Paul Ryan (R-Wis.) wasted no time adding his name to the list of 25 other Republican representatives in the reintroduction of a bill that would redefine life beginning at the moment of fertilization. A personhood amendment, as they are commonly known, has been introduced in the last several congressional cycles. This bill, introduced on January 3, 2013 by Mr. Broun (R-Ga.), is called the Sanctity of Human Life Act. The text of the bill declares:
"The right to life guaranteed by the Constitution is vested in each human being, and is the paramount and most fundamental right of a person; and … the life of each human being begins with fertilization, cloning, or its functional equivalent, irrespective of sex, health, function or disability, defect, stage of biological development, or condition of dependency, at which time every human being shall have all the legal and constitutional attributes and privileges of personhood.
" … the Congress affirms that the Congress, each State, the District of Columbia, and all United States territories have the authority to protect the lives of all human beings residing in its respective jurisdictions."
Personhood amendments can effectively criminalize what a woman does with her body during pregnancy. The absence of personhood amendments, however, has not stopped many states from taking action against pregnant women, as a report in the Journal of Health Politics, Policy and Law found out.
The report traced the arrests and forced interventions of 413 pregnant women in the U.S. from 1973-2005. It noted that that the largest percentage of cases originated in the South, and in individual states the cases clustered in certain areas, even certain hospitals. 71% of the women qualified for 'indigent defense,' or what we would know as court-appointed legal representation. The largest amount of actions were taken against African American women (52% of the cases).
The reason for arrests or intervention in a vast majority of the cases was to protect the unborn child. But in two out of three cases, no adverse pregnancy outcome was reported. These criminal charges were brought upon the basis that there was a risk or positive drug test, but no evidence of harm (p. 319).
Despite our moral and ethical objections to the consumption of alcohol and drugs during pregnancy, these actions are not themselves illegal. States use child abuse laws and drug trafficking statues in order to prosecute women who use drugs while pregnant.
Currently, 38 states have laws making the death of a fetus a crime, and 23 states apply fetal homicide to the earliest stages of pregnancy. The Unborn Victims of Violence Act (UVA), passed in 2004 contained language that defined a ‘child in utero’ as a “member of the species Homo sapiens, at any state of development who is carried in the womb.” The wording of some feticide laws and the UVA essentially grant personhood to eggs, embryos and fetuses. They state that they should be treated legally separately from the women. This is exactly what a personhood amendment would seek to do.
Unlike feticide laws and the UVA which explicitly state that their provisions do not apply to abortion, a personhood amendment would guarantee all the rights and privileges to eggs, embryos and fetuses as granted by the Fourteenth Amendment.
By doing this, this triggers the collapse clause in Roe v. Wade which says:
“The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument ... On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”
Ryan's new personhood amendment is part of a history of attempts by anti-choice groups to circumvent the legal system though legislative loopholes or to force a legal battle in the Supreme Court to reargue Roe v. Wade. Using drug trafficking laws to go after pregnant women who may or may not be using drugs citing the need to protect the unborn child, only does so on the basis that the child ‘should’ be considered a person. The problem is, Roe v. Wade clearly recognizes that an unborn child is not a person, and therefore would not be protected under the 14th amendment.
In Ferguson v. City of Charleston, the court found that the involuntary drug testing of pregnant women at the Medical University of South Carolina violated the Fourth Amendment. The drug tests were done without prior knowledge, and individuals who tested positive were turned over to police. The court held that this amounted to unreasonable search and is therefore unconstitutional.
According to the Guttmacher Institute, women who have been prosecuted for drug use or child abuse are generally successful in having their convictions overturned on the basis that the fetus cannot be considered a person, as defined in the criminal statues. Other states have sided with the women on the basis that it is a violation of their due process.
Obviously, the health and well-being of a mother is an important component of producing a healthy child. The incredibly difficult social issue (and one that I do not believe we have satisfactorily met) is how we deal with substance abuse in general. Dealing with substance abuse and pregnant women presents us with no fewer issues.
So, where does this leave us?
Because it lacks specificity, the Ryan-backed personhood amendment would criminalize a wide variety of women’s choices. If life begins at conception, then it would be difficult to see a place for hormonal birth control, or intrauterine devices (IUDs).
But this is not an article seeking to deal with the issue of abortion; this article is about at what point we recognize that it is impossible to view women as separate from the fetus. The two are obviously not independent of one another. That the drafting and passage of personhood amendments would seek to separate the two and that this has far-reaching legal ramifications which cannot hope to be foreseen and would therefore be in violation of the Constitution.
Personhood amendments endanger not only the rights of women who seek to have abortions, but also those of pregnant women who do not. For whatever reason, this is okay to some, because the life of an unborn child surpasses the life of the women. But the Fourteenth Amendment still recognizes that women are persons, and as such we are endowed to the full rights and privileges of the Constitution.
The report on forced interventions and arrests already noted the ways in which African Americans and those of a lower socio-economic class were unfairly targeted by authorities. I believe a personhood amendment would proliferate those abuses and violate the Equal Protection Clause of the constitution.
I do not foresee an instance where a personhood amendment could pass the muster of strict scrutiny. Least restrictive means? I don’t think so. A personhood amendment and the way it is enacted would seem to be in direct contradiction of a women’s fundamental personal right. The current introduced piece of legislation is so vague in its description of scope or purpose for enacting such legislation that it would surely falter on that test alone.
Americans have continued to reject personhood amendments on the basis that their scope and powers are just too overreaching; that they do not make the appropriate exemptions for women’s health considerations. We are faced with the same issues with the Ryan-backed personhood amendment. The amendment is so broad that its dangers should be readily apparent to all of us. We cannot afford the passage of this personhood amendment, because it endangers the protected rights of women all over the U.S.