I. Introduction In 1978, Jerry Fawell of the Moral Majority, declared abortion ―an issue that concerns the human rights of unborn babies[.]”1 Echoing Fawell, in 2010 the Catholic Family & Human Rights Institute (C-Fam) submitted a report to the United Nations expressing concern about ―violations of the right to life for unborn children‖ in the United States.2 C-Fam cited Article Six of the International Covenant on Civil and Political Rights, stating ―[e]very human being has the inherent right to life[,]‖ and noted that ―the right to life of the unborn child has not been protected in American law since the United States Supreme Court decision of Roe v. Wade in 1973.‖ In the intervening years scores of laws have been passed in the US purporting to assign to fertilized eggs, embryos, and fetuses separate, independent legal rights in a variety of contexts. Experience with these laws and how they have been used to justify the arrest and detention of pregnant women and to authorize forced medical intervention on them provides vivid examples of the ways in which such laws are used to deprive pregnant women of their personhood and dignity. Some advocates, nevertheless continue to argue that international human rights principles provide authority for legally disconnecting fertilized eggs, embryos, and fetuses from pregnant women. Proponents of this claim, however, have failed to find credible support for this view in international law or custom. In fact, human rights doctrines do not and should not authorize states to legally segregate the ―unborn‖ from 1 God in America: ―Of God and Caesar‖ http://www.pbs.org/godinamerica/transcripts/hour-six.html 2 Catholic Family & Human Rights Institute, UPR Report, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS9.aspx 1 the pregnant women who carry, nurture and sustain them, and to do so would necessarily deprive women of their own well-established human rights. II. Abortion Criminalization Activists Seek to Legally Disconnect Fertilized Eggs, Embryos and Fetuses From the Pregnant Woman Opponents of legalized abortion have used a variety of strategies to reverse Roe v. Wade, the 1973 U.S. decision recognizing a fundamental right to privacy within the 14th Amendment that includes a right to terminate a pregnancy.3 One strategy that has been tried and appears to be having a significant resurgence today is the claim that fertilized eggs, embryos, and fetuses should be recognized under U.S. and international law as separate legal persons with full human rights. Such rights, they claim, are equal to the rights under domestic and international human rights law that born persons enjoy. [Whether framed as it was in the 1970s and 1980s as a ―Human Life Amendment,‖4 or framed as the more recent ―personhood laws,‖5 claims of fetal separateness co-opt the language of international human rights and are being used both a rallying cry and an organizing tool for abortion re-criminalization. While the stated goal is the end of legal abortion, these efforts are in fact being used more broadly, and have the potential to destabilize progress in women‘s equality and undermine women‘s human rights. Over the last several years, [abortion criminalization activists] have brought measures attempting to grant rights to fertilized eggs ―from the moment of conception‖ to state legislatures and to voters as state ballot measures. For example, in 2010, Colorado 3 Roe v. Wade, 410 U.S. 113 (1973) 4 Since 1973, more than 330 Human Life Amendment proposals have been introduced in Congress. Several sets of extensive hearings have been held. An unsuccessful Senate vote on an amendment occurred in 1983. National Committee for a Human Life Amendment, available at http://www.nchla.org/issues.asp?ID=46 5 Discussed infra, __ 2 voters rejected by a nearly 3-to-1 margin a proposed amendment to the state constitution that would define the term ―person‖ as ―every human being from the beginning of biological development of that human being.‖6 [ to add citations to the bills and ballot measures] While allegedly targeting abortion, advocates of these measures have acknowledged that their proposed laws would have far ranging consequences beyond abortion.7 As detailed below, actual legal cases in which claims that fetuses should be considered legally separate from pregnant women were made demonstrate that such measures would affect women attempting to carry their pregnancies to term as well as those seeking abortions. While none of these separatist measures have so far garnered enough votes to amend state constitutions, the outlook suggests a continued and persistent effort by their advocates. The claim that fetuses should be considered legally separate under human rights doctrine poses a significant threat to the enjoyment of full human rights by pregnant women. Claims of fetal separateness warrant a feminist legal response, as they have ramifications far beyond the campaigns in U.S. states. For example, language assigning full legal rights to fertilized eggs from the moment of conception has recently been incorporated into the constitutions of many Mexican states. Following a decision of the Mexican Supreme Court of Justice of the Nation (SCJN) upholding Mexico City‘s decriminalization of all abortion during the first 12 weeks of pregnancy, seventeen states amended their constitutions to state that fertilized eggs are considered legal persons from 6 Legislative Council of the Colorado General Assembly, 2010 State Ballot Information Booklet (Sept. 2010) available at http://www.colorado.gov/cs/Satellite/CGA-LegislativeCouncil/CLC/1200536136114, click Blue Book 2010‖ 7 3 the moment of conception.8 While these measures ostensibly targeted abortion, in reality they created a ―climate in which any pregnancy that does not end in a healthy baby raises suspicion about the mother.‖9 As a result, there have been accounts of pregnant women who arrive at a hospital bleeding and in pain only to be interrogated by a police officer before any medical treatment could be administered.10 Under these laws, women who have attempted to have abortions have been prosecuted for homicide and other crimeslike?]. In Jalisco, the penal code enhances the punishment for induced abortion if the woman has a bad reputation or fails to hide her pregnancy, while the punishment is reduced if she became pregnant through an ―illegitimate union‖ or if the abortion occurs in the first five months of pregnancy.11 A bill proposed in Brazil would go even further. In May 2010, the Commission on Social Security and Family of the Brazilian House of Representatives approved a bill that would legally disconnect fertilized eggs from pregnant women, and treat them as ‖human beings‖ from the time of conception. According to a Brazilian reproductive justice advocate, ―if approved, the law would convey legal status to embryos and entitle them to comprehensive legal protection[.]‖12 The bill explicitly criminalized any acts or omission that harm an embryo, and made the protection of fertilized eggs rights an 8 See, e.g., Elizabeth Malkin, Many States in Mexico Crack Down on Abortion, N.Y. TIMES, Sept. 22, 2010, available at http://www.nytimes.com/2010/09/23/world/americas/23mexico.html. 9 Elizabeth Malkin, Many States in Mexico Crack Down on Abortion, N.Y. TIMES, Sept. 22, 2010, available at http://www.nytimes.com/2010/09/23/world/americas/23mexico.html. 10 See, e.g., Elizabeth Malkin, Many States in Mexico Crack Down on Abortion, N.Y. TIMES, Sept. 22, 2010, available at http://www.nytimes.com/2010/09/23/world/americas/23mexico.html; Mary Cuddehe, Mexico‟s Abortion Wars, ATLANTIC MONTHLY, Oct. 2009; Lauren Villagran, Mexico‟s Brewing Battle Over Abortion, GLOBAL POST, Jan. 27, 2010, available at http://www.globalpost.com/dispatch/mexico/100120/abortion-mexico-city?page=0,0. 11 Mary Cuddehe, Mexico‟s Abortion Wars, ATLANTIC MONTHLY, Oct. 2009. 12 Beatriz Galli, Bill Establishing Embryo Rights Violates Women‟s Reproductive Rights in Brazil, Reproductive Health Law List Serve, Oct. 1, 2010. 4 ―absolute priority‖ over the health and life of the woman who carries and sustains it.13 In addition to banning all abortions, the bill also explicitly listed areas of medical treatment where fetuses would be given priority, including: prenatal diagnostic testing, [this needs to be expanded/verified using a translation of the bill]. Human rights advocates immediately recognized that the bill could lead to serious violations of women‘s human rights, citing examples from the U.S. where women were criminally charged because they suffered a stillbirth or forced to court-ordered bed rest,14 and rallied against the bill.15 Brazil‘s abortion criminalization movement, however, has been gaining momentum with the strong influence of the Catholic Church. In 2009, the movement demonstrated willingness to subordinate women‘s human rights to life, health, and dignity in the name of promoting the fiction of full fetal separateness.. Doctors discovered that a nine-year-old girl was fifteen weeks pregnant with twins, reportedly as a result of rape by her stepfather. The girl met the very restrictive criteria for a legal abortion in Brazil, and the girl‘s mother and doctor agreed that continuing the pregnancy posed a serious threat to her health. The Catholic Church in Brazil, however, vocally opposed the abortion, insisting that the girl should carry the pregnancy until a cesarean surgery could be performed, and even excommunicating the mother and the doctor after the abortion was performed.16 [we can