Book Excerpt: “Personhood: The New Civil War over Reproduction,” by Mary Ziegler

In the summer of 2022, a conservative supermajority of the United States Supreme Court overturned Roe v. Wade, the famed 1973 decision recognizing a right to choose abortion. Many Americans struggled to understand how something they considered a fundamental right could simply be wiped away. Still others were terrified that the Court’s decision in Dobbs v. Jackson Women’s Health Organization would make pregnancy in the United States more dangerous than it already was. For abortion foes, of course, Dobbs brought a very different kind of news. Reporters described the decision as a stunning win for the American right, a sign of American abortion opponents’ strength and the conservative legal movement’s savvy.

Almost three years later, it’s no surprise that progressives haven’t given up the fight for reproductive rights. Despite Republicans’ strong performance in 2024, ballot initiatives on the topic continue to succeed (with seven out of ten passing in the last election alone). Cases in federal and state court continue to question the adequacy of abortion bans when women’s life or health is threatened, or defend the religious liberty of doctors or patients to pursue abortion under certain circumstances.

But it’s become increasingly obvious that the end of Roe wasn’t enough for abortion opponents either. They are pushing to defund Planned Parenthood, eliminate access to mifepristone, a drug used in more than half of all abortions, and use the Comstock Act, a nineteenth-century obscenity law, as an abortion ban, and all of that is just the beginning. That’s because the reversal of Roe was never the U.S. antiabortion movement’s ultimate goal. From its inception in the 1960s, it has always been a fetal-personhood movement.

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Fetal personhood can mean different things in various faith traditions. Bioethicists or philosophers who use the term often mean something quite different too. In U.S. politics, fetal personhood is most significantly a claim about the meaning of the nation’s Constitution: that a fetus is a separate, unique human individual from the moment of fertilization, and second, that because of that biological and moral uniqueness, the Constitution gives (or at least should give) that individual rights.

Neither of these claims has anything like universal support. Polling, for example, suggests that Americans hold a variety of views about when human life begins. Majorities support the idea of a right to choose abortion. As important, there have always been disagreements about what it means to recognize personhood. Does recognizing personhood mean the United States has to criminalize most or even all abortions? What about IVF? And how can the rights of fetal persons be balanced against those of other persons, including pregnant women?

Throughout the past half century, even abortion opponents have disagreed about how to guarantee fetal equality. But there has been no difference of opinion among abortion foes on the importance of securing personhood, whether through a constitutional amendment or a judicial decision. The fight for it has become one of the major American political mobilizations of the past fifty years.

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Abortion opponents are gearing up for the next Roe — a fight that will unfold over decades that has every chance to reshape the experience of infertility and pregnancy for Americans across the country. Antiabortion leaders argue today that the framers of the Fourteenth Amendment, which guarantees rights to due process and equal protection under the law, meant the word person in that part of the Constitution to apply from the moment of conception. As a result, argue these right-to-lifers, liberal laws on abortion or even IVF are unconstitutional.

These originalist arguments for constitutional fetal personhood are spreading in conservative legal circles. And yet the fight for constitutional fetal rights began relatively recently. The antiabortion movement of the nineteenth century championed the idea that human life begins at conception. But the physicians who led the campaign to criminalize abortion throughout pregnancy made arguments about biology and morality, not the Constitution. The men who wrote the Fourteenth Amendment said nothing about abortion in their debates. And state lawmakers criminalizing abortion in the late nineteenth century said nothing to suggest they felt constitutionally obligated to act.

The real forerunners of today’s conservative antiabortion originalists got active in the 196os. At the time, a growing group of reformers argued that existing criminal bans had deeply unequal effects. While wealthier women could access safe therapeutic procedures, low-income patients, many of them patients of color, still induced their own abortions and suffered comparably high rates of maternal morbidity and mortality. Reformers pointed to these deaths and injuries in demanding new exceptions to criminal laws. Antiabortion lawyers, theologians, and activists first replied that the exceptions were unnecessary or immoral. When these claims were unavailing, abortion opponents argued that reform itself was unconstitutional — and that the word person in the Constitution applied the moment an egg was fertilized.

Fetal-personhood politics took shape at a time when the constitutional law of equal protection was in flux. Following a series of decisions, including the landmark desegregation ruling in Brown v. Board of Education (1954), race became the classic “suspect classification,” and the Supreme Court scrutinized laws that distinguished people on that basis. As the battle over abortion reform continued, competing ideas about equality multiplied — in the context of abortion and well beyond it. While the lawyers of the National Association for the Advancement of Colored People sought to enforce Brown’s desegregation mandate in the courts, local Black leaders sought to increase the number of Black teachers, improve the quality of schools in Black neighborhoods, and achieve socioeconomic equality. The National Organization for Women, founded in 1966 to demand “a fully equal partnership of the sexes,” called for the legalization of abortion in 1967. Ideas of equality developed by the women’s movement and civil rights movement were complex and varied but shared a focus on the legacy left behind by past injustice.

Rather than defining their cause by reference to religion or gender politics, antiabortion activists more often argued that the legalization of abortion threatened to make the unborn more marginalized than any group in America. The courts, in interpreting the Equal Protection Clause, had begun pointing to the fallout a group faced from years of discrimination. Antiabortion activists, by contrast, believed that American law and culture had long defended the unborn child. But a lack of historic prejudice struck the antiabortion leaders of the 1960s as of at most secondary importance: physical dependence and weakness, not past injustice or present political powerlessness, should be the central concern of the Equal Protection Clause.

As the decade continued, the reform movement largely gave way to a fight to repeal all criminal abortion laws. Feminist activists and other proponents of repeal contended that both old abortion bans and new attempts to write fetal rights into the law involved sex discrimination because they reflected damaging stereotypes about sex and denied women even medically needed care. Antiabortion groups responded by echoing ideas articulated by those challenging affirmative action programs or judicial integration orders. White moderates, anxious about the rise of the Black power movement, the spread of violent resistance in the South, and unrest in urban centers across the country, called for a different approach to civil rights they claimed would lower the political temperature. Rather than addressing the history of racial subordination, these advocates argued that affirmative action programs or even educational programs about race were the problem, not the solution. And these scholars and activists reasoned that the Constitution banned not subordination but categorization: creating programs that grouped people by racial identity without honoring their individuality.

As they formed single-issue groups in the late 1960s and early 1970s, abortion opponents claimed that the fight for fetal personhood combatted the same kind of insidious classification. True equality was not about membership in a marginalized group, they argued. What mattered was the failure to treat anyone, including an unborn child, as a unique individual, and that, antiabortion activists argued, was precisely what the repeal of abortion laws accomplished by categorizing the fetus based on residence in the womb.

Nevertheless, members of the antiabortion movement remained divided about the relationship of personhood to other equality struggles of the day, from the fight for new civil-rights legislation to the struggle to end sex discrimination through ratification of a federal Equal Rights Amendment. The good news was that personhood was vague. It still is today, and that is part of why it has remained so resonant for sometimes-fractious activists and organizations: the idea is fluid enough to allow activists who disagreed about the meaning of equality to fight for the same cause.

In other countries, recognizing fetal personhood isn’t always synonymous with the criminalization of abortion either. That was true for some in the antiabortion movement too. After the Supreme Court decided Roe v. Wade in 1973, the movement hardly gave up on the idea of fetal personhood, instead writing it into various constitutional amendments that the GOP called the Human Life Amendment. Proposals for this kind of personhood amendment were a central part of the Republican platform in 2024, when they were replaced with coded references to the idea that the Constitution already recognized personhood.

When the idea of a fetal personhood amendment seemed more realistic, in the 1970s, abortion opponents debated how the idea would be enforced. Would recognizing personhood mean that states and the federal government would have to do more to support pregnant women, or even new parents? Would recognizing personhood mean that states couldn’t allow for abortion exceptions for rape or incest, or even the life of the mother? And would women have to face punishment for abortion if they were prosecuted for the homicides of other people?

By the mid-1980s, it became clear that a personhood constitutional amendment wasn’t going anywhere. Instead of disappearing, though, personhood arguments only went underground. At a time when the Republican Party had declared a new war on crime, with mandatory minimum sentences, new private prisons, and calls to crack down on drug offenses, antiabortion leaders updated their vision of personhood, painting the fetus as a victim of violent crime, and arguing that justice required not more support for pregnant patients but harsher penalties for anyone who wronged an unborn child. The movement championed new laws criminalizing fetal homicide and championed prosecutions of women who used drugs during pregnancy.

The antiabortion movement also changed its approach to the Constitution to accommodate new conservative allies. Before the 1980s, neither political party had consistently aligned with the antiabortion movement, but Ronald Reagan changed that. Not long after his election, the Federalist Society began to create a powerful network for conservative lawyers, judges, and professors. Leading figures in the Federalist Society advocated for originalism, a method of constitutional interpretation that revolved around what its proponents described as the original intent of the Constitution’s framers or, later, the original public meaning of its text. Christian conservatives and single-issue antiabortion activists borrowed from originalism but did not always warmly embrace it. Some were unsure that originalist interpretations would deliver the victories they sought. Others wanted to incorporate traditions, including Christian ones, that predated the founding — or look to evidence from decades long after the Constitution’s ratification.

These antiabortion activists and their allies therefore looked to other judicial approaches, suggesting that courts should protect rights under the Fourteenth Amendment only if they were deeply rooted in unchanging national traditions.

In the 1990s, antiabortion leaders defined themselves as champions of equality for both women and the unborn, portraying both as victims of an industry as well funded and unscrupulous as “Big Tobacco.” The antiabortion movement advocated for “right-to-know” laws that transformed arguments for fetal rights into information wrongly denied women considering abortion. Defining both women and fetuses as victims helped the antiabortion movement to soften its image at a time when the murder of doctors made headlines — and when those doctors’ attackers claimed that they had justifiably used force to protect the lives of fetal persons. In the 2000s and 2010s, ideas of equality for the fetus also shaped and reflected conversations about whether conservative Christians suffered from or perpetuated discrimination, what defined religious liberty, and what it meant to recognize rights for major corporations.

Remarkably, calls for fetal personhood captivated many on the American right for more than half a century, from the passage of the Civil Rights Act to the decision of Roe to the demise of abortion rights and the ascendancy of new bans. Personhood has this hold on the American imagination because social conservatives, too, have seen themselves as champions of equality, committed to eradicating discrimination in the United States, and because they have offered quite different ideas about what equality is and how it can be achieved. In the pursuit of equal justice for the fetus, antiabortion groups aren’t just talking about abortion. They’re also drawing on debates about race, reverse discrimination, and affirmative action, about criminal justice, victim’s rights, and the welfare state, about consumer protection and sex discrimination, and about religious liberty and corporate power.

Those championing fetal personhood have already succeeded in eliminating what many viewed as a fundamental right. In the next fifty years, the movement’s quest for personhood could have even further-reaching effects. We saw that last year when the Alabama Supreme Court declared embryos to be children for the purpose of the state’s law on the wrongful death of minors. The ruling temporarily put a halt to IVF in the state and supercharged conservative opposition to IVF. Prominent antiabortion groups, from the Heritage Foundation to Students for Life, have launched new campaigns against IVF. Some seek to require that IVF users be genetically related to the embryos they create — an idea reflected in Project 2025 that would functionally exclude same-sex couples. Others could rule out the destruction or even indefinite storage of embryos that abortion foes view as rights-holding personhood. This fight has already influenced the Southern Baptist Convention, a powerhouse in evangelical America, that passed a resolution calling for IVF restrictions last year.

We also see the effects of the brewing fight over personhood in a series of bills this session about whether states that ban abortion should treat it as murder and authorize the punishment of women. The more realistic the recognition of personhood becomes, the more divided the movement has become about whether it is logically consistent to recognize personhood and allow exceptions — or exempt women from punishment.

But if history teaches us anything about personhood, it is that there is nothing inevitable about the turn we have taken in this country, one in which Americans equate fetal protection with criminal punishment. Polls have sometimes shown that a cohort of Americans believe that life begins at conception, and that fetal life has value, while opposing laws criminalizing abortion or IVF. There is nothing inherently contradictory or strange about this position, even if our politics make little room for Americans who think this way. It is more important than ever to think through what it means to value life, in the womb and for people who are pregnant — and to make sense of whether equality really requires punishment rather than support for the woman carrying a fetal life. That’s because regardless of what we mean by personhood — and whose rights or humanity it might erase — the truth is that fights over reproduction in the United States are just getting started. And the meaning of equality well beyond the context of abortion is on the line.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law. Her new book, “Personhood: The New Civil War over Reproduction,” is now available.

Suggested Citation: Mary Ziegler, Book Excerpt: “Personhood: The New Civil War over Reproduction,” by Mary Ziegler, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Apr. 24, 2025), https://statecourtreport.org/our-work/analysis-opinion/book-excerpt-personhood-new-civil-war-over-reproduction-mary-ziegler