The XX Factor

Why the Republican Tax Plan Gives Fetuses the Right to Save for College

This embryo is not ready for a Social Security number.
This embryo is not ready for a Social Security number.

Photo illustration by Slate. Photos by Thinkstock.

Careful readers of the GOP’s atrocious tax plan were rewarded with a little anti-abortion Easter egg. In a provision about tax benefits for college savings accounts, a section wholly unrelated to health or pregnancy, the bill’s authors proposed a new definition of life itself.

“Nothing shall prevent an unborn child from being treated as a designated beneficiary or an individual under this section,” the legislation reads. “For purposes of this paragraph…the term ‘unborn child’ means a child in utero. … The term ‘child in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.”

It takes some audacity to slide ostensibly “pro-life” language into a bill whose egregious tax cuts for the wealthy would be funded by life-threatening cuts to Medicaid and Medicare. It’s also completely unnecessary as a matter of tax policy. People can already open 529 plans, the savings accounts in question, under their own names to save for college before their child’s birth. All they need to do is switch the account beneficiary to their child once she’s born. The only way fetuses could suffer under the current 529 regulations would be if they matriculated at a university before exiting the womb, thereby requiring their college funds earlier than most.

There are three possible reasons why Republicans would try to legally rename a fertilized egg or fetus in the middle of a tax bill. One is to troll pro-choice advocates and legislators, who will now be forced to argue against this silly provision along with all the more substantive offenses that lie within the bill. The GOP might also hope for a fetal domino effect: To have a 529 account, you need to have a Social Security number. Babies usually get their Social Security numbers along with their birth certificates. Giving fetuses access to tax benefits could trigger an If You Give a Mouse a Cookie situation that ends with microscopic clumps of human cells getting birth certificates, marriage licenses, and political appointments.

This is completely absurd, not least because only half of fertilized eggs—the first “stage of development” referenced in the GOP’s tax plan—actually implant in a uterine wall, when the medical community says pregnancy begins. Many anti-abortion activists would rather refer to these naturally expelled fertilized eggs as “pre-born humans,” which explains the GOP’s third reason for wanting to give blastocysts a nod in the tax code: To garner support for curbing abortion rights, the party tries at every turn to shift the cultural conversation away from women’s rights and toward the rights of fetuses.

Authors of “personhood” bills, which have been proposed and voted down in several states over the past decade, have tried to confer all the legal and constitutional rights of a human being onto fertilized eggs. If passed, such laws would necessarily define abortion as murder and abortion-seeking women as murderers. But states have found other less severe ways to sneak legal rights to fetuses without scaring away moderates with the idea of outlawing birth control methods that prevent fertilized eggs from implanting.

For example: Louisiana legislators have given embryos, which are even less developed than fetuses and still need another week of growth before embedding in a uterine wall, the right to sue people in court. The state calls embryos “juridical persons,” a kind of halfway point between clusters of cells in a woman’s body and actual human beings. This is how Sofia Vergara’s frozen embryos were able to sue her for their “right to live.” (The Louisiana judge ruled that the embryos were, in fact, “citizens of California,” and thus had no standing in the only state that would let them serve as plaintiffs.)

Other states prioritize fetal rights over women’s rights with “chemical endangerment” laws, under which women have been imprisoned for using drugs, even marijuana, while pregnant. Like the tax plan the GOP is trying to pass, chemical endangerment laws have no bearing on abortion rights but still punish pregnant women through the legal argument that the fetus she carries is a “life” with rights the state must protect. And, like the personhood language in the tax bill, any law that establishes rights for fetuses adds grease to an already slippery slope of the government dictating what a woman can do to her body once her uterus holds a fertilized egg. (Can she drink? Breathe fumes at a nail salon? Take antidepressants?)

The Republican Party also has a long tradition of passing fetal-rights laws under the guise of protecting pregnant women from abusive partners or family members, then using those laws to prosecute the women themselves. Dozens of women, the most famous of whom is Purvi Patel, have been arrested on charges of “feticide” or “fetal homicide” for attempting suicide, experiencing stillbirths, and having miscarriages. National Advocates for Pregnant Women (NAPW) has gathered hundreds of other examples of states detaining, arresting, and incarcerating pregnant women for allegedly violating their fetuses’ rights.

The federal feticide law, the “Unborn Victims of Violence Act of 2004,” was passed in the wake of Californian Scott Peterson’s murder of his pregnant wife, Laci. It defines “child in utero” in the same exact way as the GOP’s 2017 tax plan: “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” Advocates pushed the 2004 bill by arguing that it would prevent would-be murderers from killing pregnant women, since they’d be charged with two counts of homicide instead of one. At the time, NAPW argued against the bill with data from South Carolina, where a judge established similar fetal rights in 1984.

Since then, NAPW wrote, the concept of fetal personhood had only led to the conviction of one man on murder charges; in the same time period, it had led to the arrests of 50 to 100 women, some of whom were sentenced to 10 years in prison for putting their fetuses at risk. The immediate impact of fetuses being able to save for college in tax-advantaged accounts isn’t entirely clear. But whenever Republicans have given fetuses rights in the past, it has only served as an excuse to punish the women who carry them.