While Congress worked on its tax reform bill, a small provision of the House version of the proposed statute triggered an angry reaction from pro-choice advocates. The provision would allow a tax deduction if expectant parents invested money in a higher education fund for their developing offspring. The provision is controversial because it uses the phrases “unborn child” and “child in utero” to refer to the future higher-education-fund beneficiary of the tax-deductible contributions.
What Is Motivating the Language?
In constitutional law, examining a government actor’s intentions can be central to determining whether he or she has violated someone’s rights. In the Equal Protection context, an unintentional action that happens to have a disparate impact on women or on African Americans does not, under Washington v. Davis, qualify as a violation. Intent is required. In the free speech area, neutral laws neutrally enforced that incidentally burden speech are far easier to defend than laws that specifically target speech. In the abortion area, things are a little different in that, under Planned Parenthood v. Casey, laws that have either the purpose or the effect of unduly burdening the exercise of the right to abortion violate the Due Process Clause of the Fourteenth Amendment. For abortion rights, purpose and effect matter equally, at least in theory.
Why do I mention the importance of intent in constitutional law? Because it is quite likely that the House bill provision’s use of the words “unborn child” and “child in utero” to refer to a fetus in the womb is intended to promote the pro-life/anti-abortion view of the embryo and fetus. Indeed, elsewhere, the same provision of the tax bill says expressly that “[t]he term ‘child in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.” A person, on the theory expressed here, exists from the moment of conception. Given that Republicans have crafted the bill and that Republicans have been committed to the pro-life/anti-abortion cause for about forty years now, it seems logical to conclude that this language seemingly equating a zygote with a born child means what it says. Presumably, drafters intended the inclusion of such language to provide a foundation in the law for later attempts to curtail women’s rights to terminate their pregnancies.
Would that be enough to make the provision unconstitutional? Probably not. A provision can be motivated by opposition to abortion without itself representing an attempt to burden the exercise of the right to abortion, unduly or otherwise. The legislators who inserted the “unborn child” provision into the bill were undoubtedly trying to please pro-life/anti-abortion constituents. The effort, however, manifested itself through the use of language that resonated for such people. The use of this language does not in any direct way affect people’s ability to obtain an abortion, and it is unclear how the drafters would have imagined it would. If someone wanted to go to a clinic where doctors perform abortions, nothing about the language in the tax bill would threaten to impede her ability to do so.
Should Abortion Rights Proponents Nonetheless Resist the Language?
Plainly, abortion rights advocates found the language about unborn and in utero children offensive. And indeed, one argument for the right to abortion—the contention that a rights-holding entity does not exist until late in pregnancy or at birth—seems at odds with references to the embryo or fetus as a “child” from the moment of conception. Arguments for abortion rights that rely entirely, by contrast, on the woman’s entitlement to restore her bodily integrity are perfectly consistent with the notion that pregnant women are carrying “children” around with them.
But even those who believe that they must rest on the non-personhood of the embryo/fetus to defend abortion rights need not have worried about the use of “child”-centered language in the bill. Why not? Consider who would have utilized this legal provision: people who had a baby “on the way” that they planned to keep. No one who was planning to have an abortion was going to be investing in a college fund for her embryo or fetus. Only those experiencing or co-parenting with someone experiencing a wanted pregnancy would be putting money away for their offspring’s college tuition.
So what? Couldn’t pro-choice people still be offended by attributions of personhood that extended to embryos and fetuses, even if no one wanted to terminate those particular embryos or fetuses? Of course they could, but there is good reason for them not to have been.
A friend and co-panelist with me on two different panels, Charles C. Camosy, ethics professor at Fordham University, has argued for the personhood of fetuses, in part by saying the following: when people speak of a woman who is pregnant, they might speak of her “baby bump” but never of her “fetus bump.” And when women go to the doctor for prenatal care, they ask the doctor “how’s my baby?” rather than “how’s my fetus?” Only when people speak of abortion do they refer to fetuses, he suggested. Fetus talk is a way that people have of distancing themselves from the intended victims of their violence.
I think Camosy is onto something here. People do refer to baby bumps when referring to other women’s pregnancies, and they talk about babies rather than fetuses when they discuss their own pregnancies that they intend to keep. I would disagree respectfully with Camosy, however, on the interpretation of why they do this. I would argue that it is not because people consider an early fetus to be a moral person, equal in worth to a newborn baby. It is instead because once you know you are going to give birth to a baby, you begin to imagine that what is growing inside you is already that baby; this is a way of getting excited about a wanted pregnancy. For the same reason, as I have discussed elsewhere, people who lose a wanted pregnancy may grieve over the loss of the child that the embryo or fetus would have become, a loss of potential rather than of an actual child. And spectators to a pregnancy refer to a “baby bump” for similar reasons—they too are imagining the baby whom the pregnancy will, so far as they know, ultimately produce.
If women pregnant with wanted pregnancies like to think of their potential offspring as babies and children, then the language in the House version of the proposed legislation would resonate with their experience. They might put money away and then say to their bellies, “this is for you to go to college someday.” Those people, on the other hand, with no desire to remain pregnant would be able to terminate their pregnancies without ever thinking about the tax provision in question. And when later debates over provisions that could actually burden the right to end a pregnancy came up, the “child” language in the proposed tax law would likely have made little if any difference. Mothers-to-be could pretend all they wanted that they were carrying a child from the moment of conception, and they would be unlikely to change their minds about the proper legal status of abortion just because the language in a tax law resonated with that pretense.
I think have either the purpose or the effect of unduly burdening the exercise of the right to abortion violate the Due Process Clause of the Fourteenth Amendment can have serious bite. The purpose and effect language also arose in the context of same sex marriage. But, other than your good remarks, the basic point here might be that the US Supreme Court has said the government can selectively promote childbirth. This includes paying only for Medicaid costs toward childbirth. So, this won’t constitutionally under current doctrine be an issue probably.
I personally think the personhood of an embryo and fetus grows as it develops (Prof. Colb noted in the past, including in a book she co-wrote, that she puts a special emphasis on consciousness here). This might warrant a certain amount of protection but doesn’t make a one week embryo a “person.” And, even if a person is at issue, there is at most a weighing of rights, a point raised as early as the oral argument of Roe v. Wade.