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What fetal personhood would mean for Virginia

February 4, 2011 - 04:00 PM
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When is a person a person? (Photo: TBD Staff)

Remember Del. Bob Marshall's bill that would "construe the word 'person' under Virginia law" to include all "unborn children," beginning from the meeting of sperm and egg? Virginia Republicans have shot down similar bills in the past, but Marshall's bill has now made it to the full committee, where it will be debated this afternoon.

What would it mean for Virginia if all fetuses were suddenly "people"? "If you do a quick search for the word 'person' in Virginia law, you'll get 25,000 hits in over 9,000 documents," says Tarina Keene, executive director of NARAL Pro-Choice Virginia. "The implications for women are enormous."

Keene will be testifying against Marshall's bill this afternoon; I spoke with her on her drive down to Richmond. The case against making Virginia's fetuses people:

The far-reaching implications of "conception": As Keene notes, Marshall's bill would apply to fetuses, but it would also affect women who are not even yet pregnant. Since life as defined under the bill begins at "conception," it would include meetings of sperm and egg that fail to implant in the uterus. "It's giving zygotes personhood status," Keene says.  

The potential to prosecute miscarriage: "Forty percent of women lose their first pregnancy. Miscarriage is not something that is abnormal. It’s very common," Keene says. "Giving zygotes and embryos personhood status would give opportunities to any overzealous prosecutor to go after a woman who miscarries." The language of the bill says that "nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care." Since the line between a woman's body and another human life is getting pretty squiggly here, it's unclear exactly which activities would be considered "indirectly" harmful to a fetus, and which might constitute a direct harm.

The administrative nightmare: "Will everyone who finds out that they’re pregnant be assigned another social security number?" Keene asks. "Think about what that would do to the tax code. If you have a woman who is prone to miscarriage, she might have two, three, four miscarriages in a year. Is she going to be able to claim those unborn people on her taxes? I know it seems extreme, but that's what this could do." Even debating the bill constitutes a misuse of resources to Keene. "If this gets out and goes to the floor,I will be very interested to see what Virginians feel about spending time and energy on debating this issue," Keene says. To Marshall, though, the question of fetal personhood has already been decided: "Our Declaration of Independence states that 'all men are Created [not born] equal!' Our first right is 'Life.' We teach third-graders in our public schools that life begins at conception," he wrote in an op-ed last month. "There is no debate over this fact."

Fetuses are already covered under various laws: Virginia code already provides added penalties for the murder of pregnant women; killing a woman with the intent to prevent birth carries an additional penalty of ten to forty years in prison. And civil remedies are in place for women who experience the wrongful termination of a pregnancy. The fetus is part of the pregnant woman. If a woman loses a pregnancy due to another person's negligence, she can seek emotional and physical damages," Keene says. "But this law would also allow her to sue on behalf of the fetus. It's just unnecessary." In the case of assault, "if a woman has a miscarriage as the result of an assault, she would certainly have a tort claim as well."

Anticipating the end of abortion: Marshall's bill would give the unborn "all the rights, privileges, and immunities available to other persons, citizens, and residents of this Commonwealth," but subjects these pre-born civil rights to "the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this Commonwealth." In other words, it is not a direct challenge to Roe v. Wade—yet. "This is what we call a trigger bill," Keene says. "What they really want to do is outlaw abortion, but they can't because Roe is the law of the land. But if Roe v. Wade were to be overturned tomorrow, and this bill were in place, abortion would be immediately outlawed in the state."

For now: With Roe intact, the bill "could have an impact on stem cell research, in vitro fertilization, the birth control pill, emergency contraception," Keene says. "It has far-reaching implications. The sky's the limit."



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  1. emikoala emikoala

    Emily Koala

    Feb 07, 2011 - 09:48:57 AM

    How about Christine Taylor, an Iowa woman who last year was arrested for falling down the stairs while pregnant and then later, under questioning, mentioned she had thought about abortion earlier in the pregnancy, and then was arrested for attempted feticide? How about Samantha Burton, who last year was court-ordered to remain confined to bed for fear that going about her normal working life could induce a spontaneous miscarriage? How about Regina McKnight, a cocaine addict who became pregnant, delivered a stillborn, and was arrested and convicted of homicide on the grounds that her cocaine use may have contributed to the stillbirth? How about Angela Carder, a pregnant cancer patient who just 20 years ago was drugged and forced by the courts, under pressure from pro-life activists, to undergo a Cesarian section against her own and her family's and her doctor's wishes, that killed her? Wake up. There are countless stories like this. The powers that be in this country have a long and sordid history of treating women as simply walking wombs whose fetuses' rights trump their own. And this plays out in ways that are often of no benefit or help to fetuses (Angela's baby died; Christine's baby would have grown up with a mother in prison had her arrest gone through; Samantha could have lost her job and means of providing for her baby; Regina's baby would have been better served by providing drug treatment to Regina), but merely use the fetus as a rationale to justify controlling women's bodies.

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  2. msobel msobel

    marc sobel

    Feb 05, 2011 - 07:42:42 PM

    Don't forget the importance of fertility clinics with hundreds of thousands of "persons" for redistricting and women who might have a fertilized egg clogging up the HOV lanes.

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  3. TJ TJ

    TJ T

    Feb 09, 2011 - 07:45:33 AM

    @Doug, how can a woman be prosecuted for something that wasn't illegal 300+ years ago? Abortion wasn't illegal 300+ years ago, so that argument doesn't work. I understand that you, as a man, have the opinion that there should be no abortion. However, if you don't like Ms. Keene's argument, don't follow up with an equally stupid argument.

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