Can Pregnant Woman Drive in HOV Lane?

An absurd extension of the fight over abortion.

Dallas Morning News (“Pregnant woman says her fetus should count as a passenger in HOV lanes. She got a ticket“):

In economics, they call it the law of unintended consequences.

An event ultimately produces an outcome, sometimes negative, that was not expected.

That’s what is happening to Brandy Bottone of Plano, a mother who is 34 weeks into her pregnancy.

On June 29 she was driving on U.S. Highway 75 South and headed to the Interstate 635 West interchange. But she had to slam on the brakes because … well, I’ll let her tell the story:

“I was driving to pick up my son. I knew I couldn’t be a minute late, so I took the HOV [high-occupancy vehicle] lane. As I exited the HOV, there was a checkpoint at the end of the exit. I slammed on my brakes, and I was pulled over by police.

“An officer peeked in and asked, ‘Is there anybody else in the car?’

“I said, ‘Well, yes.’

“He asked, ‘Where?’

“I pointed to my stomach and said, ‘My baby girl is right here. She is a person.’

“He said, ‘Oh, no. It’s got to be two people outside of the body.’

“One officer kind of brushed me off when I mentioned this is a living child, according to everything that’s going on with the overturning of Roe v. Wade. ‘So I don’t know why you’re not seeing that,’ I said.

“He was like, ‘I don’t want to deal with this.’ He said, ‘Ma’am, it means two persons outside of the body.’

“He waved me on to the next cop who gave me a citation and said, ‘If you fight it, it will most likely get dropped.’

“But they still gave me a ticket. So my $215 ticket was written to cause inconvenience?

“This has my blood boiling. How could this be fair? According to the new law, this is a life.

“I know this may fall on deaf ears, but as a woman, this was shocking.”

It’s difficult to discern from the text whether the woman is a moron or an epic troll. Either way, the contention is amusing.

I asked Amy O’Donnell, spokeswoman for Texas Alliance for Life, an anti-abortion group, what she thought of this unusual situation.

She replied, “While the penal code in Texas recognizes an unborn child as a person in our state, the Texas Transportation Code does not specify the same. And a child residing in a mother’s womb is not taking up an extra seat. And with only one occupant taking up a seat, the car did not meet the criteria needed to drive in that lane.”

It’s not at all unusual for something to meet a definition in some instances and not others. In this case, it’s perfectly reasonable to consider the unborn child a person in a criminal context but not for the purposes of an HOV lane.

If one murders a pregnant woman and thereby also kills her unborn child—or assaults her, thereby killing the child—the harm to the community and to the victim’s loved ones is undeniably higher than if she had not been pregnant.

At the same time, considering that the fetus is physically unable to occupy a separate seat in the car, it makes no sense to count it as an additional vehicle occupant. Then again, since HOV lanes became part of my life 20 years ago, considered it absurd to count children under the legal driving age—a position formed when I was single and maintained the last 13 years despite having children. The whole point is to encourage people to consolidate trips in order to reduce traffic congestion, fuel consumption, pollution, and the like. The kids aren’t going to be driving. (This, of course, is only true if it’s one’s own kids. Neighborhood carpools to alternate taking multiple kids to school or various activities would, indeed, meet the intent of the law.)

Further, were we to take Bottone’s argument seriously, the officer should have ticketed her for having a baby in the front seat. Clearly, at that age, it should have been in a rear-facing car seat.

FILED UNDER: Law and the Courts, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kathy says:

    The American Taliban are not unique in wanting to have their cake and eat it, too.

    18
  2. OzarkHillbilly says:

    it’s perfectly reasonable to consider the unborn child a person in a criminal context

    James, what have you been told about making assumptions?

    FTR, I applaud this woman’s creative trolling and encourage her to fight the ticket all the way to the USSC.

    20
  3. James Joyner says:

    @Kathy: @OzarkHillbilly: I don’t think there’s a developed country where the fetus isn’t considered a person in cases where the mother is murdered or where the mother loses the pregnancy as a direct result of criminal conduct. And, yet, most if not all developed societies allow women to choose to abort the fetus under at least some circumstances. We’re complicated creatures capable of holding contradictory thoughts in our brains.

    6
  4. Tony W says:

    I’m with the Texas woman. The fetus is either a person – deserving of the protections and benefits of the law – or it is a zygote until it is born, dependent on the mother.

    This one is even more interesting because the fetus is far enough along to be viable outside the womb.

    The State of Texas wants it both ways.

    And, by the way, the “baby in the front seat” argument is a terrific argument against Texas identifying fetuses as children. It’s a great self-own.

    The law is full of instances where they explicitly say that life begins at birth – DOB appears on your frikken driver’s license, not “Date of Conception”.

    16
  5. Tony W says:

    And – I look forward to 20-1/4 year olds trying to buy liquor in Texas next, then suing when they cannot.

    13
  6. Lost in Quebec says:

    Am I still a vegetarian if I eat animal crackers?

    1
  7. CSK says:

    @James Joyner:
    I think in cases where a pregnant woman is murdered, the legal assumption may be that she intended to carry the child to term and deliver it, thus the crime is a double homicide.

    4
  8. MarkedMan says:

    @James Joyner:

    I don’t think there’s a developed country where the fetus isn’t considered a person in cases where the mother is murdered or where the mother loses the pregnancy as a direct result of criminal conduct.

    This isn’t even true in every state. Here’s a 1994 article from the NYT, which also shows that the HOV thing isn’t new:

    The question of “fetal personhood” has come up in a wide range of cases. In recent years courts have heard claims that a fetus should be entitled to a tax deduction, that a pregnant prisoner should be freed because her fetus could not be jailed without a trial, that a pregnant driver was entitled to use the car-pool lane because she was carrying a passenger, and that pregnant women who took drugs should be prosecuted under laws that prohibit giving drugs to minors.
    In those situations courts have generally ruled that a fetus should not be considered a person.

    But more than half the states have either legislation or court rulings saying that where an assault on a pregnant woman results in the death of the fetus, the fetus can be considered a person for the purpose of bringing homicide charges.

    Some of those laws specifically provide that the fetus must be viable before it can be given the legal status of personhood. Generally, the threshold of viability is about 26 weeks, or six months of pregnancy.

    7
  9. MarkedMan says:

    @James Joyner: Oh, and the only way the subject of abortion is even tangentially appears in the Bible is in the Old Testament when penalties aren’t being listed for various crimes:

    In Exodus 21:22 it states that if a man causes a woman to have a miscarriage, he shall be fined; however, if the woman dies then he will be put to death. It should be apparent from this that the aborted fetus is not considered a living human being since the resulting punishment for the abortion is nothing more than a fine; it is not classified by the bible as a capital offense.

    3
  10. James Joyner says:

    @Tony W: Even the majority in Roe acknowledged that the state had a valid interest in protecting the life of the fetus. They just ruled that it didn’t outweigh the woman’s privacy interest until the third trimester. The Casey majority modified that slightly to “viability.”

    @Tony W: @CSK: My point is simply that, even in states with essentially unfettered rights to abortion, we consider the fetus to have personhood in some circumstances. And, even in states that make it very difficult to have an abortion and declare the fetus to be a person from the moment of conception, they tend to allow exceptions for the life/health of the mother, rape, incest, and even extreme fetal deformity. It’s complicated but not hypocritical.

    @MarkedMan: So?

  11. CSK says:

    @James Joyner:
    I’m not disputing you.

  12. gVOR08 says:

    @MarkedMan: Indeed. Although there’s also the bit that may or may not be instruction for a priest to administer an abortificant to a pregnant woman suspected of infidelity. And as best I can make out, ancient Hebrews, like most of the Graeco-Roman world, practiced exposure of unwanted infants. And abortion was legal in some states and some circumstances in the U. S. in the late 1700s. And not banned by the Catholic Church until the mid 1800s. But I’m sure, as we speak, the Federalist Society has law students and conservative “think” tank interns combing through obscure old books, newspapers, legal opinions, legal writing, diaries, and correspondence desperately searching for something Thomas and Scalia can use to declare fetal personhood is “deeply rooted” in our history.

  13. Jim Brown 32 says:

    Here’s a SCOTUS challenge:

    Eggs fertilized and implanted on US soil should be granted citizenship. Basically the entire argument of the Right is that zygotes are a protected class.

    Let’s trot down the limits of that path in ways that are antithetical to their shitty belief systems.

    9
  14. MarkedMan says:

    @James Joyner: My point was that, contrary to what you said, a fetus has not been considered legally equivalent to a person in either recent pre-Roe times or even historically. My understanding is that in the rare cases it is mentioned at all, it was not even considered a being, much less a person, until the quickening, when the mother starts to feel it kicking.

    7
  15. Dutchgirl says:

    I remember doing these thought experiments over a decade ago: would a 17 year old be able to vote, pregnant people in the hov lane etc. But it doesn’t matter. A pregnant person must be legally and safely able to maintain bodily autonomy. Full stop. Everything else is arguing at the edges or in bad faith. I’m too exhausted to find any of this amusing. Its not academic to me or my daughter.

    6
  16. drj says:

    I think this story illustrates nicely how horrible the Dobbs decision was.

    The Texas woman appears to have assumed (reasonably I would say) that the only reason that SCOTUS took away bodily autonomy from women was to protect the rights of the unborn.

    (Which, while wrong – pre-viability, at least – has the benefit of being defensible.)

    But that is not what happened. Because if we were to grant a brainless lump of cells rights, we would have to assume the existence of a soul – which (I guess) would run afoul of the Establishment Clause.

    Rather, SCOTUS basically said that people have no right to privacy and that, therefore, states could legally regulate their inhabitants’ medical decisions – even in the absence of a compelling state interest!

    How horrible is that?

    All trolling (deliberately or not) that highlights the absurdity of Dobbs should be welcomed.

    3
  17. Just nutha ignint cracker says:

    @Lost in Quebec: Mock if you must, but one store I shop at sells vegan Animal Crackers–and it’s not even a Whole Foods or New Seasons.

    1
  18. James Joyner says:

    @MarkedMan: I’m not making an argument about abortion at all. I’m simply noting that we’ve long split the difference on this, treating the fetus as a person sometimes and not others. Just as we treat 18-year-olds as adults for some things and not others. (Or, hell, try 13-year-olds as adults for murder while not allowing them to see an R-rated movie by themselves.)

  19. Just nutha ignint cracker says:

    @Dutchgirl: “I’m too exhausted to find any of this amusing. Its not academic to me or my daughter.”

    You’re certainly correct. Unfortunately, the issue may well be “only politics” within the corridors of power of our country. 🙁

    1
  20. Chip Daniels says:

    The most logical conclusion, from a Republican point of view, is that no, a pregnant woman cannot drive in the HOV lane because there is still only one person in the vessel*.

    No, that is not a typo.

    3
  21. MarkedMan says:

    @James Joyner:

    I’m simply noting that we’ve long split the difference on this, treating the fetus as a person sometimes and not others.

    I agree with you there in general, but there has been a fair amount of retconning in this. The human status of the fetus was never from “at conception” anywhere in the world until after Roe, as far as I know.

    1
  22. Gustopher says:

    Skipping the legal issues — don’t pregnant women have to pee a lot?

    Let her use the HOV lane, she’s got places to go (the bathroom) and things to do (pee).

    3
  23. R.Dave says:

    It’s not at all unusual for something to meet a definition in some instances and not others. In this case, it’s perfectly reasonable to consider the unborn child a person in a criminal context but not for the purposes of an HOV lane.

    True, but you have to actually write the laws accordingly to accomplish that. I don’t know how the TX statutes in question are written, but a lot of these fetal personhood laws making the rounds in recent years have been wildly broad, basically declaring the fetus to be a person for all purposes under the law (see this story re an AZ law being challenged on vagueness grounds, for example). Similarly, there’s a push in some pro-life circles to get fetuses to be recognized as “persons” for purposes of the 14th Amendment in order to make laws permitting abortion unconstitutional.

    2
  24. Just nutha says:

    @Chip Daniels: That was cold, but, no, I don’t see a typo either. ☹️

    1
  25. de stijl says:

    @Chip Daniels:
    @Just nutha:

    Strictly for argumentation sake, I often use a parasite / host metaphor.