Pregnant driver ticketed in Texas HOV lane says fetus is a passenger

When Brandy Bottone, who is 34 weeks pregnant, was stopped for driving her GMC in an HOV lane despite what appeared to be a single occupant in her car, the Plano, Texas, resident had a ready answer for the traffic cop: If lawmakers consider her fetus a person, it should be considered a passenger in her car as well.

That line of reasoning failed, at least with the cops: Bottone, 32, was issued a traffic ticket for violating the HOV lane restriction requiring two or more occupants. But she plans to fight it in court.

Bottone was stopped at an HOV checkpoint June 29 on the way to pick up her son, she told the Dallas Morning News. According to her description of events, the officer asked Bottone where the second occupant was. Bottone pointed toward her belly and explained that "with everything going on with the overturning of Roe v. Wade," her fetus was a passenger.

Bottone was citing the recent U.S. Supreme Court decision in Dobbs v Jackson Women's Health Organization, which overturned 1973's Roe v. Wade decision. The June 24 decision by Republican-appointed justices lets each state write up their own laws concerning abortion.

In Texas, the ruling activated a so-called "trigger law," which the Texas Tribune describes as banning all abortions from the moment of fertilization except in cases where the mother has health conditions that are life-threatening or that will result in "substantial impairment of major bodily function."

Back to the traffic stop: Bottone said the first officer who pulled her over told her, "I don't want to deal with this," and that the law only applied to two persons outside of the body. A second officer gave her the $215 ticket, but told her it would likely be dropped if she fought it in court.

According to Bottone, that's what really boiled her blood, that the officers gave her the ticket without a chance to discuss it. In subsequent interviews, she elaborated that the inconvenience of having to appear in traffic court was upsetting as well, particularly given the timing: Bottone's hearing is scheduled for July 20, two weeks before her due date. 

To be clear, the Department of Transportation counts infants and children as passengers in all 50 states. While a baby passenger does not take another would-be driver off the road, we're pretty sure any parent of a screaming toddler would appreciate the ability to get to their destination quicker.

Irrespective of Roe or when one believes a fetus becomes a child, it could easily be argued that if children count as passengers, then reducing traffic isn't the end-all, be-all of HOV lane use. In that case, pregnant women should probably be able to use the HOV lane, simply because there are a number of bodily functions and health-related issues that can appear unpredictably. 

“I find her argument creative, but I don’t believe based on the current itineration of Texas Transportation Code that her argument would likely succeed in front of an appellate court,” Chad Ruback, a Dallas-based appellate lawyer, told The Washington Post. “That being said, it’s entirely possible she could find a trial court judge who would award her for her creativity.”