This essay considers current claims for prenatal personhood after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It first explains how the Dobbs decision unnecessarily adopts a binary view of prenatal life, suggesting that the only option for courts and legislatures is to recognize prenatal personhood or deny protection for prenatal life. This ignores popular understandings that certain laws can and should protect prenatal life, especially where criminal or tortious actions are concerned, but not grant full legal personhood. The Dobbs decision also refused to draw meaningful lines about the value of prenatal life in different stages of development, giving states vast power to infringe on the rights of people who are or may become pregnant beginning at fertilization. The decision also invites reconsideration of the Court’s prior holding that the zygote-embryo-fetus is not a legal person protected by the Constitution and invokes natural and human rights language to support the broader project of the prenatal personhood movement. The essay then describes the history of prenatal personhood in the U.S., considering failed Personhood Amendments and the places where recognition of limited prenatal personhood has made inroads in the shadow of Roe v Wade. It then examines and critiques current arguments for expansion of prenatal personhood.
Cynthia Soohoo, An Embryo is Not a Person: Rejecting Prenatal Personhood for a More Complex View of Prenatal Life, 14 ConLawNOW 81 (2023)