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Some states want a fetus to be considered a person. Defining those rights is tough


The Supreme Court opinion erasing Roe v. Wade says the 14th Amendment right to privacy does not apply to abortion. Now every state can define its own laws on reproductive rights. Abortion bans that were invalidated by Roe have been restored, including laws that extend legal rights to a fetus in utero. Carliss Chatman is a law professor at Washington and Lee School of Law. And she says what's known as fetal personhood could be the next frontier in the legal battle over reproductive rights in the U.S.

CARLISS CHATMAN: The example I like to give is two things. One, the tax code and, an even more simpler one, the HOV lane. The reason that a pregnant woman can't drive in an HOV lane is because there is one person in the car. But if we define a fetus as a person, suddenly there are two people in the car. So this pregnant mother can drive in an HOV lane if a state has a fetal personhood law. In the tax code, the reason that you can't claim the baby on your taxes until it's born is because it is not a person yet. But in a state that has a fetal personhood law, suddenly, you can put that fetus on your tax return. And so those are just, like, two simple kind of everyday things that everyone thinks about that immediately changes when you define a fetus as a person.

MARTÍNEZ: Now, when it comes, though, to introducing legislation to ban abortion by establishing fetal personhood, not all abortion bans establish that. Is this a legal knot for these states that have done that? Or are there holes in maybe other abortion bans?

CHATMAN: I think it's a knot for states that have done that, in part because we should not have two different definitions of human beings state by state. The 14th Amendment defines that a person is a citizen when they are born. And it kind of is implied to me in the 14th Amendment that they're referring to birth being when life begins. And so if we change that, you're changing federal law and state law at the same time. And I don't know how that is sustainable. You know, it could work the other way. We've got women who are now talking about going from Texas to New York or New Mexico to have an abortion. But if Texas passed a fetal personhood law, why wouldn't a pregnant person then move to Texas so they can get tax deductions and so that they can get the other benefits of it now being two people at the point of conception? So I think it's a legal quagmire that people are not thinking through. I don't know how it is sustainable to have two different definitions of people, human people, throughout the country.

MARTÍNEZ: Because that's where we're going, right? Because the argument to strike down Roe was always, well, this isn't something that the Supreme Court should be deciding as much as it should be up to individual states. But I guess if these are the scenarios we're talking about, I mean, that could create a big mess.

CHATMAN: Yes. And what I like to analogize it to is what the U.S. was like before the Civil War. Before the Civil War, states had different definitions of when a Black person was a person and when a Black person had citizenship rights, human rights - any rights. And it varied state by state. We fight a whole civil war about it. Fourteenth Amendment passes, says everyone born in the U.S. is a citizen, essentially says every human being is a person, a legal person with legal rights and due process rights. So in theory, we shouldn't be able to allow states to define when personhood begins if we've got the 14th Amendment in place. But with the overturning of Roe, we know that the right of privacy based on Roe, that is the foundation of abortion rights, is gone. But what is happening with personhood with Roe gone? And I think you go back to the foundations of what the 14th Amendment is, and to be an originalist, why we even have the 14th Amendment in the first place.

MARTÍNEZ: Now, many of these trigger laws that went into effect post-Roe are being challenged in court. Arizona's law, for example, gives an unborn child, at least, at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents. Now, the lawsuit argues that the law's vagueness violates the right to due process and could put abortion providers and pregnant people at risk for criminal prosecution. A hearing is set for July 8 on that. Professor, what arguments are we likely to hear there?

CHATMAN: I'm hoping that they make a strong federal argument that this is a 14th Amendment violation, that you cannot redefine when personhood begins state by state. I would love to see that happen. What I fear is that we get lost in the weeds on abortion rights in general. We get lost in the weeds on the fact that now states can define whether or not a woman can have an abortion, when and where and how, and that the personhood argument gets lost in the shuffle. I think the personhood argument is actually the stronger argument. But it's also a more complicated argument.

MARTÍNEZ: Carliss Chatman is a law professor at Washington and Lee School of Law. Professor, thanks.

CHATMAN: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.