Since the landmark U.S. Supreme Court Roe v. Wade decision, which served to legalize abortion nationwide in 1973, there have been legal fights that alternately seek to expand or reduce the protections granted after the case.
A common battleground on that front is the concept of fetal personhood — the legal theory that a fetus has the same legal rights as a person. A 2010 legal review on the topic describes the politics surrounding the debate:
The law is not clear on exactly who or what counts as a person [...]. Pro-choice advocates worry that, if the law declares the fetus a "person," then the war for reproductive rights will be lost. The pro-life population, on the other hand, welcomes such an interpretation as a means to wage their own war on the legality of abortion.
The latest effort to instate legal precedent for fetal personhood, media reports have argued, was quietly added to the two GOP-sponsored tax-reform bills currently under consideration in the House and in the Senate, though the Senate later repealed this language prior to passing their final version on 2 December 2017.
At issue is a somewhat obscure proposal regarding beneficiaries to what are termed “529 plans” (also known as qualified tuition programs), which are savings funds for college tuition. The new tax bills would make it explicitly legal to list an “in-utero” unborn child as a beneficiary to such saving funds. A description of the change in the Senate Bill describes the proposal:
The proposal specifies that nothing in Code section 529 shall prevent an unborn child from qualifying as a designated beneficiary. For these purposes, an unborn child means a child in utero, and the term child in utero means a member of the species homo sapiens, at any stage of development, who is carried in the womb.
The House Bill, which was passed on 16 November 2017, includes an effectively identical provision. Responding to this and other provisions within the GOP tax plans, the pro-life Susan B. Anthony List expressed their support for this measure, arguing it allowed earlier college savings for a family:
By this simple measure, more families will start accruing the benefits of a 529 account earlier in the child’s life.
This — according to language in the Senate’s own markup of their tax bill — is misleading, as there was nothing to stop one from opening an account in a guardian's name and later transferring it to a child once they were born. Under existing law:
The person or persons who make the contributions to the account need not be the same person who is regarded as the account owner for purposes of administering the account. Under many qualified tuition programs, the account owner generally has control over the account or contract, including the ability to change designated beneficiaries and to withdraw funds at any time and for any purpose.
We spoke with University of California, Irvine Director of the Center for Biotechnology and Global Health Policy and Professor of Law Michele Goodwin about other potential reasons for the new language. She told us via email that such measures are an attempt to suggest a conflict between women’s constitutional rights and the theoretical rights of an embryo or fetus:
Placing this language in the bill is a strategic political effort that further highlights an escalating trend and effort to constrain and curtail full reproductive health and rights of American women. [...] The term used in the bill, "unborn," is not a medical or scientific distinction, but a political one. Politicians are now seeking to grant the "unborn" legal rights, but primarily in relation only to women. [...]
Substantively, these efforts not only seek to grant legal rights and identities to embryos and fetuses, but they also seek to frame a conflict of interest between women, endowed with constitutional rights, and an embryo or fetus such that legislators will claim there is no difference in the legal status between a pregnant woman and fetus.
Numerous other measures have been passed at both the state and Federal levels that — in effect — bestow rights on the unborn, though this is the first effort to use the tax code for that purpose. According to a 2015 review, 38 states currently have fetal homicide regulation allowing some level of criminal protection for the unborn, and 23 of these states have laws that protect the fetus from conception until birth. On the federal level, the Unborn Victims of Violence Act — signed into law by George W. Bush in 2003 — provides some rights to the unborn in essence by treating the murder of a mother and an unborn child as two separate offenses.
Because the language included in the GOP’s 2017 tax overhaul legislation does not explicitly state a goal of creating legal precedent or fetal personhood, but because it implicitly does this through otherwise unnecessary regulation, we rate the claim that “fetal personhood” language is included in the 2017 GOP tax plan as mostly true.
Because only the House bill and not the Senate version include this provision, however, its ultimate fate is uncertain.