Last month, Wisconsin Gov. Scott Walker signed a measure banning abortion at 20 weeks except in narrowly-defined cases of medical emergency. The law—which bans the procedure pre-viability and contains no exceptions for rape, incest, or severe fetal anomalies—is extreme by most standards. But Walker said he would sign the law whether or not it contained an exception for the life and health of the woman seeking an abortion. On Thursday night, Megyn Kelly asked him about it.
"[W]ould you really let a mother die rather than have an abortion?” Kelly asked, adding that the position put him out of touch with 83 percent of voters.
"Well, I'm pro-life," Walker replied. "I've always been pro-life, and I've got a position that I think is consistent with many Americans out there in that I believe that is an unborn child who is in need of protection out there."
It was a dodge, one that Kelly should have pushed him on. Instead, Chris Wallace put a similar question to Mike Huckabee, who replied:
A lot of people are talking about defunding Planned Parenthood as if that's a huge game-changer. I think its time to do something even more bold: I think the next president ought to invoke the Fifth and Fourteen Amendments of the Constitution now that we clearly know that baby inside the womb is a person at the moment of conception. […] This notion that we just continue to ignore the personhood of the individual is a violation of that unborn child's due process and equal protection under the law.
Huckabee is talking about a legal concept called fetal personhood. As he said, it means giving fertilized eggs full legal rights.
The actual ramifications of a law making fertilized eggs people remain largely hypothetical because of the different ways that some of these proposals are written—and because personhood fails basically every time it's put to a vote. (A personhood ballot measure failed three times in Colorado, including during the most recent midterms. Another one failed last year in North Dakota, and Mississippi voters rejected a similar proposal in 2011.) The full consequences of such a law are also clouded by the candidates, like Rand Paul, who support personhood but won't answer questions about what it would mean to make fetuses people.
But we do know some of what could happen if Huckabee's and Paul's personhood proposals ever took hold.
If a fertilized egg became a person, as Huckabee proposed, at "the moment of conception," then all abortion could become illegal. Reproductive rights groups warn that fetal personhood, if taken to its logical conclusion, would also make abortion the legal equivalent of murder. If fertilized eggs share the same rights as living breathing people—if every time a criminal statute says "person" the words "fertilized egg" or "fetus" also apply—there is no distinguishing between abortion and a crime like manslaughter. (This argument was a big part of the campaign against Colorado's Amendment 67.)
Personhood could also ban certain forms of birth control, including different kinds of emergency conception. But even without a law establishing personhood for fetuses, a number of states have interpreted existing laws to include fetuses, and the consequences have been catastrophic for women's constitutional rights, as Lynn Paltrow, executive director of the National Advocates for Pregnant Women, recently wrote at the New York Times:
Such laws are increasingly being used as the basis for arresting women who have no intention of ending a pregnancy and for preventing women from making their own decisions about how they will give birth.
How does this play out? Based on the belief that he had an obligation to give a fetus a chance for life, a judge in Washington, D.C., ordered a critically ill 27-year-old woman who was 26 weeks pregnant to undergo a cesarean section, which he understood might kill her. Neither the woman nor her baby survived.
In Iowa, a pregnant woman who fell down a flight of stairs was reported to the police after seeking help at a hospital. She was arrested for “attempted fetal homicide.”
In Utah, a woman gave birth to twins; one was stillborn. Health care providers believed that the stillbirth was the result of the woman’s decision to delay having a cesarean. She was arrested on charges of fetal homicide.
In Louisiana, a woman who went to the hospital for unexplained vaginal bleeding was locked up for over a year on charges of second-degree murder before medical records revealed she had suffered a miscarriage at 11 to 15 weeks of pregnancy.
It's because of how extreme a proposal it is that personhood is considered politically toxic, even among some anti-abortion groups and politicians that support it. During the 2014 midterms, candidates like Iowa's Joni Ernst and Colorado's Cory Gardner—both who won their Senate seats—distanced themselves from their previous positions in support of personhood. Even anti-choice groups like the Susan B. Anthony List tend to stay tight lipped on the issue during campaign seasons.
So the fact that it was introduced center stage at a national presidential says a lot about the current Republican field. This probably won't be the last we'll hear of it.