The antiabortion movement took a loss this month when the Supreme Court turned away an appeal centered on fetal personhood, the claim that fetuses hold constitutional rights and that abortion is unconstitutional. But don’t be surprised when this issue eventually comes back to the court, because antiabortion activists will follow the same years-long strategy that paid off with the overturning of Roe v. Wade.
The case began with a Rhode Island law that codified abortion rights. Two antiabortion groups and two pregnant women sued, arguing that the law violated constitutional fetal rights. The abortion opponents lost in the Rhode Island Supreme Court and asked the US Supreme Court to take a second look. The court’s conservative supermajority turned them away.
Although the same majority on the Supreme Court dismantled the right to choose abortion and held that Roe v. Wade was “egregiously wrong,” fetal personhood, at least for the moment, is a different story. Granting personhood would mean a national ban on abortion and a declaration that those who end a pregnancy are violating civil rights.
In his concurring opinion in Dobbs v. Jackson Women’s Health, the decision that overturned Roe, Justice Brett Kavanaugh emphasized that the Constitution is “neither pro-life nor pro-choice.” Antiabortion briefs in the Dobbs case advanced personhood arguments, but not a single justice said a word about them. It is no surprise that Kavanaugh is not ready to contradict himself or that other justices are not ready to declare their intentions about personhood.
But that hardly means that this is the end of the road for personhood. Even if Kavanaugh is invested in his belief that the Constitution is scrupulously neutral, personhood proponents will try to replicate the feat accomplished by the movement that saw Roe overturned: shifting the Overton window of mainstream opinion, stoking a movement of disobedience and opposition in conservative states, and even remaking the Supreme Court itself.
Some antiabortion leaders have already begun this project. A handful of states have passed personhood laws. Georgia’s law, for example, bans abortion and recognizes personhood at six weeks of gestation; similar laws in other states either have not been tested or remain blocked by courts. Americans United for Life, a leading antiabortion organization, is championing an executive order on personhood that would require the federal government to prohibit distribution of abortion pills and enlist the government in an effort to “investigate state or municipal laws or policies that deprive preborn persons of due process of law or the equal protection of the laws.”
Other leading groups may not yet have a bill about personhood written up but define it as central to their agenda. Students for Life, a group with major pull on Capitol Hill, argues that “a human being obtains personhood, inherently, at the moment of creation” — and that “all pro-lifers are for personhood.”
So what’s missing for personhood proponents? Kavanaugh’s concurrence in the Dobbs opinion gives us some clues. In voting to reverse Roe, he emphasized the ongoing work of the antiabortion movement and the fact that “a significant number of states have enacted abortion restrictions that directly conflict with Roe.” These laws convinced him that “tens of millions of Americans,” together with a political party, believed Roe was wrong and wanted to get rid of it. The antiabortion movement would have to build a similar groundswell in conservative states around personhood.
So far, antiabortion lawyers have yet to convince the GOP. Republican leaders in closely contested races, such as Senate contests in Wisconsin and Arizona, have backed away from their previous support for personhood. State lawmakers in red states are seriously considering exceptions to abortion bans — and exceptions would contradict the idea of personhood.
The conservative legal movement also has yet to embrace personhood the way it did the argument that Roe was an activist decision that had fabricated a constitutional right out of whole cloth. At first, the Federalist Society was uneasy embracing arguments against abortion; some of its members were prochoice, and others worried that a connection to the antiabortion movement would be politically damaging, especially in elite circles. Antiabortion lawyers won an ally in Federalist Society hero Robert Bork, who argued that Roe was an unprincipled decision and who worked for years to convince the group to make antiabortion positions part of its repertoire. Today, antiabortion lawyers are just starting to argue that originalism, the idea that judges should interpret the Constitution according to its original public meaning, supports personhood.
What personhood proponents want may be a heavier lift than the reversal of Roe — a national ban on abortion would poll terribly in large swaths of the country. It would alienate some voters who accepted abortion restrictions. But this is the beginning of that battle, not the end. One thing is clear about those opposed to abortion: They are not averse to playing the long game.
Mary Ziegler, a professor of law at the University of California, Davis, is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”