Last night’s Republican presidential debate on Fox News featured plenty of disturbing rhetoric about women, from the ridiculous (Donald Trump’s weird ad hominem attack on Rosie O’Donnell) to the infuriating (Marco Rubio speaking out against rape and incest exceptions) to the terrifying (Scott Walker clarifying that he does not support allowing abortions that would save the lives of pregnant women).
But Mike Huckabee took things to a new level when he calmly presented his plan to grant legal “personhood” to fertilized eggs and fetuses.
Some commentators have mistaken Huckabee’s comment as a call for a constitutional amendment to reverse Roe v. Wade. That’s not what he meant.
Instead, Huckabee was embracing a radical legal theory, disputed even in anti-choice circles, that holds that a constitutional amendment overturning Roe isn’t necessary to end legal abortion. This theory holds that the majority opinion in Roe contains a magic loophole that allows Congress to simply declare zygotes “persons” under the Fifth and 14th Amendments, which would then criminalize abortion nationwide in one fell swoop, no constitutional amendment needed. One of the most adamant proponents of this theory in Congress is Huckabee’s fellow GOP presidential candidate, Rand Paul.
Here was Huckabee’s answer to Chris Wallace’s question about his “strong positions on social issues,” including favoring “a constitutional amendment banning abortions, except for the life of the mother”:
Chris, I disagree with the idea that the real issue is a constitutional amendment. That's a long and difficult process. I've actually taken the position that's bolder than that.
A lot of people are talking about defunding Planned Parenthood, as if that's a huge game changer. I think it's time to do something even more bold. I think the next president ought to invoke the Fifth, and 14th Amendments to the Constitution now that we clearly know that that baby inside the mother's womb is a person at the moment of conception.
The reason we know that it is is because of the DNA schedule that we now have clear scientific evidence on. And, this notion that we just continue to ignore the personhood of the individual is a violation of that unborn child's Fifth and 14th Amendment rights for due process and equal protection under the law.
It's time that we recognize the Supreme Court is not the supreme being, and we change the policy to be pro-life and protect children instead of rip up their body parts and sell them like they're parts to a Buick.
As we detailed in our recent report on the personhood movement, this plan is not popular with many of the major anti-choice groups, which have been pursuing a strategy of slowly chipping away at abortion access and the legal protections in Roe, and who argue that a federal personhood bill would backfire bigtime.
But if Huckabee’s dubious legal strategy were to work, the consequences would be enormous. Not only would granting “personhood” to fetuses ban abortion in all but the rarest case where a pregnant woman and a fetus are both in mortal danger, it would put women who suffer miscarriages at risk of prosecution and jail time. The ambiguous wording of such measures has led many to fear that they could also outlaw common forms of birth control.
And the consequences could extend far beyond reproductive rights, as we wrote in our recent report:
By redefining what it means to be a person under the law, personhood measures could also have a broad legal impact on issues unrelated to reproductive rights, threatening to upend everything from inheritance law to census results . In 2014, the Colorado Bar Association opposed the state’s personhood ballot measure, warning that the vaguely worded measure would have “potentially serious, unintended and unknown consequences for Colorado lawyers. … From areas of Family Law to Probate Law to Real Estate Law, as well as the explicit effect on Criminal Law and Wrongful Death statutes, this Amendment could create uncertainty and endless litigation.”
Mike Huckabee’s support for the personhood movement is nothing new. But in declaring his intention to give 14th Amendment rights to fertilized eggs in a nationally televised debate, he gave a fringe movement what may be its biggest stage yet.