Personhood laws

‘Scratching their heads’: State lawmakers take a closer look at personhood laws in wake of Alabama ruling

The Alabama Supreme Court ruling that granted legal personhood to frozen embryos puts a new spotlight on states with laws that confer rights on fetuses from the moment of fertilization.

By MEGAN MESSERLY

More than a third of states consider fetuses to be people at some point during pregnancy. Any one of them could be the next Alabama.

That has state lawmakers and organizations on both sides of the political spectrum scrambling to understand state statutes, some of which are nearly four decades old, as they seek to protect access to in vitro fertilization, which is overwhelmingly popular in the U.S.

“A lot of state legislators right now are scratching their heads — whether you’re a Republican, Democrat, pro-life, pro-choice — and saying, ‘What are our laws on IVF?’ A lot of politicians have spent little or no time thinking about this. The Alabama decision kind of came out of left field,” said Billy Valentine, vice president of political affairs at SBA Pro-Life America. “For us, it’s about making sure that IVF is available but that these embryos aren’t needlessly discarded.”

The Alabama Supreme Court ruling that granted legal personhood to frozen embryos puts a new spotlight on the dozen or so states with so-called fetal personhood laws that confer rights on fetuses from the moment of fertilization. Others, like Texas, have tucked in their criminal statutes definitions that specify that personhood begins at conception, or rulings that have interpreted the law as saying so.

Democrats, including President Joe Biden, have sought to tie the Alabama ruling to Republicans’ anti-abortion views and the fallout of the Supreme Court’s 2022 decision to overturn Roe v. Wade.

Some conservatives are pushing back on progressives who say these state laws were designed to cut off access to IVF and are reaffirming their support for the procedure. But left-leaning groups that have been warning about the implications of these types of laws for years argue the latest legal dilemmas are the inevitable outcome of poorly worded — or in some cases intentionally open-ended — legislation.

“The real risk is actually not the abortion bans. It’s the other kinds of laws, like Alabama’s, that I’m more concerned about,” said Amanda Allen, deputy executive director for legal programs at the Lawyering Project, which advocates for abortion rights. “Whether or not that has immediate implications for abortion care or IVF care in that state, it is a statement of principle by the legislature that courts will credit and apply when interpreting its laws in the future.”

Some lawmakers, including in North Dakota, Missouri and West Virginia, expressed interest in the Alabama ruling and examining how they might make changes to their state laws governing frozen embryos. More than two dozen bills have been introduced in state legislatures this year that the abortion-rights-focused Guttmacher Institute considers as establishing fetal personhood.

“It is a very potentially exciting decision that actually might cause us to consider some of these questions,” said West Virginia state Sen. Patricia Rucker, a Republican, who is sponsoring multiple abortion-related bills this year.

But none have rushed to propose a bill — and lawmakers in Florida this week paused legislation they had been advancing that would have protected fetuses under wrongful death laws.

“The stunning levels of outrage about the Alabama decision are clearly having an impact on Republican legislators,” said Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine. “My read is that the backlash generated by the Alabama decision is probably dampening the enthusiasm of legislators in other states to codify this kind of thing. Of course, as we’ve seen, courts can be a different matter.”

Even Alabama lawmakers are scrambling to implement a legislative fix that would allow IVF clinics that have paused operations to restart. Lawmakers on Thursday are expected to vote on legislation that would exempt doctors who perform IVF from criminal and civil liability.

The measure was significantly scaled back from a draft — which would have carved out frozen embryos from the definition of “human life” and defined them as “potential life.” Still, it attracted swift backlash from the anti-abortion movement as an imperfect fix that “fails to respect the dignity of human life,” SBA Pro-Life America and the Alabama Policy Institute said in a statement.

Anti-abortion groups point to Louisiana, which since the 1980s has banned embryos created during IVF from being discarded, as a model for states.

“It is unacceptable the Alabama legislature has advanced a bill that falls short of pro-life expectations,” the groups said. “Alabama can do both: allow the continued practice of IVF with care for those suffering from infertility and respect life created through the IVF.”

Tipton and others in the fertility space are looking at existing state laws with fresh eyes. Nineteen states have either broad personhood provisions in their law, language on personhood or defining “unborn children” in their criminal code or case law expanding the definition of child under state law to include fetuses, according to a report from the left-leaning organization Pregnancy Justice. Two states — Alabama and Arkansas — have such language in their constitutions.

“Even if we read a certain bill a way and every lawyer who reads the bill interprets it the same way, it takes just one judge to interpret something differently, or in this case, I guess, a group of judges,” said Betsy Campbell, chief engagement officer at RESOLVE: The National Infertility Association. “The concern is that IVF could truly be in the crosshairs. That’s what’s scary now versus before.”

While some states have used these laws to prosecute pregnant people for drug use, “a lot of these types of laws have passed under the radar for years,” said Jessica Arons, senior policy counsel for the ACLU.

Three of those states — Alaska, Georgia and Wyoming — specify that the fetus must be in the womb to have personhood status, and four more grant personhood status at viability. But the rest specify those rights begin at fertilization or do not specify when in pregnancy those rights should start, laws that the National Infertility Association and attorneys working in the reproductive health care space believe a court could use to impact IVF.

“A lot of times people will say, ‘This is not enforceable. This is just legislative declaration language,’” Allen, with the Lawyering Project, said. “Well, now we see how this language is being used, and it’s harming people who are trying to make these reproductive decisions for themselves.”