Does a fetus count in the HOV lane? Texas' abortion law creates new questions about legal personhood

ByPooja Salhotra, The Texas Tribune
Tuesday, September 13, 2022
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When the officer pulled over Brandy Bottone, he asked who else was with her. "'Uh, this!'" Bottone said, pointing to her belly. He gave her a $275 ticket.

When a pregnant North Texas woman was pulled over for driving alone in a high-occupancy vehicle lane, she protested.

"I just felt that there were two of us in [the car] and I was wrongly getting ticketed," the driver, Brandy Bottone, told The Dallas Morning News in July.

Bottone argued that under Texas' abortion laws, which went into effect after the U.S. Supreme Court overturned the constitutional right to abortion, a fetus is considered a living being. She argued the same should be true when it comes to the state's traffic laws.

"I'm not trying to make a political stance here," Bottone said, "but in light of everything that is happening, this is a baby."

Dallas County officials are now facing unprecedented legal questions about what defines "personhood." While the district attorney's office dismissed Bottone's first citation, she was ticketed a second time in August.

READ MORE: Texas mother argues unborn baby should count as passenger in HOV after ticket violation

Legal experts, meanwhile, warn that this traffic incident is just a small piece of a larger puzzle considering what it means to treat a fetus the same as a person. Debates about "fetal personhood" have been happening nationwide since the 1960s, when many abortion opponents started championing the idea. In Texas, abortion opponents are divided over whether a fetal personhood law is worth pursuing. But the concept is gaining traction nationwide and could become increasingly salient in Texas, where nearly all abortions have been banned and fetuses already have some legal rights.

"Historically, conversations about fetal personhood have been about introducing increasingly harsh penalties for people who either perform abortions or 'aid and abet' abortions," said Mary Ziegler, a legal historian focusing on abortion at University of California Davis School of Law. "That isn't the only way you can think about personhood."

An expansive concept

During the 1960s and '70s, abortion opponents pushed for an amendment to the U.S. Constitution that would define life as beginning at the point of fertilization. Such an amendment would have automatically criminalized abortion across the country. But it would also raise all sorts of new questions such as whether a fetus should be included when determining child tax credits, in census counts - or even as a passenger in an HOV lane.

Critics say that lawmakers haven't fully considered these thorny legal questions. Georgia is the only state with a "fetal personhood law" in effect, according to The Guttmacher Institute, and that state is still trying to figure out exactly how to apply that law.

Kimberley Harris, who teaches constitutional law with an emphasis on reproductive rights at Texas Tech University School of Law, warns that the ultimate impact of fetal personhood laws would be to regulate the decisions of pregnant people.

"If the fetus is now a person," Harris said, someone who consumes alcohol while pregnant "could be guilty of child endangerment."

"You could potentially be guilty of manslaughter or murder if you had a miscarriage and weren't taking proper precautions," she said.

Already, such cases are underway in states like Alabama, where voters have adopted a constitutional amendment protecting fetal rights. The state can legally sentence women to up to 99 years in prison for using drugs during pregnancy and then miscarrying. At least 20 women in the state have faced the harshest possible criminal charges for using drugs and then suffering pregnancy loss, The Marshall Project reported.

Rebecca Kluchin, a reproductive health historian at California State University, Sacramento, said that fetal personhood laws hark back to the era of forced sterilization, when states could forcibly sterilize people deemed unfit to procreate. She said that if fetal personhood is more widely recognized, more women could be forced to undergo unwanted medical interventions, such as cesarean sections, if a doctor believes that treatment is in the interest of the fetus.

"A doctor can say, 'You need this to save your fetus,' and it doesn't matter what you want," Kluchin explained. "And that takes women's ability to consent out."

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No U.S. or Texas laws on fetal personhood

Although a constitutional amendment granting fetal personhood has been introduced more than 300 times in Congress, it has never gained significant traction. The U.S. Supreme Court has also declined to weigh in on fetal personhood. In the recent Dobbs decision, Justice Samuel Alito wrote: "Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth."

At the state level, lawmakers in several conservative states have championed fetal personhood laws, though only Georgia's and Arizona's have passed, and Arizona's is currently blocked by a judge.

Texas Rep. Steve Toth, R-The Woodlands, filed a bill in the last legislative session that would provide due process to a fetus. That bill died in committee.

Toth did not respond to an inquiry about his agenda for the upcoming session.

State Rep. Greg Bonnen, R-Friendswood, filed a bill last year that would allow families to apply for "life certificates" for their "preborn child." Similar to a birth certificate, the document would acknowledge the personhood of a fetus, although it's unclear what types of rights such a certificate would grant. That bill died on the House calendar.

RELATED: 'I had to carry my baby to bury my baby': Woman says she was denied abortion for fetus without skull

Texas' abortion opponents remain divided

While certain conservative legislators are advancing bills granting legal rights for the fetus, anti-abortion activists said fetal personhood is not a priority. John Seago, president of Texas Right to Life - a statewide anti-abortion organization - said that while he ethically supports fetal rights, he is more focused on ensuring that current abortion laws are enforced.

"We have district attorneys who are not enforcing pro-life laws," Seago said. "And so instead of adding a new law, we need to enforce what's already there."

At Texas Alliance for Life, another anti-abortion nonprofit organization, president Joe Pojman said he did not support Toth's personhood bill because fetuses already have sufficient rights in Texas.

"I didn't see anything that was not already in the Texas law," Pojman said, adding that references to fetal rights are scattered throughout Texas' legal code. Texas' Estates Code, for example, protects inheritance rights for fetuses. And Texas' Advance Directives Act, which would allow a doctor to end life support for certain patients, does not apply to pregnant women.

For nearly 20 years, Texas has also afforded fetuses legal rights when it comes to criminal cases. The Texas Penal Code was updated in 2003 to identify an "unborn child at every state of gestation from fertilization until birth" as an individual for cases of murder and assault. That law has been upheld by Texas' highest criminal court of appeals, allowing the state to prosecute individuals who cause the "death of or injury to an unborn child." In one recent case, a Texas man was imprisoned for life without parole after being found guilty of capital murder. A jury found the man guilty of causing the death of his ex-wife's 5-week-old fetus.

READ MORE: Texas trigger law banning almost all abortions in effect now

Since Texas banned all abortions, a person could conceivably be prosecuted for capital murder for performing a medical procedure that was legal just three months ago. Texas law explicitly exempts the pregnant patient from being charged with murder in the death of their fetus. And no prosecutor has yet tried to use the capital murder charge for abortion. Experts say prosecutors are more likely to charge Texas abortion providers under the state's trigger law, which makes performing an abortion punishable by up to life in prison.

Eleanor Klibanoff contributed to this article.

Disclosure: Texas Tech University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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