Pleading the Belly is Heading for a Return

Matthew G. Saroff
2 min readJul 22, 2022

This is an old article, 2019, but it appears that when states pass fetal personhood laws, they create a situation where detention of the mother violates the due process rights of the fetus.

This means that imprisoning a pregnant woman is illegal incarceration:

On Tuesday, [May 7, 2019] Georgia Republican Gov. Brian Kemp signed a “fetal heartbeat” bill that seeks to outlaw abortion after about six weeks. The measure, HB 481, is the most extreme abortion ban in the country — not just because it would impose severe limitations on women’s reproductive rights, but also because it would subject women who get illegal abortions to life imprisonment and the death penalty.

The primary purpose of HB 481 is to prohibit doctors from terminating any pregnancy after they can detect “embryonic or fetal cardiac activity,” which typically occurs at six weeks’ gestation. But the bill does far more than that. In one sweeping provision, it declares that “unborn children are a class of living, distinct person” that deserves “full legal recognition.” Thus, Georgia law must “recognize unborn children as natural persons” — not just for the purposes of abortion, but as a legal rule.

This radical revision of Georgia law is quite deliberate: The bill confirms that fetuses “shall be included in population based determinations” from now on, because they are legally humans, and residents of the state. But it is not clear whether the bill’s drafters contemplated the more dramatic consequences of granting legal personhood to fetuses. For instance, as Georgia appellate attorney Andrew Fleischman has pointed out, the moment this bill takes effect on Jan. 1, 2020, the state will be illegally holding thousands of citizens in jail without bond. That’s because, under HB 481, pregnant inmates’ fetuses have independent rights — including the right to due process. Can a juvenile attorney represent an inmate’s fetus and demand its release? If not, why? It is an egregious due process violation to punish one human for the crimes of another. If an inmate’s fetus is a human, how can Georgia lawfully detain it for a crime it did not commit?

The overturn of Roe v. Wade will have more unintended consequences than perhaps any court decision in a generation.

This was foreseeable, and foreseen, years ago, but the radicals on the court do not care. They saw a chance to roll back the civil rights, worker protections, and government authority to regulate.

What they really want to do is bring us back to the Lochner era, where the court invented the liberty of contract, where the government was forbidden to regulate commerce in any meaningful way, because ……… Freedumb!

H/t Naked Capitalism