Pregnant Texas Woman Argues Her Fetus Count as a Passenger in the Carpool Lane

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Last month, Texas resident Brandy Bottone was pulled over for driving alone in a High Occupancy Vehicle lane. When the officer asked where her passenger was, she pointed to her 34-week-pregnant belly, claiming that after the Supreme Court decision in Dobbs v. Jackson Women’s Health that overturned Roe v. Wade, her fetus counted as a passenger. And Bottone might actually have the law on her side.

According to Texas state transportation code Sec. 452.0613, the state delegates the job of defining HOV eligibility to “executive committees,” meaning the directors of a regional transportation authority.

Screenshot: Texas.gov

The state’s Department of Transportation website breaks these down into an incomprehensible mess of public and private enforcement, but it clearly lays out six regions: Austin; Dallas-Forth Worth and North Texas; El Paso; Fort Worth; Houston; and San Antonio. Yes, Dallas-Fort Worth and Fort Worth are different regions. Maybe “clearly” was overstating things.

Bottone was traveling on U.S. Highway 75, approaching I-635, placing her in the North Texas regulatory region. On the website for that region, the Texas DOT site clearly states: “A vehicle occupied by two or more people or a motorcyclist may use HOV lanes.” So, case closed, right?

Screenshot from the Texas DOT website, stating: Who can use the HOV lane? A vehicle occupied by two or more people or a motorcyclist may use HOV lanes. Vehicles eligible to use HOV lanes include, but are not limited to: passenger cars pickup trucks vans buses motorcycles emergency vehicles responding to a call Note: Hybrid vehicles with single occupants are not allowed in HOV lanes.

Not quite. See, the topic at issue here is something called fetal personhood — essentially, whether a fetus is legally recognized as a human being. Bottone’s reasoning is that Texas’s abortion ban amounts to the state legally recognizing fetal personhood. And if a fetus is a person, the pregnant Bottone has two people in her vehicle when she’s driving in the HOV lane.

Does this argument stand up from a legal perspective? Texas’s abortion ban, SB 8 (lawmakers were so eager to ban abortion, they didn’t even spend the time to actually name the bill), defines a “human fetus or embryo in any stage of gestation from fertilization until birth” as an “unborn child,” and continually references that phrasing throughout, including making reference to the “life of the unborn child” independent from that of the mother. If a fetus is its own life, clearly Texas is recognizing fetal personhood, right?

Screenshot from Texas.gov, stating: (7) "Unborn child" means a human fetus or embryo in any stage of gestation from fertilization until birth.

While Texas has outlawed abortion after the detection of a “fetal heartbeat” (which, should be noted, is not a heartbeat at all), the bill at issue doesn’t explicitly grant personhood to the fetus. This is not due to a lack of desire from lawmakers, but rather a result of the fact that Roe v. Wade and Casey v. Planned Parenthood stood as legal precedent at the time Texas lawmakers wrote their legislation. Texas lawmakers may have also been concerned about the 14th Amendment to the U.S. constitution, which grants citizenship to anyone born in the U.S. If a fetus is a person, does that mean anyone conceived in the United States is automatically a citizen?

Since SB 8 doesn’t specifically grant fetal personhood, Bottone isn’t likely to convince a judge that pregnant people can drive solo in the HOV lane. Still, it’s a compelling way to show Texas lawmakers the unforeseen consequences of their actions.