The ruling is the logical conclusion of investing fetuses with rights apart from the women carrying them

By Herbert Rothschild

Small though the victory was, I think I’m the only person who ever scored a victory for reproductive freedom at the Louisiana Legislature. That happened in 1976 at a committee hearing on a bill to redefine “person” to include “a human being from the moment of fertilization.”

At the time I was acting in a volunteer capacity as the state legislative director for the American Civil Liberties Union of Louisiana. I was the only person who appeared to oppose the bill. As I recall, the primary proponent was a representative of the Roman Catholic archbishop of New Orleans. After I argued against passage, I pointed out that intrauterine devices don’t prevent fertilization of an egg but its implantation in the uterine wall. I suggested that the legislators wouldn’t want to criminalize every woman who used an IUD and every physician who inserted one. Over the objections of the archbishop’s representative, they amended the bill to read “from the moment of fertilization and implantation.” It passed into law in that form.

All of us at that hearing, including me, thought of the bill as still another effort to protest Roe v. Wade, which had been decided three years earlier. Actually, though, the bill had implications far beyond political grandstanding. One of its implications surfaced the following year, when a man who had killed a pregnant woman in a traffic accident was found guilty of manslaughter. In a separate indictment he was charged with the “murder of a fertilized implanted fetus in the womb” of the deceased woman. The trial judge ruled that the second indictment violated double jeopardy, since the defendant had already been tried and found guilty of the act that killed the fetus. The state appealed that ruling, and the case went to the Louisiana Supreme Court.

That court ruled against the state. It rightly said, “The only extraneous materials available to us which relate to the legislative intent in amending the definition of the word ‘person’ do not reveal any intent to broaden the murder statute (except perhaps by implication), but rather an intent to legislate in the problematic field of abortion” (State of Louisiana v. Michael T. Brown).

I recall this episode from my past because on Feb. 16 the Alabama Supreme Court ruled that frozen embryos are children, that they are covered by the state’s Wrongful Death of a Minor statute, and that those who destroy them can be held liable for wrongful death. The court pointed to a constitutional amendment that Alabama voters approved in 2018 declaring that “it is the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

The court’s extension of personhood to a zygote outside a womb was startling. It even seemed to surprise Alabama’s top officials, who didn’t think that was what the 2018 amendment intended. The governor and legislative leaders said they would work to allow in vitro fertilization to continue, and the attorney general’s office said it wouldn’t use the ruling “as a basis for prosecuting IVF families or providers.”

Those assurances may or may not calm fears in Alabama and in other red states that IVF may become difficult or even impossible to receive. To me, that is of lesser concern than what the ruling signals — namely, a severance in law of childbearing from mothers. It is the reductio ad absurdum of investing with rights a fetus at any stage of development sooner than its ability to exist outside the womb absent intensive life support.

Which doesn’t mean that a fetus at earlier stages has no claim on our care. Mothers who carry life in their womb usually bond with it, and often experience intense grief if they miscarry (which happens with such great frequency it’s reasonable to conclude that God — if such a being exists — is hardly intent on bringing every conception to term). Further, when polling is done to accurately ascertain public opinion on abortion, it turns out that very few of us care about fetuses in their early stages of development but a majority of us care for them when they resemble babies.

Years ago in Relocations I wrote about the difference between rights and care. Rights is a powerful concept; it has brought major protections to human beings since it began to take hold in the later 18th century. But it’s an individualistic ideology, whereas care is a relational instinct. What is more relational than childbearing? Its essential character is distorted by viewing it through the lens of rights. Whichever side of the rights debate you espouse, you set the mother against the life within her or vice versa.

Consider what it would mean to give an unborn organism the status of a human being in criminal law. Let’s say a woman who is four months pregnant goes skiing, falls and has a miscarriage. Might she be charged with reckless endangerment? Suppose she simply trips at home and miscarries. Could she be charged with negligent homicide? Suppose she doesn’t even know she’s pregnant but miscarries in an emergency room while seeking treatment for an injury. Could she be charged anyway? The state would have an almost unlimited hold on the lives of women of childbearing age.

Conversely, consider what it means to deny the fetus any claim on our concern. Suppose the mother is addicted to methamphetamines and her health care professionals know it. Should they simply remain silent or try to intervene? If a newborn presents with alcohol fetal syndrome, should the state refrain from investigating the household to see if it’s a safe environment in which to leave the child? If we collectively have an obligation for the welfare of children, it follows that we have some obligation to assure good outcomes from pregnancies.

The more one thinks about the specifics of what the U.S. Supreme Court declared in Roe v. Wade back in 1973, the wiser the decision seems. It prevented the state from controlling women’s lives but created space for the state to express a proper care for the lives mothers were bringing into being.

Herbert Rothschild’s columns appear on Friday in Ashland.news. Opinions expressed in them represent the author’s views. Email Rothschild at [email protected].