Pregnant woman given HOV ticket argues fetus is passenger, post-Roe

A pregnant Texas woman who was ticketed for driving in the HOV lane is arguing that Roe v. Wade being overturned by the Supreme Court means that she should not have been cited because her fetus counted as a passenger.

Brandy Bottone was driving down Central Expressway in Dallas late last month when she was stopped by a sheriff’s deputy at an HOV checkpoint to see whether there were at least two occupants per vehicle as mandated. When the sheriff looked around her car, she recounted to KXAS, he asked: “Is it just you?”

"And I said, 'No, there's two of us,'" Bottone said. "And he said, 'Well, where's the other person?'"

Bottone, who was 34 weeks pregnant at the time, pointed to her stomach. Even though she said her “baby girl is right here,” Bottone said, one of the deputies she encountered on June 29 told her it had to be “two people outside of the body,” according to the Dallas Morning News, the first to report the story. While the state’s penal code recognizes a fetus as a person, the Texas Transportation Code does not.

“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,” she told the newspaper.

Bottone was issued a $215 ticket for driving alone in the two-or-more occupant lane — a citation she told local media she’d be challenging in court this month.

"I will be fighting it," she told the Morning News.

While the Texas Department of Transportation has not indicated whether it is weighing changing the transportation code, Bottone’s case is one that could move the state into “unchartered territory” following the June 24 ruling in Dobbs v. Jackson Women’s Health Organization, said Chad Ruback, a Dallas-based appellate attorney.

"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," he said. "That being said, it's entirely possible she could find a trial court judge who would award her for her creativity."

Ruback added: “This is a very unique situation in American jurisprudence.”

Bottone, 32, of Plano, Texas, did not immediately respond to a request for comment. It’s unclear whether she has an attorney. Representatives for the Dallas County Sheriff’s Department and Texas Department of Transportation did not immediately respond to requests for comment.

Bottone told the Morning News that she had been in a rush to pick up her son and decided to drive in the HOV lane since she “couldn’t be a minute late.”

Bottone said that while one of the deputies told her that the ticket would likely get dropped if she fought it, she was upset that the citation was issued in the first place, according to the Morning News.

"This has my blood boiling. How could this be fair? According to the new law, this is a life," she said. "I know this may fall on deaf ears, but as a woman, this was shocking."

Bottone maintained to KXAS that she hoped the Texas laws would be consistent on how unborn children are recognized.

"I really don't think it's right because one law is saying it one way but another law is saying it another way," she said.

She’s due in court on July 20, around the same time her daughter is due.