As the Washington Post reported earlier this long, hot, summer, a pregnant Texas woman who was driving along in the HOV lane on Dallas’ Central Expressway, was given a ticket for not having a passenger with her.
Brandy Bottone, 34 weeks pregnant, argued that her vehicle did indeed fit the HOV lane definition as she did have a passenger. You guessed it – her unborn child.
According to another report by NBC Dallas-Ft. Worth, Bottone said:
“Well (I’m) not trying to throw a political mix here, but with everything going on (with Roe v. Wade), this counts as a baby.”
Aside from this Dallas case being a much-needed somewhat lighthearted poke at where we are today with Roe and Dobbs, the Mississippi case the Supreme Court used to essentially overturned Roe, the longer we think about Brandy Bottone driving up the HOV lane, we should ask ourselves “Is there any there there?”
I asked three lawyers for their take, through a legal lens, on Bottone’s argument. Each of them have many years of experience with highway accidents and regulations. I found their answers on this new wrinkle in the law to be fascinating.
Charlie Cartwright, a South Florida lawyer, argued that this just might work:
“The Texas legislature considers a ‘fertilized egg,’ an ‘embryo’ and a ‘fetus’ to be ‘an unborn child.’ So, why would this ‘child’ not be considered a passenger as compared to any other child? Given Texas law, the regulation seems vague. And the way Texas handles the HOV lane use law is also vague.”
Cartwright found that this HOV rule is not codified by statute but left to an executive committee which then passes the authority to an executive director. As such, drivers such as Brandy Bottone don’t have notice as to what constitutes a violation.
“If Texas wants to enforce this as to women in Ms. Bottone’s circumstances, they need to pass an act that specifically describes this circumstance given the recent abortion statutes Texas has passed.”
As to what the courts are going to see here, Cartwright added an interesting perspective:
“A court might consider the law itself regarding the HOV lane as vague under these circumstances. Why would we be opposed to pregnant women using the HOV lane, anyway?
According to news reports, the police officers were assigned the task of targeting HOV violators. Likely, they wanted to write as many tickets for HOV violations as possible. But, if this woman was visibly pregnant or the officer believed she was truthful in her representation that she was pregnant, the officer should have walked away from this one and just given her a warning..”
When I talked to Dayle Benavides Lopez, she focused on how unique Bottone’s argument was:
“This case is an example of the legal questions that are left pending in the aftermath of the overturn of Roe v. Wade. I find her argument creative but I do not think it will ultimately succeed because the court will focus on the intent and purpose of the Texas Transportation Code and will most likely avoid the controversial Roe v. Wade debate of whether an unborn child is considered a person.”
This position is echoed by Tim George, who also explored the judicial angle:
“At first glance, a pregnant woman driving with a baby wouldn’t meet the HOV definition in any state that required two or more people to be in the vehicle. This just isn’t what highway codes were imagining. Yet the interesting question is what a court would allow given today’s political and legal climate.”
Finally, Joe Froetschel, points out that while Bottone will more than likely fail here, her argument lays an interesting foundation:
“Landmark changes in the law often have unintended consequences that influence other areas of the law and life. Based upon the holding in Dobbs this driver is mixing apples and oranges a bit legally, but it may be an early example of that ripple effect, especially as more states try to codify when life begins.”
From my perspective as someone who has covered not only Dobbs but the many other cases the Court elected not to grant certiorari, the entire point of Dobbs was to create a precedent that judges across the nation would follow in considering state action on abortion. Since Dobbs was centered on the question of whether fetuses could experience pain after 15 weeks, and, if so, Mississippi’s 15-week abortion ban should be constitutional, then it logically follows that personhood can’t be elective. In other words, if a fetus can’t be aborted after 15 weeks, then it should have rights and protections emanating from its personhood. Such as driving in the HOV lane.
It’s also interesting that the Texas case here is a 34-week pregnancy. Even in the lost era of Roe, viability was argued to occur at 24 weeks. So no one on any side of this argument would argue that a 34-week-old fetus isn’t viable. Seems like a plausible argument that if we’re in the age of according new rights to fetuses, high occupancy travel on Texas highways would be a good one.
Given the intensity of political dialogue since the Dobbs leak, this HOV lane scenario really is a way for us to step back and consider the subsequent logical steps of granting personhood for very early-term fetuses.
As Charlie Cartwright told me at the end of our interview:
“Essentially, what this HOV lane issue highlights is that the state is burdening women with a child at fertilization, and, at the same time, taking away one of the small legal benefits of having a child.”
For Bottone herself, this low-speed drama is heading in the right direction. She announced two weeks ago that she had indeed given birth to her passenger in issue, and still plans to contest the $275 ticket she received.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.