Blastocysts Are People, Too

The reactionary right believe that "fetal personhood" is a thing. Trump would make it so in a second term, thus criminalizing ALL abortions everywhere in the United States.

What makes a person a person? Is thinking being, as Descartes proclaimed? Or is it consciousness? How about free will—or, to use a more modern term, agency? Where does the soul fit into this discussion? Is a microscopic cell cluster lacking a brain, a heart, lungs, arms, legs, or genitals a person? And if not, when, exactly, does human life begin?

These are the sort of questions typically posed by navel-gazing middle school kids and extremely stoned first-year humanities majors. It is axiomatic that said brainless, heartless, lungless, armless, legless, dickless cell clusters are not people in the same way that, say, your accountant is a person, or Playboy’s Playmate of the Month for December 1997, or Ralph Macchio. To prove that one was not the other, Pythagoras would have shown a photograph of Xenophanes of Colophon next to a blown-up image of a blastocyst under the caption BEHOLD, the same way he proved his eponymous theorem. Arguing otherwise seems absurd.

But we’re at the point in the conservative counter-reformation at which definitive answers to these philosophical queries are urgently indicated. As explained at CROW, Jenny Cohn’s Substack, earlier this week, Donald Trump’s new “let the states decide” position on abortion rights is a ploy. The real plan being cooked up by the Leonard Leo crew is to have the Supreme Court rule “that a fetus qualifies as a ‘person’ under the due process and equal protection clauses of the 14th Amendment,” which would make federal law the rightwing fairy tale that any abortion is equivalent to murder.

“Fetal personhood,” as this ridiculous notion is ridiculously called, has been around at least since Roe v. Wade, when the concept was argued by the State of Texas. The Supreme Court wisely shot it down:

There are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.

The woke hippie jurist who wrote that paragraph was none other than Antonin Scalia, Clarence Thomas’s mentor and patron saint of the conservative legal movement. He thought it was flat-out wrong. So did Harry Blackmun, who concluded that the term “person” had “application only post-natally.” There are many gripes one can have about the legal basis for Roe, but “fetal personhood” is not one of them; both sides agreed that it was bunk.

But that’s not good enough for Leonard Leo and his extremist brethren. Robert “Robby” George, a professor at Princeton and a Leo chum, writing with Josh Craddock, an attorney and FEDSOC phenom, argue in a Federalist Society op-ed that “[i]t is Congress’s constitutional prerogative—indeed, its solemn obligation—to secure the equal-protection rights of our tiny brothers and sisters at the dawn of their lives.” (It’s months before sunrise and not “dawn,” because it’s dark in there, but you get the idea.) They write:

Although there may be additional constitutional avenues to protect the unborn, we believe Congress is on firm constitutional footing to enact life-protective legislation under Section 5 of the Fourteenth Amendment. Such legislation would be an appropriate remedy for state deprivation of the equal-protection rights to which unborn children are constitutionally entitled.

It is now well-established that when the Fourteenth Amendment was ratified in 1868, the word “person” had a settled public meaning that included children in the womb. And the Fourteenth Amendment specifically provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The original meaning of this clause was to secure (equal) protection of the fundamental rights of persons—including life and personal security—as these had been expounded in Blackstone’s Commentaries on the Laws of England and leading American treatises….If a state protects some persons in their rights of life and personal security, it is constitutionally required to do so for all persons—including the unborn.

Because state laws allowing elective abortion necessarily deprive a class of human beings—those at the earliest developmental stages—of “the equal protection of the laws,” they violate constitutional rights. Such laws expose a disfavored class of persons—unborn children—to lethal violence.

In making their case, they quote Rep. Thaddeus Stevens, the most ardent abolitionist in the House in the Reconstruction period, who said that Section 5 “allow[s] Congress to correct the unjust legislation of the States” so “that the law that operates upon one man shall apply equally upon all.”

I’m neither lawyer nor legal scholar, admittedly, but I’m pretty sure that the 14th Amendment, written as it was in the aftermath of the Civil War, was intended to protect emancipated Blacks from persecution and to guarantee their civil rights, especially in the South. The historian Manisha Sinha, in The Rise and Fall of the Second American Republic: Reconstruction, 1860-1920, makes it clear that Stevens and the other abolitionists did not want to merely eliminate slavery, but also to ensure that the formerly enslaved humans enjoyed the same civil rights as white Americans. In short, Stevens wasn’t talking about a fucking embryo.

With that said, the constitutional basis for fetal personhood is not as batshit as one might imagine. In “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”, a paper published while Craddock was still at Harvard Law, he asserts that Justice Blackmun erred in his interpretation of the word “person” in Roe, and goes to great lengths to prove it. He trots out British common law from the 13th century—you know: the Middle Ages, the same period of wondrous scientific accomplishment that gave us bleeding and the Black Death—and quotes the opinion of someone named Lord Coke (perhaps an ancestor of Charles and David?), who is so ancient he spells “child” with an “e” at the end:

In the eighteenth century, Coke’s [then 200-year-old] description “quick with child” (the point at which the child is first able to move, then considered to be the beginning of existence) was equated with “quickening” (the point at which the mother first feels fetal movement). This distinction was intended to protect prenatal life as soon as it could be discerned, not to exclude human life from protection prior to that point. Once again, “quickening was a flexible standard of proof—not a substantive judgment on the value of unborn human life.” The Roe Court made much of the quickening rule in its rush to dismiss the personhood of the preborn, but failed to see that the rule was merely a tool of criminal law, not a statement about the value of life prior to perceptible movement in the womb. The “quickening” distinction survived in common law until emergent medical science discovered “that human life began at fertilization,” allowing medical examiners to prove prenatal life and cause of death due to abortion with greater certainty. After this discovery in the early nineteenth century, British courts instructed jurors that “quick with child,” which had earlier meant “formed and animated,” now meant “from the moment of conception.” When determining whether to grant temporary reprieve from execution for a pregnant woman, for example, the court in Regina v. Wycherley reinterpreted common law to reflect that new scientific fact in 1838.

If the court in the very modern scientific year of 1838 agrees with something about human biology asserted by a Lord Chief Justice of England and Wales who was born in 1552, I guess that settles that! Craddock continues:

This revision of the common law to conform to this basic principle—that human life, where it exists, must be protected— informed the meaning of the term “person” in the United States at the time of the Fourteenth Amendment’s adoption. Thomas Percival’s influential and widely circulated nineteenth century work Medical Ethics declared, “[T]o extinguish the first spark of life is a crime of the same nature, both against our maker and society, as to destroy an infant, a child, or a man.” The American Medical Association’s 1859 report on abortion considered the human being in utero a person, and it called for protection of the “independent and actual existence of the child before birth, as a living being.” They decried the “unnecessary and unjustifiable destruction of human life” both before and after quickening, and they urged state legislatures to reform their abortion statutes. The Medical Society of New York in 1867 “condemned abortion at every stage of gestation as ‘murder.’”….At the time of the Fourteenth Amendment’s adoption, nearly every state understood “person” to include prenatal life. The inclusive meaning of “person” in 1860s state law should thus shape an originalist understanding of the Amendment.

“The legal regime that discriminates against preborn human beings,” he concludes, “should be abolished on originalist grounds.”

Aside from the fact that medical science is in a slightly better place than it was in Shakespeare’s day, there are plenty of cogent rebuttals to Craddock’s argument. First, from a purely biological standpoint, “life begins at fertilization” is hardly the universally-held truism they assert.

“As an embryologist and the author of a major textbook in embryology, I know that I can say very few things with absolute certainty,” writes Scott F. Gilbert in his article “Pseudo-embryology and personhood: How embryological pseudoscience helps structure the American abortion debate.” “However, one thing I can say with absolute and total certainty is this: There is no consensus among biologists as to when independent human life begins.” He argues that the “pseudo-science” trotted out by Craddock and his ilk is nothing more than a thin veil for misogyny. Here is his abstract:

There is a pseudo-embryology flourishing today, well nourished by popular science, religious ideologies, and the public media. Just as eugenics was a pseudoscience that influenced (and still influences) American popular culture and which was responsible for racist anti-immigration laws (such as the Immigration Restriction Act of 1924), pseudo-embryology is also influencing popular culture and legislation. This new pseudoscience promotes the belief that science supports current zygotic and fetal personhood movements as well as anti-abortion legislation. However, what often passes for science are actually ideological myths, often grounded in and supporting male superiority. Indeed, the first myth of pseudo-embryology is that fertilization is a masculine act that can be viewed as a classical hero narrative. The second myth is that fertilization is ensoulment, allowing it to displace the feminine act of birth as to when life begins. Here, DNA is seen to play the secular analogue of soul. The third myth is that the fetus in the womb is an independent autonomous entity and that birth merely moves the fetus from the womb to the outside world. This expresses the “seed-in-the-soil” myth that was also prevalent in ancient cultures. In this manner, masculine stories of fertilization are valorized while feminine narratives of birth are suppressed. So when public narratives discuss what “science” says about when human life begins, we are not really discussing science. Rather, we are allowing our discussions to fall back into tenacious ancient misogynist myths that have nothing to do with the conclusions of modern developmental biology.

David Orentlicher, a professor of healthcare and constitutional law, makes a different but no less effective argument in a blog post from 2015 called “Abortion and the Fetal Personhood Fallacy.” The fetal personhood argument is B.S., he explains, and “not just because people disagree about the beginning of personhood”:

While opponents of abortion typically characterize the procedure as a “killing,” it also can be viewed as a withdrawal of assistance. A pregnant woman seeking an abortion is saying that she no longer wants to give of her body to sustain the life of her fetus. And nowhere in American law do we require some people to give of their bodies to sustain the lives of other persons. We do not even require parents to donate their organs or their bone marrow to save the lives of their children.

If the law insisted that pregnant women continue their pregnancies until delivery, pregnant women would be singled out for a legal responsibility that no one else must assume. And that is something the U.S. Constitution does address. The equal protection clause protects people from being treated differently than other people.

Orentlicher points out that “the analysis changes at viability, for then the woman can withdraw her assistance while still allowing the fetus to survive.” That is where the line must be drawn, not at conception.

Even the libertarians think this is all cuckoo. Jonathan H. Adler, writing in Reason magazine, shoots down the “fetal personhood” argument:

The term “person” is used throughout the Constitution, including elsewhere in the 14th Amendment, and regularly in ways that can (and have always) only applied to those already born, such as Section 2 of the 14th Amendment, which bases apportionment on “the whole number of persons,” and makes reference to an individual’s age, which has always been counted from birth, not conception….

Even assuming that the unborn are persons within the Equal Protection clause, even as they are not persons for other parts of the 14th Amendment, there is a conspicuous problem that few states have ever treated abortion as fully equivalent to intentional homicide….[F]eticide was often not treated as the equivalent of intentional homicide (particularly prior to quickening, which was often treated as a misdemeanor, if prohibited at all). That is, states rarely adopted laws to protect the unborn equally with other persons.

Further, he writes, “The propriety of abortion was a highly salient policy question in the post-bellum period, and yet no one sought to connect this question to the 14th Amendment, or to argue that the failure to treat feticide as equivalent to homicide was a constitutional violation. The absence of a single dog barking, in any state, is more than conspicuous.”

I will add that if you freeze a fertilized egg, you can thaw it and implant it, and it may gestate into a living, breathing human baby. If you freeze a human being, said human will freeze to death. Not the same thing!

Finally: the picture at the top of this page is of a blastocyst. But I bet no one will realize that it’s a bovine blastocyst—a pre-cow cell cluster. If a life form is human, shouldn’t other humans be able to, like, tell?

However fringe and dangerous, this is the sort of argument reactionary attorneys will be making before a reactionary Supreme Court in the years to come. In a potential second Trump term, expect “fetal personhood” to become the law of the land.

Blastocysts are people, too!

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Photo credit: Pandal00m, Wikipedia. Bovine blastocyst. Nametag added by me.