Why Does it Matter if a Fetus is a Person?

The New Republic online has a story about what the author calls a movement to have state constitutions declare that a fetus is a "person" from the moment of conception.  The story suggests that this is both a radical move and a clear effort to set up a direct confrontation with Roe and Casey in the Supreme Court.  TNR online stories are of variable quality and I'm not endorsing every bit of this one.  Still, it raises some interesting questions about why it matters, what the answer to that question means for constitutional doctrine, and perhaps more broadly how much constitutional doctrine matters at all.

Suppose that these constitutional amendments pass--hardly a far-fetched possibility in some states.  And suppose that the Supreme Court treats that question as a judgment (on a question of fact? of law? of something else?) to which it ought to defer.  What difference should it make?  One possibility is that the people who are advocating for this believe that personhood gives rise to a right to life that cannot be overcome by any competing factors.  In other words, they view this right -- all rights? -- as a trump.  If they take this point wholly seriously, then it seems to me that the logic of their position demands that abortion be made unavailable for victims of rape or incest.  It suggests to me, less clearly but still compellingly, that a mother's intentional taking of the life of a person ought to be treated as criminal conduct punishable by the murder statutes.  And it also suggests to me that it is far from clear, in a case in which childbirth might endanger the life of the mother, that the mother's right to life should take priority over the fetus's.  I don't know who should win in that situation, but it is certainly not obvious that the mother -- who has already lived to adulthood, and who in many cases has engaged voluntarily in conduct leading to the pregnancy -- has any greater right to life than the fetus, which is equally entitled to status as a person and which is a completely innocent party in these circumstances.  

Suppose, on the other hand, that the proponents of these measures do not believe rights are trumps and that abortions are always and everywhere unlawful.  Then the courts must perforce engage in some kind of balancing of interests.  They may treat personhood as a significant factor to be weighed, but they will not treat it as creating any absolute entitlement.  They will treat the fetus/person's constitutional rights the same way that, in fact, they treat most constitutional rights: as significant factors that are still subject to balancing and may still be overcome by competing interests.  Although they would now treat the fetus as a person from the moment of conception, once they went down the road of balancing interests, they might readily conclude that the fetus's status as a person can be plotted on an ascending scale of significance from conception to viability to birth, and that the more like a fully-developed infant the fetus is, the more weight its personhood should have in the balancing inquiry.  Compared to today, some outcomes might change.  Really, though, none of them would be required to change.

So what, really, is different about the state of the law if we call fetuses persons for legal purposes?  Obviously there is a rhetorical difference involved (and, to be fair, many might say there is a meaningful expressive or dignitary interest involved too).  Whether it really requires changes in substantive outcomes, though, is an entirely different question, whatever the proponents of these measures may think.  And somewhere in those complicated questions, we can find some interesting indications about how people think about constitutional rights and constitutional adjudication, indications that could be teased out in other areas.  

If, for instance, you believe that the right to life is an absolute trump against any government infringement, then I think it is fair to say that you should be forthright in agreeing with the implications I noted above: that all abortions, no matter the reason for them, should be illegal, that mothers should be criminally prosecuted in many cases, and perhaps that a mother whose life is endangered by a pregnancy should have no greater right to life than the fetus does.  To the credit of their consistency, some supporters of these laws do indeed believe this, although I imagine that other proponents will be quite willing to soft-soap those implications or deny them altogether.  Of course, the more forthright they are in acknowledging the logical implications of their position, the less palatable these proponents' position will be to many people who oppose abortion but not in all circumstances -- who, in other words, don't think a fetus's personhood should necessarily prevent it from being deliberately snuffed out.  But there is another interesting point here.  If you really believe that rights are absolute trumps, it is fair to say you should be more willing to apply that position elsewhere.  Granted that the right to life might be viewed differently than the right to free speech, for instance, although there is no textual warrant for treating them differently.  Even so, once you go down the road of saying that some constitutional rights don't allow for balancing, then it seems to me the consistent view of someone who supports the personhood measure should also take the position that flag-burning, hard-core pornography, the ingestion of peyote, support for subversion and/or terrorism, and other similar conduct should be wholly protected by the First Amendment.  

On the other hand, if you don't believe that personhood or the right to life are trumps, if you think that they are subject to some form of balancing inquiry, then I think you have again made an interesting statement about jurisprudence.  Rightly or wrongly, we do not normally associate a preference for balancing tests with people who take a strong view on matters like abortion and fetal personhood.  But it seems to me that if you believe that fetal personhood is not legally dispositive, if you believe that it can be overcome by other interests, then you are making an important statement about what courts must and/or should do in constitutional cases: they must or should "make law," insofar as they are not simply engaging in a mechanical reading of the text but are actually balancing competing and perhaps incommensurable interests.  In other words, someone who supports the personhood measure but does not think it always trumps other interests is, in a sense, saying that he or she supports Justice Breyer's vision of the judicial function.  That's a nice strange set of bedfellows.

Of course, you might respond that no one who supports or opposes these measures really thinks they are making a statement about jurisprudence, and that everyone understands that the relationship between these measures and the conclusions that courts reach will not be a matter of pure logic, but will have a heavy dose of politics and policy mixed in.  That's probably right: these laws are about giving the courts an opportunity to get rid of Roe and Casey, as much or more in a political sense as a logical one.  The courts will treat the personhood provisions as a kind of political or normative message or opportunity, without feeling in any way compelled to follow them to their logical conclusion.  Then you are making an interesting statement too.  You are saying that constitutional law is a matter of politics, not just "law."  You are saying that constitutional law is not just a matter of text or principle.  In this scenario, the proponents of the personhood measures, as well as their opponents, stand revealed as fairly radical legal realists.  

In a sense, much of this is ultimately about our comfort or discomfort with the idea of "personhood" itself, and what personhood says about legal status and rights, as well as what it says about abortion.  Abortion rights advocates might oppose these laws, quite sensibly, because they understand what they are really about.  But--and I am hardly the first to suggest this, in the abortion rights camp or otherwise--this is also an occasion for them, if they wish, to say openly that abortion does involve the death of a "person," or something so close to the death of a person as to be nearly indistinguishable; that the fetus is not just a lump of cells but something with real personal and moral status.  Their position, then, would be that even if this is true, there are still many circumstances in which it is acceptable for an individual, with the assent of the state, to deliberately take another person's life.  I think this is the position that many or most abortion rights advocates take, although it is still the case (but much less so than it used to be, I think) that some abortion rights advocates, for various reasons, like to minimize the moral status of the fetus and turn our attention away from the fetus's humanity.  Conversely, supporters of these measures who believe it is important to recognize the personhood and moral status of the fetus, but who do not implacably oppose all abortions, might say more openly and publicly that personhood is important but not all-important: that, even if the fetus is a person, it should still be acceptable to take its life from time to time.  Perhaps both sides will more openly acknowledge the tragic nature of their respective positions.  And perhaps both sides--but especially, I think, the proponents of these measures--will give some thought to what they really believe about the nature of constitutional law and adjudication, and abandon some of the more trite and mechanical descriptions of constitutional law and judging that we often see in public discussion.