Constitutional Rights for the “Unborn” Would Force Women to Forfeit Theirs

If the unborn have 14th Amendment rights, any loss of pregnancy, whether intentional or not, will become the basis for arrest and prosecution.

Constitutional Rights for "Unborn" Fetus Would Force Women to Forfeit Theirs
If the Supreme Court grant fetuses protections under the 14th Amendment, the decision will give state authorities and doctors power to coerce and control pregnant women in every aspect of their lives. (Lorie Shaull / Flickr)

Ross Douthat’s recent op-ed “What Has the Pro-Life Movement Won?” in the New York Times addresses the possibility that the U.S. Supreme Court—now dominated by justices who oppose abortion—may, in the next abortion case, not merely impose further limits on that right, but more radically outlaw abortion altogether by recognizing “unborn human beings deserve protections under the 14th Amendment to the U.S. Constitution.” Douthat then suggests “pro-life” advocates will have to support expansion of government programs for the children poor women would be forced to have.

More than minimizing the harm done by outlawing abortions and forced childbearing, the op-ed reinforces the very big lie that the only thing that would be impacted by recognizing constitutional rights for the “unborn” is abortion. The fact is, it would fundamentally change the legal rights and status of all pregnant women.

The rights Douthat warns might be recognized will not just result in recriminalizing abortion—it will give state authorities (police, prosecutors, child welfare workers and judges) as well as doctors power to coerce and control pregnant women in every aspect of their lives. That power would extend to husbands and putative fathers as well, who have already gone to court and used claims of separate rights for the unborn to do such things as prevent a pregnant wife from moving to another part of the state or for requiring a surgical procedure that would prevent a miscarriage.

In other words, pregnant people could be sued, or prevented from engaging in travel, work or any activity that is believed to create a risk to the life of the unborn.

Not only will the backlash to a ban on abortion be swift and strong, but we can expect a massive uprising against recognition of unborn rights that, in fact, require pregnant women to forfeit their civil and human rights.

For example, if the unborn are recognized as separate constitutional persons, then the approximately one million people who have abortions each year (about the same number as who had illegal abortions annually before Roe) will be subject to arrests, prosecutions, incarceration and the possibility of the death penalty, as murderers. Hyperbole? Women in the U.S. have already been charged with murder for having or seeking to have abortions, whether by using dangerous methods such as coat hangers or by the use of the safe and effective medications misoprostol and mifepristone outside of an approved medical context.

If the unborn have 14th Amendment rights, any loss of pregnancy, whether intentional or not, will become the basis for an arrest and prosecution. In countries that have outlawed abortion and recognized rights for the unborn, it is not just women who have abortions who go to jail, but also those who experience miscarriages and stillbirths. For example, El Salvador has an absolute abortion ban. Under that law, women who have abortions go to jail along with women like Manuela who, in 2008, was sentenced to 30 years in prison after suffering a miscarriage. 

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It might be comforting to think arrests for having an abortion or experiencing a pregnancy loss would only happen in a foreign land, but as National Advocates for Pregnant Women has documented in peer-reviewed research, it is already happening across the United States. Right now, Adora Perez is serving 11 years for manslaughter of a fetus because she experienced a stillbirth. Chelsea Becker spent 16 months in jail for experiencing a stillbirth and remains charged with murder for experiencing a pregnancy loss.

The pace of these arrests and prosecutions is dramatically increasing. National Advocates for Pregnant Women has documented over 400 arrests of pregnant women related to their pregnancies or pregnancy outcomes in the years from 1973 when Roe was decided until 2005. From 2006–2020, we have documented over 1,000 such arrests—more than double in half as many years. Black, Brown and low-income, rural white women are the typical targets of these arrest.

Constitutional Rights for the "Unborn" Fetus Would Force Women to Forfeit Theirs
A National Day of Action to Defend Women’s Rights rally at Dallas City Hall on July 15, 2013.
(Steve Rainwater / Flickr)

It is not only criminalization that Douthat ignores. Claims of separate constitutional rights for fertilized eggs, embryos and fetuses have also been used to deprive pregnant women of their liberty through civil commitment proceedings and actions taken pursuant to civil child welfare laws. Pregnant women have been held in locked psychiatric wards and forced treatment facilities. They have been mandated to undergo intimate medical examinations, prohibited from smoking cigarettes, and subjected to blood transfusions over their religious objections.

In one case, a lawyer appointed to represent what turned out to be a nonviable 26-week-old fetus, successfully argued the pregnant woman who carried that fetus should be forced to submit to cesarean surgery, despite knowing the surgery was likely to kill her. The lawyer for the fetus won her argument: The court ordered the surgery and neither the woman nor her baby survived.

In New York, Northwell Health’s Staten Island University Hospital continues to argue that hospitals and doctors have an obligation to deny pregnant patients their rights to medical decision making and bodily integrity in order to protect the rights of the unborn.

Douthat and the “pro-life” activists he addresses in his commentary conveniently, if not deliberately, ignore the full consequences of granting fertilized eggs constitutional rights. They do so at their peril.

This NAPW video provides documentation of pre- and post-Roe v. Wade cases in which pregnant women who had abortions were targeted for criminal investigations, interrogations, arrests, convictions and incarceration:

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 Lynn M. Paltrow is a lawyer and the founding executive director of National Advocates for Pregnant Women.