Virginia’s “Foolish” Personhood Law? A look under the hood

Via LoOG regular Mr. Gregniak: Virginia’s House of Delegates has just passed a fetal personhood law.

Virginia’s Foolish Personhood Law


Virginia’s legislature was very busy last week. Not only did they pass a bill that will require every woman seeking an abortion to undergo an unnecessary and invasive medical procedure, but the House of Delegates also passed a bill that purports to define life as beginning at the moment of conception…

Foolish? Let’s see.

First, it’s interesting to see the left sweating slippery slopes for a change. I rather like the law as an obstacle to “progress” in that monkey-wrench sort of way, granting the unborn a status above zero.

Now, I’m not big on the “personhood” tactic, which failed even in über-right Mississippi—it’s possible to oppose abortion without granting a zygote full citizenship. A zygote isn’t a baby, at least not yet, so it’s wack to pretend it is.

On the other hand, this Virginia law explicitly leaves Roe v. Wade unchallenged:

subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court

Roe is in the clear, for now, even if the law goes through. This is not a direct, frontal assault by a state against the federal government. This tactic does not work.

What the law’s effect might actually be is hard for even its critics to say.

[Delegate Bob] Marshall said his bill, modeled after legislation in Missouri, would not affect birth control, miscarriages or abortions but would affect the way that courts define a person. For example, parents could receive damages for the death of a fetus in a wrongful death lawsuit.

Which is sort of like the Laci and Connor Peterson trial, where the Laci’s murderer husband Scott was also found guilty of second degree murder for killing Connor, the fetus, their child.

A fetus with a name, Connor, and accordingly, with a certain “personhood” status.

This law is all about philosophical positioning, it seems to me, and there’s nothing wrong with that. I expect the courts won’t allow the fetus all the way to “personhood,” but these things make it harder for the courts to allow the fetus zero status, like a fingernail.

There are very few pro-choicers who would accept the challenge of arguing this exposed position—the less defensible rhetorical and moral ground, the lower ground—and that the baby in Laci’s womb that Scott Peterson killed was a nothing, no more than a fingernail.

That simply will not ring true, no matter how great your rhetorical skill: Scott Peterson killed something of moral status and significance, a someone of some sort.

We’re all aware of the usual arguments about abortion and a “woman’s body” etc. and that line of argument and its accompanying rhetoric have been well-honed and road-tested, and bear up well if we stick to the script.

But I think there are few who would welcome having to argue that what—who?—Scott Peterson killed in his wife Laci’s womb was a nothing, of no moral significance. Few of us believe that, and this is the purpose of this new Virginia law, if I read their intent correctly, to oblige pro-choicers to argue exactly that, and to be put on the moral and philosophical back foot for a change.

Be it enacted by the General Assembly of Virginia:
1. § 1. The life of each human being begins at conception.

Well, actually, that’s indisputably true. This does not say that every zygote is a full-fledged American citizen.

§ 2. Unborn children have protectable interests in life, health, and well-being.

That’s rather tame on its face. But rather radical in the present controversy. It’s said that he who defines the debate tends to win it. As a formal debate topic, the Virginia legislature has framed it thus:

Proposed: Unborn children have protectable interests in life, health, and well-being.

This explicitly argues the pro-life position, not the anti-abortion one, and from firmer if not higher ground. These country bumpkins in the Commonwealth of Virginia are perhaps not as “foolish” as they look.

Tom Van Dyke

Tom Van Dyke, businessman, musician, bon vivant and game-show champ (The Joker's Wild, and Win Ben Stein's Money), knows lots of stuff, although not quite everything yet. A past contributor to The American Spectator Online, the late great Reform Club blog, and currently on religion and the American Founding at American Creation, TVD continues to write on matters of both great and small importance from his ranch type style tract house high on a hill above Los Angeles.


  1. We come down on different ends of this meta-debate, but I agree with you that this kind of thing is good. We’re never going to get anywhere with this topic, as a country, if we approach everything from the farthest extremes. I think digging into middle ground and hashing it out is where a potential positive future lies.

    • Thx, RTod. Wanna take the “con” side of

      Proposed: Unborn children have protectable interests in life, health, and well-being.

      I wouldn’t want to have to argue it. And I wouldn’t want to have to argue that what Scott Peterson killed in Laci’s womb was nothing.

      I’ve been watching these red state legislatures over the years with their initiatives against the Roe regime. Some have been ham-handed but many have been quite sophisticated, and I think this Virginia thing in particular is more knowing than “foolish.”

      • I’ll take the “con.”

        A zygote, a blastocyst and any embtyo before 4 weeks has no brain and therefore has no “interest.” If it has no interest, it can have no “protectable interest.” Society may have an interest at this early stage of development, but the embryo itself does not.

      • I can see your discomfort at arguing this position, but that doesn’t mean no reasonable argument is possible. I would argue that prior to birth the fetus is not a person in any meaningful legal sense. Biologically, it’s hard even to declare that a neonate is a person. It is as fully dependent on its mother as it was prior to birth, and lacks both the level of intelligence and social responsiveness of many non-human animals.

        What we should be thinking about instead, if our goal is to punish would-be Scott Petersons, is the interests of the pregnant woman. Indisputably she has an interest in the fetus, and as a person her interest can be protected.

  2. I’m not sure where The Left is sweating a slippery slope here. Doug M is a conservative and OTB is a throughly conservative site. And slippery slopes are terrible arguments and logical fallacies.

    While the legislator is saying it won’t have any concrete effect and essentially about philo posturing as you put it, it think that is naive. The fetal personhood acts are meant to either outlaw abortion directly or or to put in check with check mate the next move. Reading Doug M’s analysis its not hard to see how this could just as easily effect contraception.

    • Gregniak, this is my own analysis. Who Mataconis is, dunno, don’t care, left, right. I disagree bigtime that the law is “foolish.” I think it’s elegant, for my own reasons given.

      Argue against

      Proposed: Unborn children have protectable interests in life, health, and well-being.

      You haven’t, I wouldn’t, and I doubt anyone will try. This is a bold reframing of this “rights” debate and these Virginia legislators are anything but foolish.

      I’m not sure where The Left is sweating a slippery slope here…

      Reading Doug M’s analysis its not hard to see how this could just as easily effect contraception.

      Then I think they’re sweating slippery slope, then, Mr. Gregniak.

  3. “Sen. Dick Black, R-Loudoun said the bill is designed to chip away at the Roe vs Wade decision that legalized abortions in 1973.” “The hope of the profile movement is that it will eventually translate into some suppression of these things,” Black said. – Elegant, you say? Maybe. But only in a sheep in wolves clothing kind of way… A little research reveals that neither pro-life nor pro-choice believe it to be innoculous, in spite of its elegance, and perhaps that’s where the real story lies.

  4. “But I think there are few who would welcome having to argue that what—who?—Scott Peterson killed in his wife Laci’s womb was a nothing, of no moral significance”

    I would. I understand the impulse to focus on the woman’s bodily integrity and avoid thorny territory, but in the long term, I think it’s been a mistake for defenders of abortion rights to even tacitly concede any moral status to the fetus. I hope this “personhood” nonsense encourages a more direct attack on that premise, and the crude biological essentialism that usually seems to support it.

    • Mr. Sanchez, you’re not off to a flying start. Arguing the baby in the womb is a “nothing” just doesn’t sing.

      We are in agreement that this Virginia thing poses a rhetorical and philosophical threat to the Roe regime. That would be the main argument of this post, that agree or not, it’s far from “foolish.” It’s quite powerful.

      • Oh, well, if it doesn’t “sing”. Forgive me if I don’t consider is sort of shameless voodoo a “philosophical threat” to anything.

        • @ Julian Sanchez: Thx for the reply, but the “voodoo” argument? That’s not philosophical, it’s anti-philosophical.

          Julian, I’ve enjoyed and respected yr work over the years even in disagreement. Don’t do it for me and this stupid little blogette, but do it fr yrself and make a principled argument on this. In fact, I even looked up yr blog to see if you wanted to make a go of this one.

          You did not. That speaking of the nature and rights of the unborn amounts to no more than voodoo will not do, sir. The unborn are not nothing, but that’s all the status you’ve allowed them here.

  5. I was wondering how those two provisions could have any effect other than introducing broad uncertainty into legal proceeding across the Commonwealth of Virginia. Turns out there is a bit more to the bill:

    Be it enacted by the General Assembly of Virginia:
    1. § 1. The life of each human being begins at conception.
    § 2. Unborn children have protectable interests in life, health, and well-being.
    § 3. The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
    § 4. The laws of this Commonwealth shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development all the rights, privileges, and immunities available to other persons, citizens, and residents of this Commonwealth, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this Commonwealth.
    § 5. As used in this section, the term “unborn children” or “unborn child” shall include any unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.
    § 6. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.
    § 7. Nothing in this section shall be interpreted as affecting lawful assisted conception.

    Tom’s note on the limitation of the statute to the dictates of the Constitution and the Supreme Court is well-taken, but then that is the case whether it is written into the law or not.

    • True, Mr. Drew. Virginia’s acknowledgment of the Roe regime makes it seem not unreasonable, shoot from the hip, rage against the judicial overreach machine, etc., but soberly designed to sit alongside existing law and precedent.

      Unlike many of these state resolutions, which seem more like kamikaze missions and are easily laughed away.

      This resolution is more notable [in my view] for its rhetorical and philosophical precision, not for its possible legal effects, which I expect to be minimal. [If it survives SC review atall.]

      • This legislative language would be less problematic if it were merely a resolution. I agree that resolutions are the correct vehicle through which legislatures should state their purely philosophical and moral senses. Would that that is what this were. Unfortunately it is not; it is a proposed law.

  6. Thank you for a well-written, well-reasoned commentary on HB1. Heaven knows you won’t find anything of the sort from the media.

  7. And to some of the other comments, I must add an important note: identical language that became law in Missouri in 1986 (!) survived U.S. Supreme Court scrutiny in 1989. See Webster v. Reproductive Health Services. The Court held that constitutional challenges were not even properly raised because, by its own terms, the law did not affect abortion or any other medical practice.

    It was this Missouri law on which HB1 was modeled.

  8. I have to wonder at the “health” interests of the fetus. There are many things that an expectant mother could do that have some impact on the health of the fetus. Could there be liability in malnutrition? Alcohol consumption? If the baby is of low birth weight?

    I agree with TodK above that the extremes offer little of use.
    In the balancing of competing interests, the fulcrum is rarely to be found on the far end of either side.
    Our times distort our concerns to make them appear more weighty.

  9. Of course it’s not a “nothing”. It’s a parasite, at least until viable outside of the womb.

    *awaits anguished screaming*

  10. Tom, I was deeply saddened by your horrific and traumatic experience in Philadelphia–it must have seemed like a terrible nightmare. Hope you’re feeling much better and on the road to a very quick recovery–my prayers are with you, often.

    I wanted to convey these wishes to you much earlier, but as you know, I’m as welcome around here as the bubonic plague.

    I doubt this will even get through. As much as I’d like to participate in this interesting conversation, it’s a bit pointless considering all of my comments are immediately tossed in the virtual garbage can.

    What has my brain on fire these days is how did the universe ever begin in such an unimaginable state of low entropy? How long was that head-of-a-pin cosmic state of the cosmos able to sustain such extra-extra-extraordinary force? For that matter, did the laws of the universe exist before the Big Bang or afterwords? If certain actions had to come about that would require space and time to exist, how did the initial state of the universe come about before time and space were even formed? And how did atoms ever evolve into sentient, intelligent beings? And we won’t even get into consciousness.

    Sorry for going off topic—I’d love to enter the conversation, but know there is very little chance any of my thoughts or comments will get through the League’s ever present Thought Police Barricades.

    It’s just a damn shame the anally retentive gendarmes around this place have such control over free flowing conversations that do quite well on their own without the stultifying batons of political correctness beating down any original thoughts or thinkers.

    My best thoughts and cheers to your good health, Tom!! Get well soon, my friend! H

    • Hate to break the news to you, folks, but a zygote is a complete, total, genetic human being. Yes, has all 46 chromosomes–the only difference between a zygote and a fully developed fetus is size.

      How much more difficult it would be to abort a 7 pound zygote instead of a microscopic zygote? The only thing Blackmun did was give a justification for infanticide and the active participation in eugenics insofar as aborting the undesirables.

      Funny how 140 years went by before Supreme Court Justice ever saw a constitutional right to privacy to commit abortion in that 14th Amendment. We do NOT create ourselves which is precisely why the unborn need to be protected as a complete, genetic entity with the same, full, common law protections of the born. Yes, the right to life is an inalienable, undeviating, divine right bestowed upon the unborn, without exception and wholly protected from destruction and the extreme violence abortion manifestly incurs.

      • I didn’t know that all it took to be human was to have the human genome in the genes inside your cells. Next time I scrape my knee, it will be like a massacre.

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