John Oliver Exposes Fetal Personhood Laws: How Women Are Losing Their Constitutional Rights
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John Oliver Exposes Fetal Personhood Laws: How Women Are Losing Their Constitutional Rights
John Oliver dissects the dangerous expansion of fetal personhood laws across America, revealing how these regulations strip pregnant women of their autonomy and constitutional rights. From forced C-sections ordered via Zoom to jail time for miscarriages, Oliver documents the alarming ways states are treating fetuses as full legal persons while reducing pregnant women to "hosts." With hundreds of women arrested over pregnancy-related issues and false-positive drug tests tearing families apart, this investigation exposes a legal framework that prioritizes potential life over the lives of actual citizens. The piece examines cases from Alabama's IVF embryo ruling to Oklahoma's manslaughter charges for stillbirths, showing how fetal personhood laws create a two-tier citizenship where women become second-class the moment they conceive.
Fetal personhood has evolved from a fringe concept to mainstream anti-abortion advocacy following the Dobbs decision. Approximately one-third of states have established fetal personhood through law or judicial decision, granting full legal rights and protections to fetuses and embryos from conception. This legal framework treats a fetus as a separate unique human with its own rights distinct from the person carrying it.
The concept has deep roots in American politics. In 1984, Ronald Reagan articulated the core argument, stating his belief that unless someone can establish that the unborn child is not a living human being, that child is already protected by the Constitution which guarantees life, liberty, and the pursuit of happiness to all. However, when the Supreme Court decided Roe v. Wade, it explicitly rejected fetal personhood, stating the word "person" as used in the 14th Amendment does not include the unborn.
Despite this rejection, the Court left the door open by holding that states have an important and legitimate interest in protecting the potentiality of human life. This crack in the door allowed states to gradually expand protections for fetuses. Some states defined a person to include a fetus throughout their criminal codes, while prosecutors in other places expanded their use of child abuse and neglect laws to police the conduct of pregnant women.
Post-Dobbs Acceleration and Legislative Creativity
After the Dobbs decision, the guardrails fully came off as state legislators felt empowered to push much more aggressively for fetal personhood legislation. The arguments made in support of these laws have ranged from constitutional to creative, with some lawmakers offering particularly unusual justifications.
During a 2023 hearing, a North Dakota state legislator argued for fetal personhood by challenging anyone to show him the first kangaroo or plant that came out of a woman's womb. This bizarre reasoning exemplifies the disconnect between the medical and biological complexities of pregnancy and the simplistic frameworks being imposed by law.
The language used by some legislators reveals the underlying assumption that pregnant people are merely vessels. In 2017, an Oklahoma legislator referred to pregnant people as "hosts" when discussing abortion legislation. When questioned about this dehumanizing terminology, he defended himself by claiming he went to Webster's dictionary and couldn't find a better term. This language strips pregnant individuals of their humanity and reduces them to a function rather than recognizing them as full persons with rights and autonomy.
Criminalization of Pregnancy Loss
One of the most disturbing applications of fetal personhood laws involves the criminalization of miscarriages and stillbirths. Hundreds of women across the country have been arrested or lost custody of their children for reasons related to their pregnancies. The cases demonstrate how quickly the legal recognition of a fetus as a separate victim can be weaponized against pregnant individuals.
Brittney Watts, a 33-year-old Black woman from Ohio, went to the hospital multiple times after bleeding during her pregnancy. After returning home, she suffered a miscarriage and was subsequently charged with abuse of a corpse. In Alabama, a woman suffered a miscarriage after being shot and was then charged with manslaughter for the death of her unborn child.
Cherry Mason from Oklahoma tested positive for drugs at the hospital after a stillbirth and ended up taking a plea deal for manslaughter. Despite not believing she was guilty, she felt she had no choice, explaining in her words that she knew the way it works in Oklahoma. She received a 12-year prison sentence, which took her away from her other children, and was required to register with the state as a violent offender upon her release. According to prosecutors, they were making an example out of her.
Mason's daughter provided a devastating assessment of the situation, stating that her mother was more than an example and that the family needed her. She questioned whether the system truly wanted to help people with addiction or simply wanted to make people with addiction go away.
Forced Medical Procedures and Loss of Bodily Autonomy
Fetal personhood laws have led to situations where pregnant women lose control over their own medical decisions. Shereice Doy, a professional doula in Florida who had three prior C-sections, hoped to avoid a fourth. After 12 hours of labor in the hospital, she suddenly found herself in front of a Florida judge from her hospital bed.
A nurse wheeled in a tablet with a judge, doctors, lawyers, and others on Zoom. Video obtained by NBC News shows the 32-year-old Black woman in her hospital bed being pulled into a virtual emergency court hearing as Florida state attorneys on behalf of the hospital sought a court-ordered C-section. When Doy asked if she could call a lawyer or a patient advocate, the judge informed her that there's not a constitutional right to counsel in one of these proceedings.
The case exemplifies how fetal personhood laws can strip pregnant individuals of fundamental constitutional rights, including the right to refuse medical treatment and the right to legal representation in proceedings that will affect their bodies and their lives.
Drug Testing and Family Separation
Many hospitals drug test pregnant women and their newborns, often without their knowledge. In at least 27 states, hospitals are required by law to alert child welfare agencies about a positive test. The problem is compounded by the fact that drug tests can be notoriously inaccurate, with false positive rates as high as 50%.
One Connecticut woman, Katie, was told by a nurse after giving birth to her second child that her drug screen tested positive for opioids, specifically morphine. Katie had never taken any opiates or illicit drugs, but she had eaten an everything bagel before coming to the hospital that day. For nearly a month, Katie was only allowed supervised time with her children. Although she was breastfeeding, she had to leave her house at night, describing the experience as torture and pain she had never felt before.
One investigation found that in a six-year period, there were at least 70,000 referrals to law enforcement over alleged drug use during pregnancy across 21 states, a number which is almost certainly an undercount. In many cases, the referrals began with false positive results from flawed drug tests.
The Carrot and Stick Approach
Some lawmakers defend the criminalization of drug use during pregnancy by arguing that fear of jail time will encourage expectant mothers to get clean. One legislator explained the approach as using the carrot and the stick, with the stick being the threat of jail and losing custody, and the carrot being the ability to lead a normal life with one's child if the person tests negative and gets clean.
However, medical professionals point out significant flaws with this approach. First, quitting drugs cold turkey can cause complications that trigger miscarriage or early labor. Second, terrifying expectant mothers with the threat of jail time carries its own set of risks. Doctors emphasize that scaring mothers to the point that they don't come to get health care during pregnancy or don't disclose their drug use prevents them from getting the support and treatment they need, ultimately harming both mother and baby.
As one physician explained, putting the mom in jail and taking the baby away is not protecting the baby. There are many unsafe things women do during pregnancy, such as not taking recommended medication for diabetes, which can be very harmful to both mother and baby, but no one puts them in jail or takes their baby away for those behaviors.
The Wisconsin Case: When Honesty Becomes Criminal
A Wisconsin woman who had been using methamphetamine immediately stopped when she learned she was pregnant. She voluntarily checked into a hospital seeking help for depression and other issues. While there, a urine test came back positive for drugs. When doctors asked her about her past usage, she was completely honest with them.
Her decision to tell the doctors about her drug use was solely motivated by concern for her baby, hoping that if she had done anything wrong, doctors could provide treatment that would help. The ER doctor initially reassured her, saying that all that mattered was that she was there getting help and that her baby would be fine. However, everything changed after the doctor left the room.
When a social worker came into her room and told her there was a hearing and they needed her to come to the conference room right away, she was shocked. She found herself on a speaker phone with a judge. At the temporary physical custody hearing for her 14-week-old fetus, the fetus had a lawyer who was taking a position adverse to her interests and was represented by counsel, while she, who had asked for a lawyer, did not have one and was denied one.
The state didn't allow her to leave the hospital on the grounds that doing so was contrary to the unborn child's best interest. After she refused court-ordered inpatient drug treatment, she was jailed for 18 days, including about 36 hours in solitary confinement.
The Alabama IVF Ruling: Exposing the Double Standard
In a 2024 decision, the Alabama Supreme Court determined that frozen embryos qualify as people under state law, ruling that unborn children are children without exception based on developmental stage. The chief justice in a concurring opinion quoted the Bible, citing the sanctity of unborn life.
The case involved a patient who managed to access the freezer storing frozen embryos at an Alabama fertility clinic. The patient picked up multiple embryos and mistakenly dropped and destroyed them. The state's high court ruled that the patient could be held liable in a wrongful death lawsuit.
This ruling followed the fetal personhood argument to its logical conclusion. If every fertilized egg is a person, then every IVF clinic, which needs to produce many embryos to ensure success, would essentially be a warehouse where human beings regularly die. The ruling led to the pause of IVF services at some clinics in Alabama, creating an immediate crisis for families trying to conceive.
The intense public outcry following the ruling forced Alabama to quickly pass a law aimed at protecting patients and providers from legal liability when embryos are damaged or destroyed during IVF. This rapid reversal exposed the inability of fetal personhood advocates to defend the double standard between their stance on abortion and their stance on IVF.
Political Leaders Struggle with the Logic
Senator Tommy Tuberville of Alabama demonstrated the incoherence of the fetal personhood position when asked about the Alabama Supreme Court ruling. When asked if he had a reaction to the ruling that embryos are children, he responded that he was all for it, saying they need to have more kids and need the opportunity to do that.
When reminded that IVF is used to have more children and that IVF services were paused at some clinics in Alabama, Tuberville responded that this was for another conversation, while continuing to insist they need more kids and people need the opportunity to have them. When pressed on what he would say to women who no longer have access to IVF as a result of the ruling, he admitted it was a hard question, while still maintaining they want people to have that opportunity.
The exchange revealed the fundamental contradiction at the heart of fetal personhood advocacy: the unwillingness or inability to apply the logic consistently when doing so produces outcomes that are politically unpopular or practically unworkable.
The Creation of Second-Class Citizens
Legal experts and advocates point out that fetal personhood laws effectively create a two-tier system of citizenship. As one attorney explained, there is no way to add fertilized eggs, embryos, and fetuses to the Constitution without subtracting pregnant women. If laws treat fertilized eggs, embryos, and fetuses as if they're entirely separate persons, then women will be subjected to a permanent second-class status.
This framework strips women of fundamental rights and autonomy the moment they become pregnant. It creates a legal environment where the theoretical rights of a potential person take precedence over the concrete rights of an actual person. The pregnant individual loses the right to make decisions about their own medical care, the right to refuse treatment, and in many cases, the right to legal representation in proceedings that will determine what happens to their body.
Solutions and Paths Forward
Some legislators have introduced bills designed to highlight the absurdity of fetal personhood laws. Mississippi's "Contraception Begins at Erection Act" proposed imposing fines of up to $10,000 on those who discharge genetic material without the intent to fertilize an embryo, using satire to expose the one-sided nature of reproductive regulation.
More serious solutions include states repealing or removing fetal personhood language embedded in state law. When states do pass laws that recognize the loss of a pregnancy, they can do so without punishing the person who was pregnant. Ending secret drug tests in hospitals is another crucial reform. At one hospital in Connecticut, doctors are now directed to test only if doing so will inform medical care. Since that policy changed, unnecessary child welfare reports dropped by almost 50% without harming babies. Not a single baby has come into the hospital with uncontrolled withdrawal symptoms since the policy change.
For individuals who are pregnant and live somewhere where they're vulnerable to these legal perils, organizations like Pregnancy Justice and If/When/How run legal helplines that provide support and guidance.
The Stakes for Women's Rights
The expansion of fetal personhood laws represents a fundamental shift in how American law treats pregnant individuals. Even planned, relatively low-risk pregnancies are life and body-altering experiences. The ability to control one's own life and body throughout that experience is not a radical demand but a basic requirement of full citizenship and human dignity.
With approximately 5 million pregnancies in the US each year, about a million of which end in miscarriage and over 20,000 in stillbirth, the potential for these laws to criminalize normal biological processes and turn personal tragedies into legal nightmares is enormous. The framework treats pregnancy loss as inherently suspicious and pregnant people as potential criminals rather than as individuals deserving care, support, and the full protection of their constitutional rights.
The fight over fetal personhood is ultimately about whether pregnant people will be recognized as full citizens with complete bodily autonomy or whether they will be reduced to incubators whose rights are subordinate to the potential life they carry. As these laws continue to spread and evolve, the need for public awareness, legal advocacy, and legislative reform becomes increasingly urgent.
