The push to confer full “personhood” status on every fertilized human egg has been rejected by voters and lawmakers in state after state, including deep-red Mississippi.
But activists are cautiously hopeful that their cause could get a boost from Republicans who are about to assume leadership in Washington.
Georgia Representative Tom Price, who has been tapped by President-elect Donald Trump to run the Department of Health and Human Services, has twice co-sponsored federal legislation that would define fertilized human eggs as legal persons — a move that would outlaw not just abortion, but also potentially the pill and other common methods of birth control.
Vice President-elect Mike Pence, then a congressman from Indiana, also co-sponsored that bill, which was introduced in 2005 and 2007, as well as similar legislation in 2011. House Speaker Paul Ryan, who will see his power expand under the Trump administration, co-sponsored the same bill both years too, as well as similar legislation in 2009, 2011, and 2013.
Personhood activists, who generally oppose abortion even in the case of rape and incest, have several policy changes in mind as the new administration takes office.
As health secretary, for instance, Price could make it easier for employers or insurance plans to stop covering abortion and birth control. He could curtail federal funding for research on embryonic stem cells and contraception. And he, Pence, and Ryan could use their high-profile positions to raise awareness of the personhood movement.
Promoting ‘fetal tax credits’
In the meantime, personhood activists are pushing ahead with aggressive moves in a number of states. One novel tactic: introducing bills to give “fetal tax credits” — similar to the child tax credit — to pregnant women.
“There are just so many ways that personhood principles can be brought to bear on public policy,” said Dr. Patrick Johnston, a family doctor and pediatrician who’s also director of Personhood Ohio, an affiliate of the national advocacy group Personhood Alliance.
Johnston is leading a signature drive to get a constitutional amendment to assign personhood status to fertilized eggs on the 2018 ballot in Ohio. A similar effort is in motion in Florida, and is expected to start soon in Mississippi. And lawmakers plan to soon introduce personhood bills in Wisconsin, Alabama, South Carolina, and Mississippi.
They’re facing an uphill battle: Voters have rejected similar ballot measures everywhere they’ve been tried. Statehouses, too, have been roadblocks: Fetal personhood legislation introduced in at least nine states this year failed to advance, according to the Guttmacher Institute, a reproductive rights research group.
A Gallup poll earlier this year found that 4 out of 5 Americans don’t want to see abortion banned in all circumstances.
Even some abortion opponents hesitate to endorse personhood measures because they have such broad implications. They would effectively outlaw any form of contraception other than barrier methods — including the pill, the hormonal patch, and IUDs. Such birth control methods, which have been proven to be the most effective ways of preventing unplanned pregnancies, may sometimes work by preventing a fertilized egg from implanting in the uterus. (Most medical doctors consider pregnancy to begin at implantation, not fertilization.)
Personhood measures could also hamper in vitro fertility treatments, by disrupting the common practice of creating multiple embryos and implanting only the one or two most likely to be viable. The embryos that aren’t used are sometimes destroyed.
Yet another implication of personhood laws was on display this week in Louisiana, which has a unique law giving fertilized eggs some legal rights.
Two attorneys filed a headline-grabbing lawsuit in the state on behalf of two fertilized eggs created years ago by the actress Sofia Vergara and her former fiance, Nick Loeb. The suit accuses Vergara of denying the frozen embryos a chance to mature (and eventually be born) and demands that Loeb get custody of them.
One of the attorneys who filed the suit, Catherine Glenn Foster, has a record of legal advocacy for the anti-abortion cause. Personhood advocates told STAT they were not aware of any formal involvement by Foster in their movement, but one activist noted that Foster attended a conference earlier this year sponsored by a Cleveland anti-abortion group that works closely with the Personhood Alliance. (Foster didn’t return requests for comment.)
Building a legal framework for personhood
While they’ve failed to get full personhood bills passed, activists have made some progress pushing in that direction. At least 38 states have passed fetal homicide laws, which make punishments more severe for perpetrators who kill a pregnant woman, according to a count last year from the National Conference of State Legislatures.
Activists see such bills as an important step in laying out a legal framework that could help them pave the way for fetal personhood in the future.
Fetal tax credits would be another such step: They would allow pregnant women to claim tax write-offs for their unborn babies. Activists are working with legislators to craft such a bill in Mississippi, and have a goal of introducing it by mid-February, according to Les Riley, a personhood activist in Mississippi. Activists have also presented the idea to anti-abortion advocates in Iowa.
“It seems to us that that would be a personhood-affirming way to support women and to support families to keep their children, and at the same time to recognize the personhood of the child before birth,” said Gualberto Garcia Jones, national policy director of the Personhood Alliance. “It seems like such a common sense thing that might even get bipartisan support.”
As health secretary, Price would not be able to unilaterally outlaw abortion or assign personhood to a fetus. But there are plenty of ways he could indirectly advance some of the policies that naturally flow from the personhood movement.
Price is expected to play a key role in executing Trump’s plan to dismantle the Affordable Care Act, which mandates that health plans cover approved forms of birth control with no co-pay for most insured women. And Obamacare wouldn’t even need to be repealed for that perk to go away; Price could eliminate it with a regulatory maneuver.
Such a change would be “a personhood victory,” said Rebecca Kiessling, a Michigan attorney and president of Save the 1, an affiliate of the Personhood Alliance.
Kiessling also wants to see Price change the interpretation of a federal amendment so that state Medicaid programs would not be mandated to cover abortions in cases of rape or incest, or to save the life of the mother. That would reverse a rule change made under former President Bill Clinton’s administration.
Jones, of the Personhood Alliance, wants to see Price take a broader view of a different federal amendment that protects health insurance plans that object to covering abortion. Essentially, Jones wants to see Price give religious employers, as well as insurers, the right to eliminate abortion coverage from the health plans they offer their workers.
Price’s congressional office and Trump’s transition team did not respond to requests for comment.
Disdaining ‘incremental’ abortion limits
The personhood movement hasn’t been embraced by the biggest anti-abortion groups, which worry its unpopularity could jeopardize their movement as a whole. (Asked about personhood this week, for instance, Americans United for Life told STAT it doesn’t focus on that topic.)
Giving legal status to a fertilized egg or a fetus is “seen as extreme even within the anti-abortion community,” said Dr. Diane Horvath-Cosper, an OB/GYN and an advocacy fellow for Physicians for Reproductive Health.
Instead, the mainstream anti-abortion movement has scored victories in recent years with state laws that limit access by shutting down clinics or imposing waiting periods before women can terminate a pregnancy. “What they’ve done successfully is fight where they can win,” said Michele Goodwin, a reproductive health law scholar at the University of California, Irvine.
Such approaches are often denounced by personhood activists as insufficient. They even disdain bills as hardline as the legislation passed this week by lawmakers in Ohio; it would prohibit abortion if a physician detects a heartbeat, which is usually possible about six weeks after conception — before many women even know they are pregnant.
“Those are what we call incremental legislation, and I would consider them to be morally compromised,” Jones said.
Jones said he fears Price — despite his past advocacy for personhood — will adopt this incremental approach and seek to chip away at abortion rather than shoot for sweeping bans. He pointed to the fact that the personhood bills co-sponsored by Republican leaders didn’t get hearings despite being introduced year after year.
“I think [Price is] a pragmatic pro-lifer,” he said. “I think he’s willing to bend and so I don’t expect him to push forcefully the personhood agenda.”
But even that prospect scares some reproductive rights activists, who say incremental steps may be more palatable to voters and lawmakers — but still impose real harm on women.
“When we see people support personhood or abortion bans, it makes all of the other restrictions look so much more moderate,” said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, “when in fact they are real threats to humanity and dignity, too.”