By Mary Ziegler
Ms. Ziegler is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”
Two months after the fall of Roe v. Wade, abortion has been banned or severely restricted in at least 14 states, energizing leaders of the anti-abortion movement but also activating voters who are opposed to many of these measures. With so much at stake in the next few election cycles — and women’s lives hanging in the balance — both sides of this fight are strategizing their next moves.
For the anti-abortion movement, the emerging plan is an all-out fight for fetal personhood. In many ways this is no surprise — since the 1960s, the movement’s ultimate goal has been to secure legal protections for fetuses and embryos, despite the harm that could be done to the health and livelihoods of pregnant women. The recognition of fetal personhood nationwide could mean a total ban on abortion for everyone in the United States, and if an increasingly sophisticated minority of anti-abortion extremists have their way, many more women would face criminal charges for ending their pregnancies.
What’s striking about this post-Roe push is the speed with which even moderate anti-abortion actors have embraced a punitive interpretation of fetal personhood, despite clear political headwinds. Even if this fight for fetal personhood doesn’t result in a full nationwide abortion ban, it could lead to personhood becoming more accepted at the state level and in the courts, pitting the interests of fetuses and women against each other and diminishing legal equality for women.
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Since the Dobbs v. Jackson Women’s Health Organization decision came down in late June, a Georgia law has gone into effect defining a “natural person” as “any human being including an unborn child” and giving a $3,000 tax break for pregnancies after about six weeks. An Arizona statute that defines fetal rights from conception is being fought in court. Leading anti-abortion groups are developing plans for a federal abortion ban that could include recognition of fetal personhood, and prominent anti-abortion commentators have said that it is “not a far leap from Dobbs to constitutional personhood.” So-called abortion abolitionists, who favor punishing pregnant patients for abortion, argue that full recognition of personhood requires “the same legal penalty as murdering or being an accomplice to the murder of a born human being.”
Americans United for Life, long viewed as one of the movement’s more pragmatic organizations, is pushing a federal fetal personhood strategy, too. The group’s so-called Lincoln Proposal is a suggested executive order that would “interpret the 14th Amendment’s safeguards of due process and equal protection to extend to all human beings, born and not yet born.” Under the plan, fetuses would be counted in the census and the Department of Justice would investigate laws or policies that “deprive preborn persons of due process of law or the equal protection of the laws.”
It’s important to prepare for the possibility that these proposals will continue to flourish, in part by understanding the history of the fetal personhood movement. Personhood has appealed to a divided anti-abortion movement for over 50 years. For those who were sympathetic to the civil rights movement for people of color or the fight for women’s equality, such arguments positioned the anti-abortion movement as a similar cause. For conservatives skeptical of the civil rights movement, personhood offered something, too: the claim that abortion was a far worse form of discrimination than anything suffered by women and people of color. It suggested that what really mattered when it came to equality under the law was not a long history of subordination, like that experienced by people of color, but physical vulnerability and dependence.
After Roe v. Wade in the 1970s, anti-abortion leaders rallied around a constitutional amendment that would have codified fetal personhood and banned abortion nationwide. But it never received much traction, and profound unanswered questions remained about how anyone would enforce personhood protections even if they passed. Would states have to do anything to help people who were pregnant in the name of honoring fetal rights? Did passing a personhood amendment require states to treat abortion as murder? Some discussed the solution of legal guardians for fetuses who could prevent abortions from taking place.
Ms. Ziegler is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”
Two months after the fall of Roe v. Wade, abortion has been banned or severely restricted in at least 14 states, energizing leaders of the anti-abortion movement but also activating voters who are opposed to many of these measures. With so much at stake in the next few election cycles — and women’s lives hanging in the balance — both sides of this fight are strategizing their next moves.
For the anti-abortion movement, the emerging plan is an all-out fight for fetal personhood. In many ways this is no surprise — since the 1960s, the movement’s ultimate goal has been to secure legal protections for fetuses and embryos, despite the harm that could be done to the health and livelihoods of pregnant women. The recognition of fetal personhood nationwide could mean a total ban on abortion for everyone in the United States, and if an increasingly sophisticated minority of anti-abortion extremists have their way, many more women would face criminal charges for ending their pregnancies.
What’s striking about this post-Roe push is the speed with which even moderate anti-abortion actors have embraced a punitive interpretation of fetal personhood, despite clear political headwinds. Even if this fight for fetal personhood doesn’t result in a full nationwide abortion ban, it could lead to personhood becoming more accepted at the state level and in the courts, pitting the interests of fetuses and women against each other and diminishing legal equality for women.
Advertisement
Continue reading the main story
Since the Dobbs v. Jackson Women’s Health Organization decision came down in late June, a Georgia law has gone into effect defining a “natural person” as “any human being including an unborn child” and giving a $3,000 tax break for pregnancies after about six weeks. An Arizona statute that defines fetal rights from conception is being fought in court. Leading anti-abortion groups are developing plans for a federal abortion ban that could include recognition of fetal personhood, and prominent anti-abortion commentators have said that it is “not a far leap from Dobbs to constitutional personhood.” So-called abortion abolitionists, who favor punishing pregnant patients for abortion, argue that full recognition of personhood requires “the same legal penalty as murdering or being an accomplice to the murder of a born human being.”
Americans United for Life, long viewed as one of the movement’s more pragmatic organizations, is pushing a federal fetal personhood strategy, too. The group’s so-called Lincoln Proposal is a suggested executive order that would “interpret the 14th Amendment’s safeguards of due process and equal protection to extend to all human beings, born and not yet born.” Under the plan, fetuses would be counted in the census and the Department of Justice would investigate laws or policies that “deprive preborn persons of due process of law or the equal protection of the laws.”
It’s important to prepare for the possibility that these proposals will continue to flourish, in part by understanding the history of the fetal personhood movement. Personhood has appealed to a divided anti-abortion movement for over 50 years. For those who were sympathetic to the civil rights movement for people of color or the fight for women’s equality, such arguments positioned the anti-abortion movement as a similar cause. For conservatives skeptical of the civil rights movement, personhood offered something, too: the claim that abortion was a far worse form of discrimination than anything suffered by women and people of color. It suggested that what really mattered when it came to equality under the law was not a long history of subordination, like that experienced by people of color, but physical vulnerability and dependence.
After Roe v. Wade in the 1970s, anti-abortion leaders rallied around a constitutional amendment that would have codified fetal personhood and banned abortion nationwide. But it never received much traction, and profound unanswered questions remained about how anyone would enforce personhood protections even if they passed. Would states have to do anything to help people who were pregnant in the name of honoring fetal rights? Did passing a personhood amendment require states to treat abortion as murder? Some discussed the solution of legal guardians for fetuses who could prevent abortions from taking place.
Opinion | The Next Step in the Anti-Abortion Playbook Is Becoming Clear
Despite clear political headwinds, the movement has embraced a push for fetal personhood.
www.nytimes.com