National Review Online's Ian Tuttle disregarded history when dismissing fears that “personhood amendments” and fetal-homicide laws could open the door to criminal prosecutions for women who have miscarriages or abortions. Women have already been prosecuted for miscarriages in several states, and personhood advocates are explicitly pushing to end legal abortion.

In an October 21 article, Tuttle wrote that “liberals are lying about personhood amendments” like Colorado's proposed Amendment 67, which would define "'person' and 'child' in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings." Tuttle asserted that opponents are mischaracterizing personhood amendments to claim they would make abortion illegal and allow the prosecution of women who have had miscarriages:

That is the talking point of opponents such as Planned Parenthood, NARAL, and Vote No 67, the main opposition campaign, which says that “any woman who suffers a miscarriage would be open to investigation for murder.”

This feverish scenario runs contrary to both experience and law.

Since 2006, Alabama has defined “person” in its homicide statute to include “an unborn child in utero at any stage of development, regardless of viability.” No women have been investigated for miscarriages in Alabama. Or in Alaska, where a similar law also took effect in 2006. Or in Kentucky (2004). Or in North Dakota (1987). Or others.

But Tuttle ignored the fact that similar state laws have already been used to prosecute women -- in Indiana, a woman who attempted to commit suicide while eight months pregnant was charged with murder. In fact, in Alabama, cited by Tuttle as an innocent actor, the judiciary is no stranger to interpreting the law in a way that pushes a personhood agenda. In that state, two women were prosecuted for endangering their unborn children by ingesting illicit drugs during their pregnancies, even though their “behavior ... was not intended to be criminalized when the Legislature enacted the chemical-endangerment statute.” According to RH Reality Check, these laws are increasingly “misused by overzealous prosecutors and judges to trample women's rights in favor of the nebulous personhood rights of fertilized eggs, embryos, and fetuses.” 

Tuttle also waved off concerns that Colorado's personhood amendment would effectively prohibit abortion, despite the fact that the Colorado amendment was proposed by Personhood USA's state chapter Personhood Colorado, a group explicitly pushing to end legal abortion:

And as in the Alabama Supreme Court's landmark ruling in Hamilton v. Scott in 2012, reaffirming Alabama's inclusion of unborn persons in its homicide statutes, the constitutional protections to abortion afforded by Roe v. Wade would almost certainly be read into Colorado's law. A “woman's right to terminate her pregnancy” (Roe's language) is not explicitly exempted from criminal prosecutions, but this is likely, as a practical matter, unnecessary.

The very case Tuttle cites has been described as an explicit roadmap for overturning Roe v. Wade. As ProPublica explained, the judge who authored the opinion in Hamilton is “a pivotal figure in the so-called personhood movement” who wrote that “a centerpiece of Roe -- that states cannot ban abortion before the point of viability -- was 'arbitrary,' 'incoherent,' and 'mostly unsupported by legal precedent.'”