Recently, it has become apparent in states that have made abortion illegal, there is still a need to recognize the humanity and personhood of the unborn child under the law. Simply put, banning abortion did not make the unborn child recognizable in many other areas of law other than the area of abortion itself. In essence, statewide pro-life Abortion Bans did not fully recognize the personhood of the unborn. As a result, there are areas of law that need to be rectified. One of those deals with an inconspicuous area of law dealing with High Occupancy Vehicle Lanes (HOV Lanes).

This past summer, Brandy Bottone, of Texas, was stopped for being in an HOV lane. She promptly showed the officer her pregnant belly and stated that since Roe had been overturned, her unborn child counts as a person.[i] Her ticket was eventually dismissed, however she got another ticket for using the HOV lane.[ii] In November, when the Texas Legislature was allowed to begin pre-filing bills, one was filed to address the particular problem Ms. Bottone had revealed.[iii] [iv] A couple of months later, Virginia followed the lead of Texas and a pro-life legislator also filed an Unborn Passenger Recognition Act.[v] [vi]

Interestingly, many may be surprised to learn that when Roe was overturned it did not grant personhood. The Dobbs decision merely 1) recognized that the Roe decision was wrongly decided and that abortion was not a constitutional right and 2) allowed the states to decide the policy on abortion. So, while Ms. Bottone certainly recognized that while Texas Law recognized the illegality of abortion, the overturning of the Roe did not automatically grant full recognition of the unborn child’s personhood under the law. Hence, the need to file legislation to correct the problem.

Of course, many may ask what is even the need to file and pass such simplistic legislation? This seems almost innocuous. The basic answer is that it helps formalize the humanity and personhood of the unborn child under the law. But the answer needs to explained a little more in order to gain some better insight as to why this is the case.

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It certainly has become clear that pro-life incrementalism has achieved one very important goal and that goal was the overturning of Roe. But it certainly has become apparent that pro-life incrementalism is not quite finished, even within states that have prohibited abortion. And it is quite clear that Ms. Bottone’s situation showed an obvious deficiency within the current legal system.

Since it is the object of the pro-life movement to not only ban abortion, but to also have the unborn child recognized as a person under the law it becomes necessary to pass such legislation. The Dobbs Court has still left open the question of legal personhood regarding the unborn. As a result, there is still areas of law that need to be addressed. This silence of the law is what is unjust and bills such as the Unborn Passenger Recognition Act aim to correct such harms.

While it is clear that the Unborn Passenger Recognition Act seeks to correct a harm of the silence of the law regarding the personhood for the unborn, the question becomes how does it help move society to a general acceptance of the unborn as human persons? There are several ways to look at this, especially in states that have initiated pro-life Abortion Bans. One area is the fact, that because of the Abortion Ban, it is clear that the killing of an unborn child is seen as legally wrong. This certainly helps the reasonable citizen see the humanity of the unborn child since it is not only morally wrong, but also legally wrong, to kill innocent human beings.

The Unborn Passenger Recognition Act merely adds to the law recognizing the humanity of the unborn by allowing pregnant women to use the HOV lanes since there are, scientifically and metaphysically speaking, at least two persons within the car. But what about a state, such as Virginia where there is no pro-life Abortion Ban in place? The fact still remains, it allows the state to recognize the humanity of the unborn child. By passing such legislation, this may allow states where pro-life laws are few to help further show the humanity of the unborn child. Again, by allowing pregnant women to use HOV lanes in these states, the law certainly sends a precise message that it regards the unborn child as a legitimate human passenger. While many people may not have a conscious thought regarding this law, since it seems so innocuous, it does send quite the unconscious message that may plant the necessary seeds to help people see the need for further pro-life legislation. But furthermore, if a pregnant woman were to use the HOV lane on her way to an abortion clinic, it may actually activate that seed and help her realize the humanity of her unborn child before she receives the abortion. If the state is willing to recognize the unborn child as a human passenger, then it must be a human person deserving the right to life.

But ultimately, one needs to realize that the Unborn Passenger Recognition Act, and laws like it, is that it helps restore lost/neglected justice for the unborn child. This is what is owed. Simply, when a pregnant mother is in the car, there are at least two persons. Not one. Laws need to reflect that reality. Unassuming legislation such as this can also open the door for other areas of law that may need to be addressed as well such as inheritance rights of the unborn child. This sort of legislation may even open the door for Unborn Victims of Violence legislation which recognizes the unborn as victims of crimes. As a member of the species homo sapiens, the unborn child is already morally owed his dignity and rights precisely because the unborn child is a person. Laws such as the Unborn Passenger Recognition Act help further that reality under the law.

[i] “Texas Woman Says Unborn Baby Should Count as a Passenger in HOV Lane”, Associated Press, July 11, 2022. Retrieved on January 17, 2023, https://www.pbs.org/newshour/nation/texas-woman-says-unborn-baby-counts-as-passenger-in-hov-lane.

[ii] Romo, Vanessa, “Pregnant Woman Who Claimed Her Fetus was an HOV Lane Passenger Gets Another Ticket”, NPR, September 2, 2022. Retrieved on January 17, 2023, https://www.npr.org/2022/09/02/1120628973/pregnant-woman-dallas-fetus-hov-lane-passenger-ticket.

[iii] Mueller, Julia, “Texas Bill Would Let Fetus Count as Second Person in an HOV Lane”, The Hill, November 17, 2022. Retrieved on January 17, 2023, https://thehill.com/homenews/state-watch/3739850-texas-bill-would-let-fetus-count-as-second-person-in-an-hov-lane/.

[iv] To see the Texas bill please go to https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB00521I.pdf#navpanes=0.

[v] Bilger, Micaiah, “Virginia Bill Would Allow Unborn Babies to Count as Another Person for HOV Lanes”, LifeNews, January 12, 2022. Retrieved on January 17, 2023, https://www.lifenews.com/2023/01/12/virginia-bill-would-allow-unborn-babies-to-count-as-another-person-for-hov-lanes/.

[vi] To see the bill please go to https://lis.virginia.gov/cgi-bin/legp604.exe?231+ful+HB1894.

LifeNews Note: Joe Kral, M.A., is the President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.

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