Representations of the Unborn in U.S. State Abortion Law: Legal Personhood, the Legislative Word Choices that Marginalize Women or the Unborn, and the Consequences of Legislative Silence
摘要
Variations exist in the terms used to describe the unborn in U.S. state abortion-related statutes. Some state legislatures view the unborn as “persons,” or as beings possessing something close to personhood. In states where the unborn are not viewed as persons or in person-suggestive terms, they are marginalized by the words of the abortion-related statutes that either do not refer to them at all or do so largely by medicalized or scientific terms. The marginalization of women’s legal personhood exists to a greater extent in states that assign personhood to the unborn as compared to states that do not. This study analyzes those terms against a continuum of rights. A scatterplot demonstrates the distribution of the use of terms across three categories of states: most restrictive, neither most- nor least-restrictive, and least restrictive regarding abortion access. States in the most restrictive category use terms signifying some degree of rights for the unborn more frequently than states in the least restrictive category. Personhood for the unborn has emerged through legislative word choices, by classification of the unborn as “persons” or in “person-suggestive” terms. The legal designation of personhood status on a class of beings has historically not been reversed; rather, it has been expansive. Historically, legal signage of a class of beings as “person” has not been a contained, partial, or localized act. Long-term legal stability of separate classifications for the same class of beings within the same national jurisdiction is unlikely.