What the GOP has done to the “unalienable rights” of women and girls
This year, the Right to Life Movement claimed another victory. In February, the Alabama Supreme Court ruled that fertilized eggs, stored by couples in the process of In Vitro Fertilization (IVF), must be considered children with full human rights and legal protections. That ruling opened the door for Alabama’s Wrongful Death of a Minor Act to be applied to fertilized eggs inadvertently destroyed or discarded in the process of IVF.
Critics of this decision have argued that what right-wing Alabamians call “children” are simply collections of a few cells, typically only 16 or 32, a miniscule number when compared to the whopping 36 trillion cells of the average adult male, 28 trillion cells of the average adult female, and 17 trillion cells of the average ten-year-old.
Alabama’s radical ruling effectively dismisses universally held scientific facts about reproduction in favor of the ancient myth of the homunculus, the miniscule, fully formed germ cell with all its organs and features intact but too tiny to see. Consider the ramifications. By decreeing frozen fertilized eggs to be children-in-miniature, homunculi, it follows that the state would have some responsibility to protect these vulnerable little Alabamians.
Once declared “children,” these prenatal homunculi would be covered by Alabama’s legal code (e.g. Title 26-14 for the protection of “infants and incompetents”), allowing for the prosecution of neglectful and abusive parents who lock their children in icy storage vats. And what about those medical professionals who facilitate the IVF process? Or the hospitals and clinics who store the fertilized eggs?
Immediately after the Alabama Supreme Court ruling, most IVF implantations of fertilized eggs came to a halt in that state. In less than three weeks, however, the state legislature passed a law (HB237) granting “civil and criminal immunity for death or damage to an embryo” while leaving intact the ruling that fertilized eggs are persons. Whom did the state legislature immunize? The health professionals, the fertility clinics, and the couples wealthy enough to pay for the service. Such is the legal and ethical thicket in which Alabama now finds itself.
Although Republican Candidate Trump and company recently removed the call for a national abortion ban from the “Make America Great Again” platform, they, nevertheless, endorsed efforts by states to pass prenatal personhood laws, and several Red states have already begun the process.
Personhood at conception was argued before the Supreme Court in 1973 by the Texas lawyers defending their anti-abortion law on the books at the time. These lawyers asserted that as soon as an egg is fertilized, the unborn is a person with rights guaranteed under the Constitution. In its 7-2 Roe v Wade ruling, the Supreme Court rejected this personhood argument and affirmed a woman’s right to privacy and bodily autonomy in the first two-thirds of her pregnancy. When a fetus could live outside of the uterus, presumed at the time to be 24-28 weeks, the Court allowed states to put in place limits on abortion.
During his term as president, Donald Trump proudly appointed to the Supreme court three conservative justices: Gorsuch in 2017, Kavanaugh in 2018, and Barrett in 2020. At their Senate confirmation hearings, these appointees agreed that Roe constituted precedent, and they acknowledged that the 1973 decision had been appealed and affirmed. Once they took their seats on the high court, however, they tossed precedent into the dustbin and joined the three conservatives already on the Court. Together, the six justices overturned Roe, precipitating what is today a patchwork of legislation similar to what existed before Roe. Blue States have affirmed the bodily autonomy of women up to fetal viability, and Red States have reinstated laws that remove fifty years of women’s rights.
In their draconian efforts to protect “life,” radical Red states either require that claims of incest and rape be supported by police reports, or they refuse any such claims. In doing so, they further victimize women and girls with the cruel punishment of forced pregnancy and the ordeal of labor that today comes with a one-third chance of cesarean section, followed by six weeks of post-surgery recovery. The problem with requirements of police reports is that rape and incest are the most underreported crimes in America, with information on just 37% of rapes and 20% of incest actually shared by victims with the legal system.
Donald Trump has now selected as his running mate JD Vance, who in a 2021 podcast boasted of his “100% prolife profile” and spoke out against exceptions to abortion bans in cases of rape and incest. He characterized the forced pregnancies imposed on these victims as merely “inconvenient.”
A vice presidential candidate and the Republican-controlled states regard the rights of women and girls not as “unalienable,” rights that are innate and non-transferable but as rights that a state can simply take from women and girls and transfer to fertilized eggs. The stringent controls on abortion these Republicans endorse should make perfectly clear whom they view as persons deserving of rights. Sadly, it’s not the women and girls whose rights they so brutally deny.
________________________________________________________________________________________________________
My thanks to Dr. Amy Bryant, a specialist in obstetrics and gynecology, who graciously answered my many questions about reproductive health. — Carol Burke