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Renouncing the Adoption or Misapplication of Laws to Recognize Fetuses as Independent of Pregnant Women

Policy Date: 11/5/2013
Policy Number: 20139

Related APHA Policy Statements

APHA Policy Statement 200318 – Safe Motherhood in the United States: Reducing Maternal Mortality and Morbidity

APHA Policy Statement 201114 – Reducing US Maternal Mortality as a Human Right

APHA Policy Statement 6803 – Abortion

APHA Policy Statement 8104 – Opposition to Constitutional Amendments or Statutes to Prohibit Abortion

APHA Policy Statement 8901 – Safeguarding the Right to Abortion as a Reproductive Choice

APHA Policy Statement 200314 – Support for Sexual and Reproductive Health and Rights in the United States and Abroad

APHA Policy Statement 20083 – Need for State Legislation Protecting and Enhancing Women’s Ability to Obtain Safe, Legal Abortion Services Without Delay or Government Interference

APHA Policy Statement 7704 – Access to Comprehensive Fertility-Related Services.

Abstract

Since 2008, multiple attempts across several states have been made to introduce “personhood” legislation or ballot initiatives that define human life as beginning at the moment of fertilization or conception, despite the fact that the US Constitution does not recognize fetuses as persons. Any personhood initiative that allows the state or other actors to claim rights of the fetus as independent of pregnant women has the potential to deprive women of access to comprehensive reproductive health care—including abortion services, assisted reproductive technologies, and autonomy in pregnancy and childbirth decisions—as well as their rights to life, liberty, and privacy. Recognizing the evidence that the ability to control the timing and spacing of one’s children and the ability to maintain bodily integrity during pregnancy are critical to the health and rights of women and their families, this policy aims to represent the American Public Health Association’s position against personhood policies. Specifically, this policy urges federal and state legislatures, law enforcement and judiciary bodies, election commissions, and health care providers to renounce any and all personhood claims or misapplications of child welfare laws that recognize fetuses as persons and infringe on women’s reproductive, constitutional, and human rights.

Problem Statement

Achieving reproductive autonomy by controlling the timing and spacing of one’s children as well as maintaining bodily integrity during pregnancy is critical to the health and rights of women and their families, both internationally and domestically.[1–4] As influential participants in this global discourse, the United States and US-based health and rights organizations have a particular interest in championing these rights. Since 2008, more than 85 attempts across 26 states (Alabama, Alaska, Arizona, California, Colorado, Florida, Georgia, Iowa, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, Texas, Virginia, West Virginia, and Wisconsin) have been made to introduce legislation or ballot initiatives to define human life as beginning at the moment of fertilization or conception. Similar bills have also been introduced in Congress.[5] Such efforts, which have been termed “personhood” or “fetal personhood” initiatives, inherently separate the fetus from the pregnant woman as a legal entity. To date, none of these efforts have passed, but their increasing frequency necessitates attention from the public health community.

Personhood initiatives lack both legal and scientific backing. The United States Constitution does not recognize prenatal “personhood” (i.e., it does not recognize fetuses as persons).[1,6] Extension of rights to a fetus through such personhood bills would affect not only women who seek to terminate a pregnancy but also women who wish to carry a pregnancy to term, as well as women who wish to become pregnant through assisted reproductive technologies.[7–10] Thus, “[t]here is no gender-neutral way to add fertilized eggs, embryos, and fetuses to the Constitution without subtracting all pregnant women from the community of constitutional persons.”[10] As a result, any codified personhood effort would inexorably contribute to negative public health outcomes for women, with particularly inimical outcomes for rural women and women with limited resources. Asserting legal rights for a fetus and prioritizing them over the established rights of a woman not only violates the woman’s privacy and autonomy but also ignores the broader context of women’s lives and the high risks associated with pregnancy and delivery.[11–13] Furthermore, there is an outright dearth of scientific evidence or consensus within the medical community or among religious communities about when life “begins” during the process of conception and gestation, while the diminishing rates of survival outside the womb at lower gestational ages and the increasing risk of associated morbidities for preterm births are well documented.[14–19]

In the context of pregnancy and delivery planning, management, and interventions, personhood laws have the potential to foster regulations that dictate how women should manage their pregnancies, including what types of medical care they should receive and what activities they should or should not undertake.[1,7–10] Examples of the harm that results when the state uses its interest in the fetus to supersede the rights of the pregnant woman have been well documented over several decades.[10,20] For example, in 1987, a woman in Washington, DC, was denied cancer treatment and forced to undergo an unwanted cesarean section in the ostensible interest of the fetus; both she and the baby died shortly after the surgery.[21] In 1999, a Florida woman attempted to give birth at home with a midwife. Hospital officials had the sheriff take her into custody and physically restrain her during active labor, as they disagreed with her wishes for a vaginal birth after a previous C-section. They forced her to submit to a C-section in the hospital without due process.[20] In 2006, a New Jersey woman was reported to child protective services after declining to preauthorize cesarean surgery and had her newborn removed from her custody, despite a successful vaginal delivery.[22] In 2010, an Iowa woman was arrested for feticide when she lost her pregnancy in the third trimester after falling down a flight of stairs.[23] Prosecutors in at least 18 states have used child welfare, murder, fetal murder, feticide, and manslaughter laws to arrest and prosecute pregnant women who had abortions, who suffered miscarriages or stillbirths, or who were unable to guarantee that the children they gave birth to would survive.[10] Such fetal homicide and related laws were designed to protect pregnant women from violence, not to subject women to arrest and prosecution. These instances illustrate how the misapplication of existing laws and claims of fetal rights or fetal personhood have the grave potential to deprive women of their rights to life, liberty, and privacy and autonomy in medical decision making.

Personhood laws would also restrict women’s ability to become pregnant through assisted reproductive technologies such as in vitro fertilization.[7–9] According to Centers for Disease Control and Prevention (CDC) estimates, 10.9% of women between the ages of 15 and 44 years experience impaired fecundity, and 7.4 million US women have used infertility services.[24] Despite the widespread use of these safe and effective services, however, personhood policies could make both doctors and patients criminally liable for many assisted reproductive technology processes.[1] The American Society for Reproductive Medicine[8] (including the Society for Assisted Reproductive Technology), the American Congress of Obstetricians and Gynecologists,[7] and RESOLVE: The National Infertility Association[9] all strongly oppose personhood initiatives because such initiatives infringe on women’s rights to privacy, to preventive and curative care, to potentially life-saving treatments, and to make decisions about their own health and well-being.

Finally, personhood laws would ban almost all abortions. Abortion remains a critical element of women’s health care, as it allows women to make the decisions that are best for the physical, mental, and economic health of themselves and their families and is sometimes a necessary, life-saving procedure.[1–4] In 2008, the US abortion rate was approximately 19.6 abortions per 1,000 women 15–44 years of age,[25] and it is estimated that one in every three women will have an abortion by the age of 45.[26] By design, policy or ballot initiatives that seek to define “personhood” would ban almost all abortions or severely restrict the gestational age limits at which abortions can be provided in any given state prior to viability. Such restrictions that impose additional barriers (including, but not limited to, higher costs, waiting periods, and travel obstacles, especially in instances in which women need to cross state lines to access services) to receiving timely abortion care serve only to delay the procedure to a later gestational age,[27–31] when the procedure carries a greater medical risk.[32–34] In terms of physical health consequences, studies show that abortion is a very safe procedure, especially relative to the risks and adverse outcomes associated with childbirth,[11] and that denying women access to safe abortion can be fatal.[35] Impeding access to abortion services also has financial, emotional, and physical consequences for women. As an example, a recent study of women who were denied abortions as a result of clinic- or state-level gestational limits showed that women who carried an unwanted pregnancy to term were three times more likely than women who received an abortion to be below the poverty level 2 years later; they were also more likely to stay in a relationship with an abusive partner.[30,36,37] Moreover, these restrictions unduly burden the most vulnerable populations with limited resources,[31,38–41] as abortion in the United States is already concentrated among poor women[38] and rural women, the latter of whom are 14 times more likely to travel farther distances to access abortion services than their urban and suburban counterparts.[42]

This array of harmful health consequences for pregnant women demonstrates the far-reaching negative implications of defining personhood from the moment of conception, as it would outlaw almost all abortions and impinge on a woman’s ability to make her own decisions about her health and pregnancy by allowing the state or other actors to assert rights for her fetus over her own.

Opposing Arguments/Evidence

No personhood advocates or advocacy organizations (such as Personhood USA and Personhood.net) provide a compelling scientific or public health justification for relegating the rights and health of pregnant women as secondary to those of the fetus. Many personhood claims are based on disproven links between abortion and adverse mental and physical health outcomes[33,43–45] or debunked claims of fetal pain before the 29th week of gestation.[46,47] Others are posited on the basis of religious beliefs or moral arguments. Fetal personhood initiatives suggest that fertilized eggs, zygotes, or fetuses should or do have the same legal status and rights as pregnant women and must be treated as a separate patient with valid legal interests. This claim reflects a belief that “life begins at conception,” although there is no scientific or religious consensus defining the beginning of human life.

Action Steps

Recognizing the full constitutional rights of pregnant women as essential to maternal and child health, including control over one’s own fertility, access to and control over medical interventions to safeguard the life or well-being of a pregnant woman, and abortion care services, APHA:

1. Urges federal and state legislatures to reject any efforts to codify the legal status of the fetus as a person or as independent from the pregnant woman, as well as efforts to define human life as beginning at the moment of fertilization or conception or to legalize compelled childbirth, as any such provisions limit women’s ability to access health care services and infringe on their human and constitutional rights.
2. Urges law enforcement and judiciary bodies to renounce the misapplication of murder, fetal murder, feticide, manslaughter, and child welfare laws to treat fetuses as independent of the woman carrying the fetus, as the misapplication of these laws is illegitimately punitive and unconstitutional and denies women their own full personhood and ability to make their own childbirth decisions.
3. Urges health care providers to facilitate and advocate for women’s continued access to all available reproductive health services, including abortion, infertility treatment, and medical interventions designed to protect women’s health and well-being.
4. Encourages federal and state legislatures to enact laws that proactively protect women’s full rights to reproductive autonomy and access to comprehensive reproductive health care services, including supporting women’s rights to privacy in medical decision making, especially as it relates to pregnancy.

References

1. Rights at Risk: The Truth About Prenatal Personhood. New York, NY: Center for Reproductive Rights; 2012.
2. Safe Abortion: Technical and Policy Guidance for Health Systems. Geneva, Switzerland: World Health Organization; 2003.
3. Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008. 6th ed. Geneva, Switzerland: World Health Organization; 2011.
4. Sedgh G, Singh S, Shah IH, Ahman E, Henshaw SK, Bankole A. Induced abortion: incidence and trends worldwide from 1995 to 2008. Lancet. 2012;379(9816):625–632.
5. Sanctity of Human Life, HR 23; 113th Congress, Broun P, et al., (2013).
6. Opinions on the Cases of: 1. Roe et al. v. Wade, 2. Doe et al. v. Bolton. Washington, DC: Supreme Court of the United States; 1973.
7. American Congress of Obstetricians and Gynecologists. ACOG statement on “personhood” measures. Available at: http://www.acog.org/About_ACOG/News_Room/News_Releases/2012/Personhood_Measures. Accessed December 7, 2013.
8. American Society for Reproductive Medicine. ASRM position statement on personhood measures. Available at: http://www.asrm.org/ASRM_Position_Statement_on_Personhood_Measures/. Accessed December 7, 2013.
9. RESOLVE: The National Infertility Association. RESOLVE’s policy on “personhood” legislation. Available at:http://www.resolve.org/about/personhood-legislation.html. Accessed December 7, 2013.
10. Paltrow LM. Roe v Wade and the new Jane Crow: reproductive rights in the age of mass incarceration. Am J Public Health. 2013;103(1):17–21.
11. Raymond EG, Grimes DA. The comparative safety of legal induced abortion and childbirth in the United States. Obstet Gynecol 2012;119(2):215–219.
12. Grimes DA. Estimation of pregnancy-related mortality risk by pregnancy outcome, United States, 1991 to 1999. Am J Obstet Gynecol. 2006;194(1):92–94.
13. Liu S, Liston RM, Joseph KS, Heaman M, Sauve R, Kramer MS. Maternal mortality and severe morbidity associated with low-risk planned cesarean delivery versus planned vaginal delivery at term. CMAJ. 2007;176(4):455–460.
14. Berkowitz GS, Papiernik E. Epidemiology of preterm birth. Epidemiol Rev. 1993;15(2):414–443.
15. MacDorman MF, Kirmeyer S. Fetal and perinatal mortality, United States, 2005. Natl Vital Stat Rep. 2009;57(8):1–19.
16. MacDorman MF, Mathews TJ. Infant deaths—United States, 2000–2007. MMWR Surveill Summ. 2011;60(suppl):49–51.
17. Martin JA. Preterm births—United States, 2007. MMWR Surveill Summ. 2011;60(suppl):78–79.
18. Kessous R, Shoham-Vardi I, Pariente G, Holcberg G, Sheiner E. An association between preterm delivery and long-term maternal cardiovascular morbidity. Am J Obstet Gynecol. 2013;209(4):e1–e8.
19. Wang ML, Dorer DJ, Fleming MP, Catlin EA. Clinical outcomes of near-term infants. Pediatrics. 2004;114(2):372–376.
20. Paltrow LM, Flavin J. Arrests of and forced interventions on pregnant women in the United States, 1973–2005: implications for women’s legal status and public health. J Health Polit Policy Law. 2013;38(2):299–343.
21. In re A.C. 573 A.2d 1235 (1990).
22. New Jersey Division of Youth and Family Services v. V.M. and B.G., in the Matter of the Guardianship of J.M.G. (App. Div., July 16, 2009).
23. National Advocates for Pregnant Women. Iowa threatens feticide but backs off. Available at: http://advocatesforpregnantwomen.org/main/whats_new/iowa_threatens_feticide_but_backs_off.php. Accessed December 7, 2013.
24. National Center for Health Statistics. Key statistics from the National Survey of Family Growth: infertility. Available at:http://www.cdc.gov/nchs/fastats/fertile.htm. Accessed December 7, 2013.
25. Jones RK, Kooistra K. Abortion incidence and access to services in the United States, 2008. Perspect Sex Reprod Health. 2008;43(1):41–50.
26. Jones RK, Kavanaugh ML. Changes in abortion rates between 2000 and 2008 and lifetime incidence of abortion. Obstet Gynecol. 2011;117(6):1358–1366.
27. Drey EA, Foster DG, Jackson RA, Lee SJ, Cardenas LH, Darney PD. Risk factors associated with presenting for abortion in the second trimester. Obstet Gynecol. 2006;107(1):128–135.
28. Finer LB, Frohwirth LF, Dauphinee LA, Singh S, Moore AM. Timing of steps and reasons for delays in obtaining abortions in the United States. Contraception. 2006;74(4]):334–344.
29. Foster DG, Jackson RA, Cosby K, Weitz TA, Darney PD, Drey EA. Predictors of delay in each step leading to an abortion. Contraception. 2008;77(4):289–293.
30. Foster DG, Dobkin LM, Upadhyay UD. Denial of abortion care due to gestational age limits. Contraception. 2013;87(1):3–5.
31. Upadhyay UD, Weitz TA, Jones RK, Barar RE, Foster DG. Denial of abortion because of provider gestational age limits in the United States. Am J Public Health. 2013 [Epub ahead of print].
32. Bartlett LA, Berg CJ, Shulman HB, et al. Risk factors for legal induced abortion-related mortality in the United States. Obstet Gynecol. 2004;103(4):729–737.
33. Henshaw SK. Unintended pregnancy and abortion: a public health perspective. In: Paul M, Lichtenberg E, Borgatta E, Grimes D, Stubblefield P, eds. A Clinician’s Guide to Medical and Surgical Abortion. London, England: Churchill Livingstone; 1999:11–22.
34. Joyce T, Kaestner R, Colman S. Changes in abortions and births and the Texas parental notification law. N Engl J Med. 2006;354(10):1031–1038.
35. Haddad LB, Nour NM. Unsafe abortion: unnecessary maternal mortality. Rev Obstet Gynecol. 2009;2(2):122–126.
36. Foster DG, Dobkin LM, Biggs MA, Roberts SCM, Steinberg JR. Mental health and physical health consequences of abortion compared to unwanted birth. Paper presented at: annual meeting of the American Public Health Association, October 2012, San Francisco, CA.
37. Foster DG, Upadhyay UD. Pivotal research on denial of abortion care: UCSF turnaway studies, part 1. Paper presented at: annual meeting of the American Public Health Association, October 2012, San Francisco, CA.
38. Jones RK, Finer LB, Singh S. Characteristics of U.S. Abortion Patients, 2008. New York, NY: Guttmacher Institute; 2010.
39. Joyce T, Henshaw SK, Dennis A, Finer LB, Blanchard K. The Impact of State Mandatory Counseling and Waiting Period Laws on Abortion: A Literature Review. New York, NY: Guttmacher Institute; 2009.
40. Dehlendorf C, Harris LH, Weitz TA. Disparities in abortion rates: a public health approach. Am J Public Health. 2013;103(10):1772–1779.
41. Dehlendorf CE, Weitz TA. Access to abortion services: a neglected health disparity. J Health Care Poor Underserved. 2011;22(2):415–421.
42. Jones RK, Jerman J. How far did US women travel for abortion services in 2008? J Womens Health (Larchmt). 2013;22(8):706–713.
43. Boonstra H, Gold RB, Richards C, Finer LB. Abortion in Women’s Lives. New York, NY: Guttmacher Institute; 2006.
44. Major B, Appelbaum M, Beckman L, Dutton MA, Russo NF, West C. Report of the APA Task Force on Mental Health and Abortion. Washington, DC: American Psychological Association; 2008.
45. Steinberg JR, Finer LB. Coleman, Coyle, Shuping, and Rue make false statements and draw erroneous conclusions in analyses of abortion and mental health using the National Comorbidity Survey. J Psychiatr Res. 2012;46(3):407–408.
46. Advancing New Standards in Reproductive Health. Fetal pain, analgesia, and anesthesia in the context of abortion. Available at: http://www.ansirh.org/_documents/research/late-abortion/FetalPain.FactSheet.6-2010.pdf. Accessed December 7, 2013.
47. Lee SJ, Ralston HJ, Drey EA, Partridge JC, Rosen MA. Fetal pain: a systematic multidisciplinary review of the evidence. JAMA. 2005;294(8):947–954.