is a person, as many of the recent laws banning abortion suggest, then why don’t we give fetuses full access to things ancillary to personhood—including the rights of citizenship that flow from being born in America?[4] The premise of the tweet and the subsequent publications[5] is simple: persons and citizens have constitutional guarantees that should not vary state-by-state.[6] Thus, if a fetus is given personhood status, it is owed equal protection under the law. In states with federal personhood laws, somehow both the fetus and the person pregnant with the fetus have full equal protection rights simultaneously, and, if there is conflict, those laws will prioritize the life of the fetus in all contexts, even if the life of the pregnant person is at risk. Fetal personhood may not end at the borders of the states with these laws. The idea that fetal personhood in one state requires equal protection in all states for those fetuses is supported by the United States Constitution and its jurisprudence.[7] In other words, fetal personhood in one state is a slippery slope towards fetal personhood in all states—thus it requires consideration of its consequences, as highlighted by some of the more absurd questions in the tweet.
Personhood is the status required to gain access to rights under the law. Human beings gain their personhood naturally—by simply being born. Other legal persons gain personhood rights from the state—this is how corporations, artificial intelligence, and recently, even animals have gained personhood rights.[8] By passing statutes based on fetal personhood, right to life advocates are creating a hybrid situation. If one need not be “born” to be a person, is that an attempt to redefine natural, human personhood? Or, is the fetus a new artificial person that is a creature of the state with rights defined wholly by the state? The Fourteenth Amendment contemplates this situation, as it declares that the federal government, not the states, define the personhood and citizenship of natural persons. If these statutes intend to alter the definition of “born” and not to create a new legal artificial entity they are an improper exercise of state power. In either scenario, this conception of fetal personhood is flawed. A fetus, like a corporation, can only act through its agents. Any agent acting on behalf of the fetus must weigh those actions against the rights of the natural person who the fetus relies upon for its life—the mother.
As any consideration of the agency relationship between a pregnant person and their fetuses, or if the rights of pregnant persons vis-à-vis their fetus shows, those proposing fetal personhood and many who agree that fetuses deserve equal protection, work to actively deny pregnant persons the same rights.[9] The state-by-state campaign for fetal personhood is simply the latest attempt to deny pregnant persons the right to choose as it is impossible to give a fetus autonomy without eliminating the autonomy of the person carrying that fetus. The fetus is the strawman in a movement of oppression that has attempted to roll back the rights recognized in Roe v. Wade for nearly a half-century. The outcome is not equal protection for fetuses, particularly since concern for their well-being ends at eliminating a pregnant person’s right to choose.[10] The goal is superior protection for fetuses in exchange for unequal protection for mothers.
The rights acknowledged by the Fourteenth Amendment have, thus far, prevented a total ban on abortion. The Fourteenth Amendment mandates that no state shall deprive any person of life, liberty, or property without due process of law.[11] In other words, states no longer have the right to define my personhood.[12] Instead, my equality is constitutionally guaranteed.[13] Equal protection means equal protection for all legal persons—such that an artificial persons rights are not superior to a natural persons, a man’s rights are not greater than a woman’s, and a white persons rights are not stronger than a Black persons.[14] Although fetal personhood laws defy this premise, the current composition of the courts all but assures that at least one of the latest attempts to rollback reproductive rights will survive.[15]
In this essay I suggest that for all persons to avail themselves of the right to choose the current paradigm calls for action at the federal level. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe v. Wade. We should not focus on swaying the U.S. Supreme Court to protect our right to choose.[16] The time has passed for lobbying individual state legislatures and hoping and praying that favorable justices retire at the right time or survive until the next Democratic administration. Instead, the other branches of the federal government should provide the protection as required by the Fourteenth Amendment.
- The Struggle for Reproductive Rights in the States
At the heart of the issue is how to apply the Fourteenth Amendment’s definitions of personhood and citizenship to state attempts to define fetal personhood. Our system of government has allowed states to define the personhood of unnatural creatures—such as corporations—since very early in our nation’s history.[17] In exchange for this freedom, states are not permitted to go back on their deal.[18] In other words, once personhood rights are granted, a state may not deny life, liberty, or property without due process, nor may a state deny equal protection under the law. Since the passage of the Fourteenth Amendment, states have not had the right to define the personhood of people. This is a subject—influenced either by place of birth or by complying with immigration and naturalization requirements—for the Constitution and federal law. State grants of natural personhood to fetuses challenge this norm. No state has declared whether their fetal personhood statutes create a new artificial entity, or whether it changes the definition of what it means to be a naturally occurring person, but that distinction could impact the constitutionality of the laws.
Currently, a pregnant person’s personhood rights change when they crosses state lines, because in every state with a fetal personhood law, their personhood is inferior to the personhood of a fetus.[19] In direct violation of the rights guaranteed by the Fourteenth Amendment, the states make a comparative personhood decision, prioritizing the fetus over the mother, that is not only a deprivation of the mother’s liberty, but can at times result in the end of their life. This outcome is just one way that makes it clear that the right to life movement is not about the sanctity of life generally. In the 23 states with TRAP (targeted restrictions on abortion providers) laws, that have reduced or eliminated access to abortion, pregnant persons live in a world without the protection of Roe for a procedure that, at times, is essential healthcare needed to preserve their life.[20]
In an amicus brief by the Howard University School of Law Human and Civil Rights Clinic in support of the respondents in Dobbs v. Jackson Women’s Health Organization, the clinic highlights the impact of historical medical and legal regulation of Black women’s reproduction by states. The brief profiles the legacy of reproductive control from forced reproduction during enslavement, to sexual terrorism during Reconstruction, to the movements for compulsory sterilization at the turn of the twentieth century, to the modern era with disproportionate access to birth control and other forms of reproductive freedom. Because the impacts of systemic racism results in Black women being in greater need of federal assistance for health care and has prevented Black women from gaining full access to reproductive freedom, state measures to eliminate the right to choose also disproportionately impact Black women. When combined with the failures of the health care system that results in disproportionate infant and maternal mortality rates, the state laws highlighted below operate as a death sentence for some pregnant persons. Forty-eight years of leaving this debate to the whims of the states and the courts has resulted in a system that disproportionately subjects the poor, women in rural areas, and women of color to the negative consequences of a lack of access to health care, including access to abortion care.[21]
Even if the pro-choice movement is successful this year, states will not stop attempting to overturn Roe v. Wade outright at most, and to continue with incremental infringements on the right to choose at the least. In the 2021-2022 Term, the Supreme Court is scheduled to hear Dobbs v. Jackson Women’s Health Organization, a caseon Mississippi’s law that bans abortion at 15 weeks of pregnancy, far short of the viability timeframe imposed by Casey.[22] There are no exceptions for incest or rape.[23] To obtain an abortion after 15 weeks a woman would have to be facing a medical emergency that causes substantial impairment or endangers her life, or a doctor would have to determine that a fetus carried to term would not survive. On July 22nd, 2021, Mississippi was more direct in its request—the state asked the Court to overturn Roe in its briefing.
This is not Mississippi’s first attempt at these restrictions or its first attempt to overturn Roe. In 2019, Mississippi passed House Bill 529, a fetal heartbeat bill. Like all previous fetal heartbeat bills, it did not survive. U.S. District Judge Carlton Reeves, who is also responsible for blocking the fifteen-week ban that is the focus of Dobbs v. Jackson Women’s Health Organization, ruled that the fetal heartbeat bill unequivocally violated a woman’s constitutional rights, as it “disregards the Fourteenth Amendment guarantee of autonomy for women desiring to control their own reproductive health.” In the face of clear Supreme Court precedent, and despite countless failed attempts, states persist. We cannot stop the war on women’s rights in the courts. State legislatures have been waiting for the right administration to fill the Supreme Court with at least five justices willing to overturn clear precedent.
Other states are also undeterred by previous court losses. A Texas TRAP law served as the basis for the holding in Whole Woman’s Health v. Hellerstedt, a 2017 Supreme Court decision.[24] Hellerstedt held that House Bill 2 from the 2013 legislative session, which required abortion providers to have admitting privileges a hospital within thirty miles, and abortion facilities to meet the same standards as ambulatory surgery centers and other facilities to meet the standards of a hospital room, created an undue burden for women seeking an abortion. Yet, each session since Hellerstedt, eliminating the right to choose remains a priority for the Texas Legislature.
During the 2021 Legislative Session, anti-choice legislators introduced numerous bills restricting abortion. On May 19, 2021, Texas Governor Greg Abbott signed the Texas Heartbeat Act (the Act), a fetal heartbeat ban that bans abortions as early as six weeks.[25] The Texas law intentionally takes a unique approach as an end run around the current undue burden standard. It is not enforced by the state Attorney General. It is instead enforced by anyone, including those outside of Texas, who may sue an abortion provider or anyone else who helps someone get an abortion, and receive as much as $10,000 per defendant. Even a cab or ride share driver could be included in a lawsuit. Notably, the onus is on the accused to prove they did not assist—the Act in essence provides for litigation by gossip.
On July 13, 2021, abortion rights organizations filed a class action suit for declaratory and injunctive relief under 42 U.S.C. § 1983 to block the legislation.[26] The petitioners include nonprofits such as Planned Parenthood Center for Choice, Center for Reproductive Rights, and Whole Women’s Health. The petitioners’ alleged that The Texas Heartbeat Act “flagrantly violates” the constitutional protections for Texans seeking abortions on several grounds. In addition, the suit challenged the new fee shifting penalty for legal challenges to abortion restrictions.
Unfortunately, the procedural complexity of the Act enabled Texas to take advantage of the current composition of the Supreme Court to implement a de facto ban on abortion. As a result of the five to four decision issued September 1, 2021, the law is in effect. An unsigned opinion from a majority comprised of Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett stated that the providers failed to address the complex and novel antecedent procedural questions. The majority relied on procedure to allow the Act to go into effect without any consideration for the impact of the law or whether it is constitutional. Justice Sonia Sotomayor’s dissent, joined by Justices Stephen Breyer and Elena Kagan, emphasizes the reality of the legislation. Sotomayor notes that the legislature accomplished its goal of deputizing private citizens to act as bounty hunters and eliminating state action to create a complicated legal morass that is difficult to challenge. Writing separately, Chief Justice John Robert’s joined the dissenting justices. In the meantime, the Act has almost completely eliminated the right to choose in Texas, as most women are not even aware that they are pregnant at six weeks.
While Texas’s bill clearly violates Roe, the procedural complexity allowed it to persist for thirty-six days. The Department of Justice (DOJ) filed for a temporary injunction to block enforcement of the bill. At a hearing on October 1, 2021, lawyers for the Texas Attorney General’s Office (Texas AG) acknowledged the deliberate and intentional inconvenience to women. However, the Texas AG noted the need to travel to Oklahoma, New Mexico, and even states further away results in a net positive—as it increases interstate commerce. The Texas AG also doubled down on the procedural complexity, claiming that not even the DOJ could proceed in an action intended to be enforced by private citizens.
In a 113-page opinion, District Court Judge Robert Pitman granted the DOJ’s request to stop enforcement of HB 8 on October 4, 2021, but a three-judge panel of the Fifth Circuit granted a stay of Judge Pitman’s order pending the State of Texas’s appeal just two days later. Judge Robert Pitman declared, yet again, Roe v. Wade and the right to choose to be the law of the land and felt that a law that infringes on constitutional rights should not be allowed to stand without review. Unfortunately, the Fifth Circuit, like the Supreme Court, is unmoved by these infringements. During the two days of relief, only a handful of the twenty-four abortion clinics in Texas began providing services again, as most were not sure what would happen if they performed abortions on those days then faced a reinstatement.
This chaos and confusion, which eliminates access to abortion then leaves women unsure of their rights while the parties battle in court, is a scenario desired by other states. By late September 2021, Representative Webster Barnaby introduced a similar bill in Florida. John Seago, the Legislative Director of Texas Right to Life, the group that helped to draft SB8, announced that he was working with at least three other states. Officials in Arkansas, South Carolina, and South Dakota have all suggested they will attempt to copy the Texas structure.[27]
Given Alabama’s previous efforts, they may be the next to take the Texas approach. At the time I wrote the tweet in 2019, Alabama joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward.[28] The Alabama Human Life Protection Act, which at the time was the most restrictive abortion law in the country, subjected a doctor who performs an abortion to as many as ninety-nine years in prison. The law had no exceptions for rape or incest. It redefined an “unborn child, child or person” as “[a] human being, specifically including an unborn child in utero at any stage of development, regardless of viability.” This Alabama law redefined personhood, potentially altering the application of the Fourteenth Amendment in the state. On October 29, 2019, Judge Myron Thompson prevented the ban from going into effect, holding “Alabama’s abortion ban contravenes clear Supreme Court precedent. It violates the right of individual privacy, to make choices central to personal dignity and autonomy. It diminishes the capacity of women to act in society, and to make reproductive decisions. It defies the United States Constitution.” Courts to date have agreed with Judges Thompson and Reeves, yet anti-choice legislators have persisted, operating as if a reversal of Roe in the courts is a fait accompli. Texas’s procedural end-run may allow states to give force to draconian measures that have been unsuccessful to date.
In addition to the statutes described above, many states stand ready for the Supreme Court to reverse Roe. Trigger laws will automatically ban abortions in the first and second trimesters of pregnancy if the Supreme Court overturns Roe v. Wade. Trigger laws will either reinstate pre-Roe laws, or implement new ones, including many of the laws discussed above. Twelve states have enacted these measures: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Texas, and Utah. Eight states never repealed their pre-Roe abortion bans, and it can be assumed that those bans will also go into effect should the case fall. Those states include Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, West Virginia, and Wisconsin.
The right of women to control their bodies has for decades depended on the composition of the Supreme Court and individual state legislatures.[29] Since Casey states have tested the limits of viability, and since Roe they have tested the definition of an undue burden. The cycle of legislation followed by litigation creates a period of uncertainty in which a woman’s right to choose is in flux or eliminated by the amount of time it takes to challenge a bill in court.[30] Even when the measures fail, the period of limbo has a chilling effect that is, in many instances, insurmountable. One does not plan an unplanned pregnancy, so as state legislators play a game each session that they have, up until recently, been sure to lose, they force abortion providers to close, impose additional restrictions, or engage in the weighty task of educating the public that they are still around. The current composition of the Court ensures that the incremental attacks on the right to choose will persist, and, in the meantime, fewer women will have access to abortion services.
- A Federal Solution
America has a persisting equality problem. At no time in our nation’s history has a movement for equal protection under the law been successful at the state level. The fight for the right to choose is no exception. Just as federal action was necessary to protect constitutionally mandated civil rights and voting rights and to make these rights uniform across the country, federal action is now required to protect the personhood rights of women.[31]
Decades of a vicious cycle of abortion ban followed by litigation and an incremental infringement on the right to choose proves that a state-by-state court-by-court solution is not the answer.[32] Roe v. Wade provides a constitutional right to abortion based in a right to privacy, which is an outgrowth of the due process protection of liberty found in the Fourteenth Amendment.[33] Planned Parenthood v. Casey refines and clarifies Roe, holding that abortion restrictions are unconstitutional when they place an undue burden on a woman seeking an abortion of a nonviable fetus.[34] Many anti-abortion laws rely on fetal heartbeats and fetal personhood as a means of redefining when viability, and life, begins with the hopes of coming within the parameters of Casey. The Casey undue burden standard has given states the ability to impose restrictions that target providers and impose waiting periods and diagnostic testing that are not medically necessary, all under the guise of protecting the health of mothers and the unborn.[35] It will be detrimental to women’s health if the Supreme Court allows any of the recent statutes to stand. And it will be even more detrimental if Congress does not see the writing on the wall and use its current composition to preserve and restore these protections.
Reproductive rights are as important as other rights that have compelled Congress to act in the face of state infringement. Yet, over the years Congress has either ignored the right to choose, or restricted access with measures such as the Hyde Amendment, a provision that received bipartisan support. The Hyde Amendment prohibits federal funds from covering abortion services for people enrolled in Medicaid, Medicare, and CHIP (Children’s Health Insurance Program). Due to the demographics of the women most likely to need these federal assistance programs, it acts as an intersectional discriminatory measure that disproportionately impacts women of color. Abortion services are health care, and the right to choose is constitutionally protected, but the politicization of abortion has meant that even members of Congress who claim to support the right to choose have done nothing to prevent its erosion in the states and the courts. Decades of moderation and neutrality have only aided the movement to eliminate abortion access. For the women in Texas, Mississippi, and other states with restrictive abortion laws, the procedural requirements, such as the requirements to overcome a filibuster, and political calculations leave them to face irreparable harm.
Thankfully, there is already legislation pending in Congress. The Women’s Health Protection Act (WHPA) ensures equal access to abortion for all women in all states.[36] The measure, first introduced in 2013, is the work of the Pro-Choice Caucus. Representative Judy Chua has introduced the WHPA every session since 2013, and it was reintroduced in the 117th Congress by lead sponsors Representatives Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX) and Senators Richard Blumenthal (D-CT) and Tammy Baldwin (D-WI), with 176 supporters in the House and forty-eight in the U.S. Senate. WHPA ensures the right to choose even if the Supreme Court overturns Roe. On September 24, 2021, the WHPA passed in the U.S. House of Representatives.
When states define natural personhood with the goal of overturning Roe v. Wade,[37] they are inadvertently creating a system with two-tiered fetal citizenship.[38] In some states, fetuses are persons subject to protection by the Fourteenth Amendment, while in other states the law does not acknowledge fetuses as separate legal entities. Yet, as noted above, in no state is there clarification as to whether the law intends the fetal person to be a shift in the definition of natural personhood or the creation of a new artificial legal person. The holdings of Roe and Casey[39] help to create this two-tiered system because they create a federal floor for access to the right to choose—a rule that some ability to abort a fetus exists in the United States before viability—but the cases do not guarantee access to abortion without any state created limits.
States can restrict rights to the floor of the federal requirements found in Casey, passing restrictions that do not impose an undue burden,or expand through to the limit of viability outside of the womb. If states are in fact defining a new artificial person and not changing the meaning of “born” under the Fourteenth Amendment, we could be in for more confusion and de facto bans on abortion as pregnant persons suffer. Because of the structure of our government, if the Supreme Court overturns these cases, that eliminates only the federal right to abortion access. Overturning Roe would not prohibit a state from continuing to allow access. In a post‑Roe world, in states like New York that ensure the right to choose through their constitutions and statutes, citizenship will begin at birth.[40] In states that move the line to define life as beginning as early as conception, personhood and citizenship will begin as soon as a person knows they are pregnant. To solidify the federal floor and raise it so that all persons have the right to choose, Congress can act, providing much needed clarity and eliminating the ability of states to infringe upon a constitutionally guaranteed right.
All women have personhood and the corresponding rights as acknowledged by the Fourteenth Amendment. The Constitution does not, however, guarantee female autonomy.[41] Instead, the idea that women have the legal agency and capacity to make all decisions, be they financial or regarding their own health care, has developed incrementally over centuries.[42] The current status of full legal autonomy, in which a woman has the right to take an active and definitive role in her own well-being, free from the control of a husband or other patriarch, the right to a workplace free of discrimination, and even the right to be protected from violence developed far later than most people realize.[43] In many states the right to an abortion, as it currently stands, fails to acknowledge the personhood and autonomy of women, resulting in a reversal of developments that required generations to gain.[44] If the Supreme Court overturns Roe, female personhood and autonomy will return to the not so distant past, and a variant of the two-tiered system that exists today would be solidified. Should a Black woman on Medicare in Mississippi find herself faced with an unplanned pregnancy, the state will infringe upon her Fourteenth Amendment right to privacy and her human right to autonomy. Meanwhile, a similarly situated Black woman in California has the Constitutional rights she deserves as an unimpaired and competent human being.
The Constitution does not intend for equal protection to be state dependent or subjective. Even in a federalist state, constitutional protections should be consistent. States are government actors who do not have the right to redefine what it means to be a person or citizen. A pregnant person’s rights should not be determined by whether a legislature has a grasp on science. Not when the language of the Constitution clearly states that personhood begins at birth, not a heartbeat in utero.[45] Through fetal personhood laws states have invoked a system of comparative personhood that places a fetus above a pregnant woman—a paradigm that is patently unconstitutional. Defining citizenship and personhood based on the laws of each state, as proposed by the numerous measures to eliminate the right to choose, creates some far‑fetched and even ridiculous scenarios. If we allow this to persist without federal legislative intervention, we will tie our Constitution into a knot no court can untangle. Fortunately, there is a solution that can avoid these absurd consequences. If the Senate passes the WHPA and the bill becomes law, the right to choose would survive even if the Supreme Court overturns Roe v. Wade.[46] By passing one bill Congress could undo the infringements of the past while also putting a stop to the harmful statutes and subsequent case law that weaken the intended impact of the Fourteenth Amendment.
Resolving this matter to protect the constitutional rights of women is not outside of the scope of congressional power. At many junctures of our nation’s history, it has been evident that we cannot rely on states to provide equal protection. In fact, since the Thirteenth, Fourteenth, and Fifteenth Amendments realigned our government to instill the power of protection squarely within the domain of the federal government, it has always taken an act of Congress to guarantee any measure of equal protection under the law. Congress has acknowledged state infringements on constitutional rights and provided a remedy in the past with measures such as the Voting Rights Act and the Civil Rights Act. Title VII of the Civil Rights Act which prohibits employment discrimination, and Title IX of the Education Amendments of 1972 which protects people from discrimination on the basis of sex in education programs or activities that receive federal funds are the result of Congress recognizing the need to intervene to ensure equal protection.
Although abortion is legal in all fifty states, many women are either geographically limited or they face a procedural morass that in essence eliminates the right to choose. The WHPA resolves this injustice. Should the WHPA become law, health care providers, individuals harmed by state abortion laws that infringe on the right to choose as mandated by the WHPA, and the Department of Justice all can enforce the rights enumerated in the WHPA in court. The WHPA establishes a statutory right for health care providers to provide, and their patients to receive, abortion care without medically unnecessary restrictions, limitations, and bans that delay, and at times, completely obstruct, access to abortion. Not only would the WHPA eliminate the need for Roe v. Wade, but it would also enable parties to immediately challenge the restrictions that currently exist.
There are also opportunities for the Executive Branch to act. The federal government need not wait for the Supreme Court to respond—yet, for some reason there has only been movement in the House and the Executive Branch has chosen to leave the pregnant persons in Texas without access to abortion and has left the rights of other persons in limbo as we await a decision on the pending Mississippi case. If the Supreme Court allows the Mississippi and Texas laws to stand, other states will not be far behind. Given the tenuous status of access to abortion, a failure to utilize all branches of the federal government to protect the right is a declaration of a position.
In a Nation article, entitled “What can Democrats do to Fight Texas’s Abortion Ban? Lots,” Elie Mystal mentions the possibility of using federal health care providers, with their potential protections from qualified immunity, to perform abortions in states with complete or partial bans.[47] Because qualified immunity protects federal employees from private lawsuits arising out of the performance of their jobs, Mystal theorizes that through executive orders the Biden administration could provide pregnant persons with a federal option for abortion care even in states with bans. Mystal states that Democrats must do something—but to date the federal government has only passed the WHPA in the House and allowed it to linger in the Senate. The administration could use executive orders in ways beyond what Mystal contemplates. Over the years, Presidents have used executive orders to advance and reverse policies when Congress has failed to act on issues including immigration, public health, and national security. The results of an exercise of executive power have been mixed in the courts, but the orders have, in the short term, provided immediate relief. If the right to choose is a part of the Biden Administration’s policy, it could use the executive power to protect that right as Congress and the courts weigh the issue.
Conclusion
The danger of a state-by-state approach to personhood in which some states grant personhood to fetuses and prioritize that fetal personhood above that of the mother is that it not only frustrates the purpose of the Fourteenth Amendment, but it creates the potential for systemic absurdities that I highlight in my tweet.[48] The Fourteenth Amendment guarantees equal protection, thus when a state grants full personhood to a fetus, that personhood should apply equally.[49] It is impossible to protect the purported personhood of a fetus, against the rights of a pregnant person without denying their personhood and their right to equal protection under the law.
The simple truth is that the right to choose should not be dependent upon the opinion of five justices on the Supreme Court, or on whether a woman resides in a red or blue state. Instead, the other branches of the federal government should act. The message from those who oppose the right to choose is clear—they are determined to completely ban abortion.[50] And they are willing to do so even if it requires disrupting constitutional principles.[51] Instead, the federal government must intervene to ensure that all persons are given the rights and privileges afforded them through the Constitution.[52] Equal access to abortion is healthcare and also fundamental to protecting the personhood of women. If we believe, as a society, that women are equal and deserving of all freedoms enumerated by our Constitution, then that is a belief that deserves protection through an act of Congress. We shouldn’t need Roe v. Wade to protect the right to choose.
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