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Texas Carpool Lane Dispute Raises 'Fetal Personhood' Questions

By Richard Dahl on July 15, 2022 12:11 PM

Now that states are considering "fetal personhood" laws, many serious legal questions may need to be answered about giving legal rights to the unborn.

Does a fertilized egg, embryo, or fetus really have the same legal rights as you and your neighbors? When does child support begin? What if a woman from a different country is visiting the U.S., has sex, and becomes pregnant? The U.S. recognizes birthright citizenship, so does that mean that a person who is conceived here is a U.S. citizen?

Or let's say you're a pregnant woman who is in a hurry to get somewhere. Since you have a "person" inside you, does that mean you can drive in the high occupancy vehicle (HOV) lane?

We ask the HOV question because it is one that arose recently in Texas, which has one of the toughest abortion bans in the U.S.

Brandy Bottone, 32 years old and 34 weeks pregnant, was running behind schedule to pick up her son on June 29 and decided to steer her car into the HOV lane of Dallas' Central Expressway. Seeing Bottone driving alone in the car-pool lane, a sheriff's deputy pulled her over and issued her a $215 ticket.

Aware of Texas' strong commitment to the unborn, Bottone pointed to her belly and argued that she had not broken the law. She said that her daughter, scheduled for birth in early August, was there in the car with her. The deputy wouldn't budge, and Bottone announced she was challenging the ticket.

What Does Texas Law Say?

The case has drawn broad attention, and Bottone has become a cause célèbre to the anti-abortion and abortion-rights camps alike. She has a court date coming up, and she has hired a lawyer to do more than help her contest a $215 ticket. Bottone claims she doesn't have strong political views on abortion but says she's seeking a ruling on whether a fetus is seen as a life and whether that would allow pregnant women to use the HOV lane.

Like most states, Texas does have a "fetal homicide" statute that counts a fetus as a person in determining whether a crime is committed. But it does not have a "fetal personhood" law — no state does, although it's been introduced in five states. In addition, three more states — Alabama, Arizona, and Georgia — passed laws broadly defining unborn children as a person in the last decade. Those laws were enacted during the era of Roe v. Wade, however; they've been challenged in the courts and never gone into effect.

Texas is one of the states that has passed a "trigger law" that went into effect when the U.S. Supreme Court overturned Roe. That law, which will ban all abortions, will go into effect later this summer. In addition, the Texas Supreme Court ruled on July 1 that the state can now enforce a pre-Roe abortion ban from 1925.

Next Steps

In other words, Texas' abortion ban is tough as hell. There's a difference, however, between banning abortions and recognizing fetal personhood. And some in the anti-abortion movement see fetal personhood as the next step.

The Bottone case is small potatoes, but it signals what is waiting down the road if fetal personhood gains traction. Just in a case involving fetal personhood and HOV lanes, for instance, would it effectively mean that any woman need only claim to be pregnant to gain access to the lanes? Would it mean the end of HOV lanes? If fetal personhood gains strength, much bigger questions could surface and shake the foundation of our legal system.

Bottone might not have much of a case. In dry legal terms, it's important to point out that whatever the abortion bans might say about giving rights to the unborn, the deputy who issued the ticket was just doing his job: The Texas transportation code does not recognize an unborn child as a person. Still, as one legal observer recently pointed out, it's entirely possible that a trial court judge might award Bottone and her lawyer for creativity.

Bottone's court date is July 20. If the fight drags on, though, she might have to bow out for a while. Her daughter is due Aug. 3.

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