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America’s next fight against abortion law will be about fetal personality

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Five days after the Supreme Court overturned Roe v. Wade, a pregnant Texas woman, Brandy Bottone, protested a ticket she’d received for driving alone in a carpool lane. Bottone argued that according to the recent Supreme Court logic that overturned the constitutional right to abortion, her unborn fetus counted as a person and thus met the requirements for high-occupancy lanes. Her ticket was later rejected.

These anti-abortion fanatics argue that “personality” begins at conception and that America must codify constitutional protections for fertilized eggs, embryos and fetuses.

Bottone’s protest highlighted the hypocrisy of fetal personality logic that gives fetuses rights in abortion cases, but not in other contexts. Those of us who support access to safe, legal abortion care found Bottone’s point to be valid – only because we believe that the fetus should not have superior rights in either case. But her point, which was logically drawn by people of different faiths, could also play into the hands of those who argue that a fetus should be legally given the same full rights as any other person born. This one anti-abortion fanatics advocate that “personality” begins at conception, and that America must codify constitutional protections for fertilized eggs, embryos, and fetuses.

Recently, the U.S. Supreme Court declined to hear a case allegedly clarifying the issue after a Catholic group and two pregnant women from Rhode Island sued the state on behalf of their unborn fetuses. “This court,” the women argued, “should serve the subpoena to ultimately determine whether prenatal life, at any gestational age, enjoys constitutional protection — given the full and extensive history and tradition of our constitution and law supporting the personality of unborn people.” The ultimate goal? To end abortion in all cases, without exception for rape, incest, fatal fetal abnormalities or maternal life.

To learn more about Wendy Davis’ historic fight for abortion rights, watch “Shouting Down Midnight” on MSNBC on Sunday, October 23 at 10 p.m. ET.

Currently, Alabama, Arizona, Georgia and Missouri all have personality laws in different forms. Kansas also had one, but voters there overwhelmingly voted to retain abortion rights in their state in August. Other states, such as my home country of Texas, will almost certainly consider passing legislation on personality (again) in their upcoming legislative sessions.

These laws could have far-reaching implications, even if they are proposed in states that already restrict abortion.

Wendy Davis, a Texas state senator at the time, speaks during her 13-hour filibuster about an abortion law in Austin, Texas, in 2013.Eric Gay / AP File

Take for example, a recent case filed in Kentucky by a group of Jewish women arguing that the laws there banning most abortions violate their religious beliefs. These were not women who were pregnant and wanted to get abortion care. Instead, these were women who wanted give birth. All three claimants require in vitro fertilization treatments to have children, but they are concerned about the potential legal and physical ramifications if complications arise. Taking a page from the script of Christian anti-abortion groups that have successfully combined their religious beliefs with legislation, Kentucky prosecutors argue that “Judaism has never defined life beginning at conception,” pointing out that a “millennia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.” Kentucky law, they argue, violates their ability to practice their faith without government interference, and similar lawsuits have been filed in Indiana and Florida.

According to the Centers for Disease Control and Prevention, about 2 in 100 births in the US are the result of in vitro fertilization; the medical innovation has helped tens of thousands of Americans conceive. In most cases of IVF treatment, embryos resulting from the fertilization process are frozen and not used immediately if ever. Many IVF advocates believe that this medical procedure would be compromised if the fertilized eggs and resulting embryos were given the same rights as a person. as the organization ARC Fertility Pose“anything that endangers an embryo can be a criminal offence, even if its purpose is the undeniable social good of helping someone have a baby.”

States with strict anti-abortion laws have already introduced criminal penalties for doctors or others who help a pregnant person have an abortion. In Texas, that punishment can mean life in prison. If “personality” is the operational legal term, supporters are concerned that doctors, pregnant women who abort or miscarry, and even those who help provide access to abortion care across state lines, could potentially be charged with murder.

And what about the removal of embryos after a couple or individual determines that they no longer want to conceive? What could be the penalties if a pregnant person uses alcohol or drugs during pregnancy? Or if a pregnant woman smokes? Or are you not following the correct dietary guidelines? Or not following bed rest in a precarious pregnancy?

The law of Georgia already says that a woman can claim alimony during pregnancy, claim the unborn child as a state-based income tax payable, and provide that the unborn child can be counted in the state’s population numbers. If consistency is our guide, as Brandy Bottone reasoned, is it really hard to believe IVF is next?

If there’s one thing I’ve learned as a policymaker and advocate for abortion rights, it’s that the abortion debate has always been as much, if not more, about controlling women as it is about an interest in protecting life. And the misogyny that drives this quest has an insatiable appetite. The next national chapter in this debate will almost certainly be about personality. And if we don’t fight back by November by defeating the anti-abortion lawmakers who successfully fought to overthrow Roe, we’ll have only ourselves to blame.

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