In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the issue of abortion is once again at the forefront of the court’s docket. Two upcoming cases will address key issues related to access to medication abortion and lifesaving care for pregnancy emergencies. These cases highlight the ongoing debate over abortion in America and suggest that Dobbs did not settle the issue — it merely generated a new set of questions. One question that arises is the concept of fetal personhood, which posits that a fetus is entitled to the same rights and protections as any other person.
The first case, F.D.A. v. Alliance for Hippocratic Medicine, challenges the Food and Drug Administration’s regulations surrounding mifepristone, a drug used for medication abortions. The case argues that the F.D.A. unlawfully relaxed restrictions on the drug in 2016 and 2021, which could impact access to medication abortion nationwide. The second case involves the Emergency Medical Treatment and Labor Act (EMTALA) and its interaction with state laws that restrict abortion. At the center of this case is the question of whether pregnant patients experiencing emergencies at federally funded hospitals are entitled to abortion care, even under state laws that severely limit access to abortion.
Both cases involve high-stakes issues for pregnant individuals and offer the court an opportunity to shape abortion access in the post-Roe era. The cases may also set new ground for fetal personhood, with arguments suggesting that a fetus is a person with rights. If the court adopts this view, it could fundamentally change the legal landscape surrounding abortion and reproductive rights, shifting the focus to the rights and entitlements of the fetus in the context of state and federal law.
The rising prominence of fetal personhood is evident in legal cases across the country, with language referring to fetuses as “unborn children” and framing abortion as an act that harms the fetus. This shift has implications beyond abortion, potentially impacting access to contraception, assisted reproductive technology, and other reproductive rights. The Florida Supreme Court’s consideration of fetal personhood in a proposed ballot initiative demonstrates the broad reach of this concept and its potential to impact laws related to reproduction and pregnancy.
President Biden has pledged to restore Roe v. Wade as the law of the land in response to the changing landscape of reproductive rights. The court’s decisions in these cases will have far-reaching implications for access to abortion, medication abortion, and reproductive care. As the legal framework around abortion evolves, questions of fetal personhood and reproductive rights will continue to shape the debate over abortion access in the United States.
