James A. Naumann (NYC Department of Education), Tax and Fetal Personhood Post-Dobbs, 69 Wayne L. Rev. 509 (2024):

After the Supreme Court reversed decades of precedent in Dobbs by overruling Roe and Casey’s constitutional right to abortion, state legislatures have been rushing to enact sweeping abortion bans and novel constitutional theories. Among the early novel fetal personhood laws to be enacted is Georgia’s Living Infants and Fairness Equality (LIFE) Act, which includes a provision that changes the legal definition of a person, whereby a taxpayer can claim a fetus as a dependent exemption for state tax purposes. 

Before Dobbs, common law efforts by plaintiffs to convince the courts to read interpretations of fetuses as dependents in existing tax law were uniformly rejected. Now, Georgia’s fetal personhood law opens the gates to a host of unanswered tax questions involving potential confusion between federal and state law, challenges to important definable tax terms, and questions of constitutionality. The history of opposition to abortion may reveal divided theories for how to reverse Roebut an undeterred, unified effort to bring about a nationwide ban on abortion. Redefining a legal person to include a fetus through the tax law is but one of many attempts to legislate abortion out of existence. In this paper, I urge an equally creative and persistent response to reversing Dobbs with attention paid to tax law. I ultimately propose strengthening the Internal Revenue Code to unambiguously exclude fetuses from the definition of dependent. 

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