Recently, the Utah House of Representatives passed a bill that would have allowed pregnant women to use the high-occupancy vehicle (HOV) lane. The Utah Senate rejected this bill. HOV lanes are intended to reduce traffic congestion and help the environment. They have no further ambition. Bills like this are really attempts to imbue a fetus with rights and interests to make an anti-abortion claim. Reasonable people would no more favor a solitary pregnant woman in an HOV lane than to expect that same woman buy two tickets for the movies.
An attempt at a similar argument is underway in South Carolina, but instead of a traffic citation, the stakes are significantly higher. Members of the South Carolina State House are advancing House Bill (HB) 3549, known as the “South Carolina Prenatal Equal Protection Act of 2023.” This bill aims not only to abolish abortion in the state, but also to make abortion a homicide in some circumstances. The bill seems to rest on the idea that personhood begins at the moment of conception. Based on this, the bill makes a further claim about equal protection and the due process owed to all people.
The argument that a fetus is a person and thus is entitled to protection is not new. Advocates of this position believe fetal personhood will be the legal linchpin that will cause the collapse of abortion rights in South Carolina. I am a steadfast opponent. Let me explain what HB 3549 gets completely wrong about the law.
Understanding the Legal Meaning of Murder
It is reasonable to expect that laws protect people from being killed. However, not all killing is considered murder; murder is something quite particular in the eyes of the law. According to the South Carolina Code of Law, section 16-3-10, murder is defined as the killing of a person with malice aforethought, either expressed or implied. For an act to be criminal, a person must have both committed a guilty act, actus reus, and possess a guilty mind, mens rea. In the case of murder, mens rea must be proved to meet the requirement of malice. A conviction in a murder trial requires a finding of both actus reus and mens rea. If convicted, the punishment is prison. In some states, including South Carolina, that punishment might also be death by execution.
People kill other people in a wide variety of situations, some intentional and some related to negligence — and again, not all defined as murder. Police kill people who are in the midst of a crime or suspected of criminal intent, and they often do so with impunity. Soldiers kill in war. We also kill people in self-defense, sometimes as related to Stand Your Ground laws. South Carolina last executed a prisoner by lethal injection in 2011. In 2019, the South Carolina senate voted to bring back the electric chair and firing squad as other execution options. When execution is the punishment, personhood does not protect a prisoner from being killed by the state.
In other cases, killing is unrelated to any crime held up as justification. As an ICU physician, I take instruction from my patient’s reasonable proxy. That proxy can direct me not to resuscitate, which results in the death of the patient. Some people might consider this to be killing. Assisted suicide is legal in 10 U.S. states and the District of Columbia. Some countries like Canada, Belgium, and Switzerland practice active euthanasia, which kills thousands of people every year. These situations further demonstrate that, counter to the logic of HB 3549, not all acts of killing are defined as murder, and even individuals who are indisputably considered persons before the law are not always protected by the law from being killed. In cases where individuals cannot give an opinion about their desire to live and under what circumstances, proxies, usually those legally considered their next of kin, are allowed to make decisions on their behalf.
The Legal Problem With the Prenatal Equal Protection Act
Hence, HB 3549 is based on a fundamental misunderstanding of the law and its relationship to personhood. It is well known that all persons do not always enjoy equal rights. Indeed, simple personhood bestowed on the product of conception does not imbue that “person” with the status of sui juris, the legal term indicating full age and capacity to make decisions and agreements uncontrolled by any other person. The court does not consider a child sui juris — the same would apply to an embryonic person. Embryonic personhood raises interesting legal questions, but to claim embryos cannot be murdered because of personhood is sophistry. Indisputably, an embryo does not have decision-making capacity, nor can it ever express opinions and experiences that a court might consider. Therefore, even if we grant legal personhood to the embryo, we need proxies to make these decisions at the very beginning of life, just as we do at the end. Pregnancy is a state of partnership of interests, and in a situation where an embryo cannot articulate its own claims, the other stakeholder in the partnership — the embryo’s next of kin — is the logical proxy.
The ramifications of HB 3549 are particularly troubling due to criminal law’s doctrine of joint enterprise, which holds all conspirators in a criminal act to be equally liable. According to South Carolina’s “hand of one, hand of all” law, all accomplices are treated as equally liable regardless of their specific roles in the crime. If HB 3549 becomes law, all parties that “conspire” together for an abortion would be equally liable and face equal consequence. Now the state may, as punishment, execute the woman who underwent the abortion, the male partner who caused the pregnancy (provided he conspired to obtain an abortion), the doctor who performed the abortion, the doctor’s assistant, the receptionist, the friend that counseled the pregnant woman to seek an abortion, and anyone else who knew of and helped set up the abortion. In cases of medication abortion, the pregnant woman may seek information about which medications to take and how to obtain them from her doctor or simply the Internet. This trail of inquiry could be found, and those individuals might also face the death penalty.
What is the justification for this multiplication of killing? Some make religious arguments for making abortion illegal, but HB 3549 claims to present a secular legal argument about personhood. In reality, it gets the law completely wrong by eliminating the useful doctrine of sui juris developed in the common law centuries ago. In so doing, it undermines the legal apparatus in place to protect children’s well-being through the granting of parental rights. Thus, HB 3549 will create uncertainty in the legal treatment and status of children, and could potentially open the door to the execution of many adults. To what end? Granting an embryo the status of full legal personhood is, in reality, just another fraudulent way to suppress the decision-making of women.
Joel Zivot, MD, MA, JM, is an associate professor of anesthesiology and surgery at Emory University School of Medicine in Atlanta. He is also a senior fellow in the Emory Center for Ethics, and has held an adjunct appointment in the Emory School of Law.