Fetal Personhood Efforts Continue; North Dakota Ballot Measure in 2014

The fetal personhood movement has resurfaced in North Dakota, as the legislature has approved a 2014 ballot measure that will offer the following constitutional amendment: “The inalienable right to life of every human being at any stage of development must be recognized and defended.” This measure aims to establish legal personhood for the fertilized egg, embryo and fetus, with the attendant implications for the assertion of reproductive rights (a bill in the state to directly install fetal personhood by statute failed last week). North Dakota is the first state to approach fetal personhood by legislatively-referred constitutional amendment, in contrast to the citizen-originated beginnings for other state initiatives. Fetal personhood initiatives have been on the ballot before, twice in Colorado (defeated 2008 and 2010) and in Mississippi (defeated in 2011; see here). The Oklahoma Supreme Court invalidated a proposed personhood initiative in 2012 (in a pre-ballot constitutional review), ruling that the initiative was unconstitutional because it could not be reconciled with Planned Parenthood v. Casey (1992) (establishing the “undue burden” standard to assess the legality of measures restricting the exercise of the right to abortion). At the federal level, the Life at Conception Act has been introduced in the Senate and the Sanctity of Human Life Act in the House. The latter states: 

[T]he life of each human being begins with fertilization, cloning, or its functional equivalent, irrespective of sex, health, function or disability, defect, stage of biological development, or condition of dependency, at which time every human being shall have all the legal and constitutional attributes and privileges of personhood...  

While the fetal personhood movement has largely originated as an attempt to limit reproductive rights, most clearly abortion and certain forms of birth control, the impact of shifting legal personhood to the prenatal stage affects other life science technologies. In vitro fertilization is a commonly used assisted reproductive technology (ART) in which embryos are created in vitro (outside the body) for implantation and pregnancy. In the process, some embryos are either destroyed or unused, and legal personhood for the embryo could potentially upend how IVF is performed, if at all. Fetal personhood further impacts the use of embryonic stem cell techniques, in which stem cells are derived from embryos leftover from IVF procedures and are used to treat various kinds of cellular degeneration (e.g., Parkinson’s disease). Elevating the legal status of the embryo could potentially derail this field of research and medicine. Therefore, fetal personhood strikes at reproductive rights, fertility treatments and stem cell therapies. At the present time, renewed efforts are underway in Mississippi as well as other states to place personhood initiatives on the ballot. The decision from the Oklahoma court on that state’s failed initiative is instructive, because the fetal personhood efforts began in response to the invalidation of many abortion-restricting laws in the country under either Roe v. Wade (1973) or Casey. However, the Oklahoma court applied the same constitutional lens to the proposed amendment that it would apply to more routine abortion restrictions, suggesting that the legal strategy of fetal personhood may be more legally vulnerable than its proponents have hoped.