The logic of Alabama’s abortion law should permit you to claim a fetus on your taxes and collect insurance if you miscarry.
We ought to take our laws seriously. Under the laws, people have all sorts of rights and protections. When a state grants full personhood to a fetus, should they not apply equally?
For example, should child support start at conception? Every state permits the custodial parent — who has primary physical custody of the child and is primarily responsible for his or her day-to-day care — to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person — at conception in Alabama, at six weeks in states that declare personhood at a fetal heartbeat, at eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.
And what about deportation? Can a pregnant immigrant who conceived her child in the United States be expelled? Because doing so would require deporting a U.S. citizen. To determine the citizenship of a fetal person requires examination of Section 1 of the 14th Amendment, which declares, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The word “born” was not defined by the drafters. Presumably, they intended the standard dictionary definition: brought forth by birth. Our dates of birth are traditionally when our lives begin; we do not celebrate our dates of conception or the date of our sixth week in utero. But in states with abortion bans, “born” takes on new meaning. Now legislatures assign an arbitrary time during gestation to indicate when life, personhood and, presumably, the rights that accompany these statuses take hold. This grant of natural personhood at a point before birth brings application of the 14th Amendment into question and may thus give a fetus citizenship rights — but only in those states. There are no laws that allow the United States to deny citizenship rights to a natural-born citizen merely because they reside with, or in, a noncitizen.
Detaining any person without arraignment or trial violates the Constitution and international human rights laws. A fetus has not committed a crime, not been arraigned or charged, not weathered a trial by a jury of its peers, not had the opportunity to confront its accuser. These laws redefining personhood surely mean that a pregnant woman cannot be incarcerated, as doing so requires confining a second person without due process.
Progressives outside the Court correctly interpreted the subtext of the Breyer dissent. “Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade,” declared one columnist. Liberals are skiing so fast down this slope they can’t stop to think.
Justice Thomas is the only Justice who has endorsed overturning Roe. Chief Justice John Roberts and Justice Brett Kavanaugh are wary enough of abortion politics that they declined to hear a case last year involving Medicaid provider contracts ostensibly because Planned Parenthood was a plaintiff. The High Court will eventually address abortion rights, but it is likely to do so incrementally unless it is forced to take on Casey and Roe directly by some state law. And even then we don’t know what the Justices would do.