The Rubio-Huckabee claim that actual and legal personhood start at conception has drawn trenchant responses from Art Caplan on the medical uncertainty of such a claim and David Orentlicher, drawing on Judith Thomson’s famous article, that even if a fetus is a person, woman would not necessarily have a duty to keep it in her body.
Their debate claim that the fetus is already a legal person under the constitution also deserves a response, for it has no basis in positive law. In Roe v. Wade all nine justices agreed that the use of “person” in the Constitution always assumed a born person, and therefore that the 14th Amendment’s mention of person did not confer constitutional rights until after a live birth. In the years since Roe, when the make-up of the court has changed, no justice has ever disagreed with that conclusion, including those who would overturn Roe and Casey.
For this reason it has been clear from the start that a constitutional amendment would be necessary to make the conceptus or fetus a constitutional person. A statutory enactment by Congress might protect fetuses after they have been born, for example, penalizing prebirth actions that injure or cause post-birth death, but it could not change the meaning of “person” in the Fifth or Fourteenth Amendment. State laws may embryos and fetuses the subject of homicide law, for example, penalizing a person who causes the death of a pregnant woman’s fetus, but they could not do so if those laws limited the constitutional right to abortion prior to viability.
It is interesting to consider what would happen if the fetus became a constitutional “person.” In Roe, Justice Blackmun stated that if that were the case, “the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the Amendment.” As Judith Thomson, however, so powerfully shows, this conclusion does not necessarily follow. It would then lead to a contest between the woman’s right of bodily control vs the fetus’ right to life. Much more discussion would be necessary to determine how this conflict should be resolved.
The strongest case for the woman, as Glenn Cohen noted in his comment on Orentlicher, would be in the case of rape because the woman has not invited the fetus in (akin to why the kidnapped woman would have no duty to stay hooked up to the famous violinist). Yet consensual sexual intercourse undertaken with FDA-approved contraception that fails would also not lead to such a duty. After all, the woman is exercising her right to have sexual relations and has taken all reasonable means to avoid “inviting in” a fetus. If there is a non-negligent failure of contraception, the woman should not necessarily have a duty to loan her body to the fetus anymore than a woman who through no fault of her own is raped (see Thomson for details).
The point is that if two persons are contesting the use of one person’s body one person’s right to life would not automatically trump a significant and lengthy use of the other’s body. Persons who negligently cause automobile accidents and damage another’s kidneys are not required to lose one of their kidneys as a result. Requiring a woman lend her body to a fetus when she has not been culpable in “inviting it in,” as Thomson notes, smacks of sexism, but not to worry, it’s only for nine months.
Thomson notes that at viability the situation might change because of waiver by the woman of her right to disengage and reliance by the violinist/fetal person. Whether those factors would kick in earlier would require further discussion.
The upshot of this discussion is that Rubio and Huckabee are wrong medically, morally, and constitutionally. Indeed, recognition of fetal personhood would by no means determine what the law or policy should be. The state may not be able to violate the “life” of the fetus without due process of law, but respecting the integrity of the woman who has non-culpably become pregnant could be a compelling interest if the state still then explicitly permitted previability abortions.
A further issue would arise if a personhood amendment were passed, and a state then failed to enact a prohibition on previability abortions. Is there a constitutional obligation to enact legislation, when such mandates are unconstitutional in regulatory settings? Would the remedy be a mandamus to the legislature to enact a ban and to prosecutors to prosecute? These are but a few of the questions that would arise if the Rubio-Huckabee posture on constitutional rights for fetuses became law.