Although the Supreme Court ruling that overturned Roe v. Wade last month was not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth, as Justice Samuel Alito wrote, the ambiguity of the post-Roe reality has some people confused.
A pregnant Texas woman recently claimed her unborn baby is a person when she was pulled over by police while exiting a high occupancy vehicle lane on a Dallas highway.
Brandy Bottone, of Plano, Texas, was 34 weeks into pregnancy when she was stopped by the Dallas County Sheriff’s Department on June 29, The Dallas Morning News reported on July 8.
A police officer peeked into her car and asked her if there was anybody else in it.
“I pointed to my stomach and said, ‘My baby girl is right here. She is a person,’” Bottone reportedly said.
The officer replied that there should be a second person outside of her body in the vehicle, according to HOV lane rules. Bottone argued that her unborn child was a living human being according to “the new law” and according to “everything that’s going on with the overturning of Roe v. Wade.” She also referred to the Texas Penal Code.
Bottone was given a ticket for $215 that she says she will fight in court on July 20.
Northeastern University law professor Jeremy Paul says that Bottone might be confused about the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization case that overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey rulings last month.
“The recent Supreme Court case that overturned Roe does not conclude that the fetus is a person,” Paul says.
In Dobbs, the Supreme Court concluded that the U.S. Constitution does not confer a right to abortion and the authority to regulate abortion is returned to the people and their elected representatives. Individual states are now free to regulate abortions and even outlaw them, Paul says.
The Texas Penal Code defines an individual as a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth; however, the Texas Heartbeat Act, or Senate Bill No. 8, that went into effect in September 2021 and imposed a six-week abortion ban, does not address the fetus personhood.
Bottone is making an important category error, Paul says.
“If the [Supreme] Court had concluded that the fetus was a person from the moment of conception, then all abortions would be illegal, because they would be killing someone,” Paul says.
There are a lot of people in the U.S. who wanted the court to go much further and push the law in the direction of bestowing personhood on a fetus, Paul says, but they probably did not anticipate the HOV lane angle.
“That is a real issue. It’s not funny. It is something that many people in the anti-choice movement have been dreaming about for decades,” Paul says. “I don’t think there are five votes for it on the court now.”
That could change if there are no more retirements from the Supreme Court and President Joe Biden gets no more appointments, and a new Republican president comes in after him, Paul says.
“Many states are already moving in that direction. So far, Dobbs does not conclude that they will be able to do so,” he says. “There will be a lot more litigation to figure all that out.”
Paul believes that Bottone shouldn’t be punished if she mistakenly thought that her fetus was legally a person.
“She was confused,” he says.
HOV lanes exist to encourage people to carpool, Paul says, and even driving one’s child is not carpooling.
“A fetus shouldn’t count,” he says. “The fetus doesn’t even take up another seat in the car.”
The question of the personhood of unborn children might have all kinds of legal consequences. If the states move in that direction they might have to decide on such issues as a state tax deduction for an unborn child or whether a fetus could be considered a living heir in case of a will.
In some cases involving the loss of a fetus, many people use their intuition about what is right and what is wrong, regardless of their stance on abortion, Paul says. For example, in some states if somebody physically assaults a pregnant woman and the fetus dies, the attacker could be prosecuted for murder.
“Depending on the circumstance, there are many people who are pro-choice who believe that a woman ought to be able to decide to have an abortion, who are nonetheless completely fine with punishing a criminal who assaults a woman causing the death of the fetus even if the fetus is at a young [gestational] age,” Paul says.
To assume that the first day of conception of a fetus is the same thing as a full-born baby is a religious belief, Paul says.
“And I don’t think people should be able to impose their religious beliefs on others,” Paul says.
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