Something that’s important to remember about last week’s ruling by the Alabama supreme court, which held that frozen embryos were persons under state law, is that the very absurdity of the claim is itself a demonstration of power. That a frozen embryo – a microscopic bit of biological information that can’t even be called tissue, a flick laden with the hopes of aspiring parents but fulfilling none of them – is equivalent in any way to a child is the sort of thing you can only say if no one has the power to laugh at you. The Alabama supreme court is the final court of review in that state. It cannot be appealed. For the foreseeable future, frozen cells in Alabama have the same legal status there as you or I do. Is this an absurd elevation of the status of an embryo, or an obscene degradation of human beings? The answer, of course, is both.
The decision immediately halted almost all IVF procedures in Alabama. Aspiring parents there – including women who had undergone rounds of injected hormone treatments and the invasive, gruelingly painful egg retrieval process in order to create the embryos – will now be unable to have the material implanted in an attempt to create a pregnancy. Hundreds of other frozen embryos – those that are not viable, or not needed by families that are already complete – can now not be destroyed as is typical IVF practice. They need to be continually stored in freezers, or what the Alabama supreme court refers to, in Orwellian style, as “cryogenic nurseries”, a term you almost have to admire for the sheer audacity of its creepiness.
But the concept of embryonic personhood, now inscribed in Alabama law, poses dangers well beyond the cruelty it has imposed on the hopeful couples who were pursuing IVF in Alabama, before their state supreme court made that impossible. If embryos and fetuses are people, as Alabama now says they are, then whole swaths of women’s daily lives come under the purview of state scrutiny.
Forget about abortion, which would automatically be banned as murder in any situation where fetuses are considered persons – Alabama already has a total abortion ban, without exceptions for rape, incest or health. Embryonic personhood would also ban many kinds of birth control, such as Plan B, IUDs, and some hormonal birth control pills, which courts have said can be interpreted as working by preventing the implantation of a fertilized egg. (In fact these methods work primarily by preventing ovulation, but facts are of dwindling relevance in the kind of anti-abortion litigation that comes before Republican-controlled courts.)
Further, if embryos and fetuses are children, then the state may have an interest in protecting their lives that extends to controlling even more of women’s daily conduct. Could a woman who is pregnant, or could be pregnant, have a right to do things that might endanger her embryo in a situation where an embryo is her legal equal, with a claim on state protection? Could she risk this embryo’s health and life by, say, eating sushi, or having some soft cheese? Forget about the wine. Could she be charged with child endangerment for speeding? For going on a jog?
These scenarios might sound hyperbolic, but they are not entirely hypothetical. Even before the Alabama court began enforcing the vulgar fiction that a frozen embryo is a person, authorities there had long used the notion of fetal personhood to harass, intimidate and jail women – often those suspected of using drugs during pregnancies – under the state’s “chemical endangerment of a child” law, using the theory that women’s bodies are environments that they have an obligation to keep free of “chemicals” that could harm a fetus or infringe upon its rights.
Using this logic, police in Alabama, and particularly in rural Etowah county, north-east of Birmingham, have repeatedly jailed women for allegedly using drugs ranging from marijuana to meth while pregnant – including women who have claimed that they did not use drugs, and women who turned out not to be pregnant. In 2021, Kim Blalock, a mother of six, was arrested on felony charges after filling a doctor’s prescription during a pregnancy; the state of Alabama decided that it knew better than her doctor, and they could criminalize her for following medical advice.
This is not an extreme example: it is the logical conclusion of fetal personhood’s legalization – the surveillance, jailing and draconian monitoring of pregnant women, an exercise in voyeuristic sadism justified by the flimsy pretext that it’s all being done for the good of children. Except there are no children. Lest this seem like an idea that will necessarily be corrected by political response, or by the ultimate intervention of a federal court on the question, remember that Samuel Alito’s majority opinion in Dobbs referred repeatedly to “unborn human beings”.
There are several ways this supreme court could ban abortion nationwide, and they do not need to enforce fetal personhood to do so – many rightwing organizations, for instance, are encouraging federal courts to revive the long-dormant Comstock Act, from the 1870s, to ban all abortions. Nor will the ultimate national abortion ban necessarily even come from the courts. Any future Republican president will be under enormous pressure to enact a national abortion ban, and they will have many means at their disposal to do so even without congressional cooperation, be it through the justice department or through the FDA. Donald Trump, the Republican nominee in all but name, has floated the idea of a 16-week national ban – a huge restriction on women’s rights nationwide that would undoubtably be just the opening salvo for even further rollbacks. Meanwhile, his nominal rival, Nikki Haley, responded to the news of the Alabama court ruling by voicing approval of fetal personhood. “Embryos, to me, are babies.”
Let’s be clear: they are not. An embryo is not a child. Neither is a fetus. Treating them as such is a legal absurdity that degrades human life and insults the reality of parenthood. But most importantly: there is no notion of when personhood begins that is compatible with women’s citizenship other than birth. If personhood begins while a pregnancy is ongoing – if a person, that is, can be someone enclosed entirely inside another person’s body – then the competition of rights will be humiliatingly, violently, brutally one-sided. None of the opportunities, freedoms or responsibilities of citizenship are available to someone whose body is constantly surveilled, commandeered and colonized by the state like that. No citizenship worth its name can belong to someone who cannot even wield within the bounds of her own skin.
It is humiliating to even have to say this: that women matter more than fetuses or embryos, that a frozen cell in a petri dish is not a human being, but we are. It is an absurdity to make this argument, an exhausting waste of our time, a degradation. That, too, is part of the point.
Moira Donegan is a Guardian US columnist
