Can a fetus be an employee? States are testing the boundaries of personhood after ‘Dobbs’

Reviewed by Emily Henderson, B.Sc.May 5 2023

Kaitlyn Anderson was six months pregnant when a driver killed her and a Missouri Department of Transportation colleague in 2021 while they were doing roadwork near St. Louis. Her fetus also died.

Although Anderson's family tried to sue the department on her behalf, workers' compensation laws in Missouri and elsewhere shield employers from wrongful death lawsuits when an employee dies on the job. So the case was also filed on behalf of the 25-year-old woman's unborn child, a son named Jaxx. This was possible because Missouri law defines life — and legal rights — as beginning at conception.

In turn, the lawyers representing the state argued that, since Jaxx was considered a person, his case should be dismissed because under workers' compensation laws he met the definition of an employee.

"That’s just disgusting," said Tonya Musskopf, Anderson's mother. "Who would have known what he would have grown into? His whole life was ahead of him."

What wasn't in question from either side was the idea that the 6-month-old fetus had legal rights under Missouri law. Every state has at least some statute or case law that considers a fetus a person, according to a report from Pregnancy Justice, a nonprofit that advocates for the rights of pregnant people. The report lists Missouri among at least 10 states with personhood language that is so broad it could be interpreted to apply to all civil and criminal laws.

Around the country, state personhood definitions have often been restrained by laws protecting the right to abortions, according to Pregnancy Justice acting executive director Dana Sussman, because together they create an inherent inconsistency: How could a fetus be a person if abortion is legal? But now that abortion rights are no longer federally protected, personhood definitions could expand throughout state law.

"States have more leverage and leeway to tread in these waters," said John Seago, president of Texas Right to Life, a group that opposes abortion.

The U.S. Supreme Court's 1973 decision in Roe v. Wade, which protected abortion rights, stated that the word "person" did not include the unborn for the purposes of individual rights such as equal protection under the law. The ruling prompted a nationwide push to grant more rights to fetuses, according to Laura Hermer, a visiting professor at St. Louis University School of Law.

Among states, Missouri’s recognition of personhood for fetuses was early and consequential.

Here, a 1986 law to regulate abortion included a preamble that defined life as beginning at conception. Three years later, the U.S. Supreme Court ruled Missouri's definition could stand since it was merely a "value judgment." A Missouri Supreme Court ruling in 1995 opened the door for the definition to apply to all Missouri statutes.

Still, Sussman noted, Missouri courts have not applied personhood to every state statute.

In 2018, a Missouri man unsuccessfully attempted to appeal his conviction for child molestation by arguing the state's personhood language required the court to calculate the age of the victim from conception, not birth, which would have made her above the statutory age limit. Sussman said it's an example of how the limits of broad personhood language are tested.

"People will start to utilize that and figure out ways to have it benefit their particular circumstances," Sussman said.

That type of boundary-pushing, Sussman said, is invited by inconsistencies in the law, like those created by the U.S. Supreme Court's Dobbs decision last summer, which overturned Roe v. Wade without addressing the question of when personhood rights begin.

The Dobbs ruling gives states the power to regulate abortion, and in Texas it triggered an abortion law that defines an unborn child as an "individual living member of the homo sapiens species from fertilization until birth." Just days later, a Texas woman was given a ticket for driving in the carpool lane despite arguing that her unborn daughter counted as a second person in the vehicle.

"One law is saying that this is a baby and now he's telling me this baby that's jabbing my ribs is not a baby," she said of the officer who gave her the ticket. That ticket and a second one she got for a similar incident the next month were ultimately dismissed.

Another legal boundary was pushed in early April when a U.S. District Judge in Texas ruled that the FDA had improperly approved the common abortion drug mifepristone. The judge noted that part of the ruling's analysis "arguably applies to the unborn humans extinguished by mifepristone — especially in the post-Dobbs era." The Supreme Court has blocked the ruling, for now.

Seago said these kinds of legal tests are important.

"That’s the phase that we’re at after undoing a court precedent that had been there for almost 50 years," Seago said. "We’re encouraged that it’s forcing these important questions, like, 'What do we owe our unborn neighbors?'"

But Sussman worries about an increase in criminal charges filed against pregnant people. Pregnancy Justice filed a brief in a 2021 court case challenging an Arizona law that granted personhood rights to unborn children "at every stage of development."

Citing Missouri as a cautionary tale, the brief asserts not a single woman was arrested in the state in relation to her pregnancy before the Supreme Court allowed Missouri's personhood language to stand. The years that followed, however, brought at least 39 arrests of women "for being pregnant and subjecting 'unborn children' to perceived risks of harm including drinking alcohol, smoking marijuana, or drinking tea made with mint and marijuana leaves to treat morning sickness."

The Arizona law was blocked, at least temporarily.

Texas' new abortion case law has yet to play out, but Seago anticipated it would follow the pattern established for child abuse, in which the accused can defend themselves by establishing they didn't intend to cause harm.

"There's no accidental abortion in Texas," Seago said.

In Missouri, wrongful death claims for unborn children have been allowed since the 1995 state Supreme Court ruling.

Anderson's family filed a wrongful death lawsuit in St. Louis County in 2022 against the driver, the Missouri Highways and Transportation Commission — which governs the Department of Transportation — and several of Anderson's supervisors.

The state's attorneys argued that Jaxx, like his mother, met the definition of an "employee" under Missouri workers' compensation law, which includes an employee's dependents in the event the employee is dead. Because Jaxx's rights under Missouri law began at his conception, the filing read, he should be considered Anderson's dependent. That would prevent a wrongful death suit brought against the Department of Transportation on Jaxx's behalf.

"Who the hell would argue that someone who hasn't been born works for them and is a dependent?" said Andrew Mundwiller, the attorney representing Anderson's family. "I would say it stretches the bounds of the law."

Theresa Otto, an attorney representing the Department of Transportation, declined to comment about the case, saying the department does not comment on active litigation.

St. Louis University School of Law professor Michael Duff, who has written a book on workers' compensation law, said this type of case was, "thankfully," rare. But he did find nine cases nationwide since 1985 that examined whether workers' compensation laws barred suits against companies for injuries sustained in utero. In each case, the answer was no and the lawsuit continued.

On March 29, Judge Joseph Dueker, who was assigned the case in St. Louis County Circuit Court in Clayton, issued a similar ruling in Jaxx's case, writing that barring Jaxx's claims would lead to an "extremely absurd result." A trial is set for March 2024.

Sussman, of Pregnancy Justice, said broad personhood language would allow legal boundaries to be pushed until state legislatures act to clarify the laws.

The case in Missouri prompted the introduction of a bill in the state legislature, dubbed "Jaxx's Law," that would bar unborn children from being considered employees in any civil actions, including wrongful death lawsuits.

But they would still be considered people with legal rights.