It was a weird flex.
Liberty Counsel, a Christian conservative legal group known for waging religious freedom lawsuits and challenging laws protecting LGBTQ rights and abortion access, sent out a press release praising, of all things, a ruling from Massachusetts’ highest court.
“MA Supreme Judicial Court Affirms Killing Unborn Child Is Murder,” the title of the release blared.
What the court actually did was slap down an effort by a man convicted of fatally stabbing his pregnant girlfriend to get one of his two murder convictions dropped because the knife didn’t actually touch the woman’s womb.
No new law was made here: The court followed previous precedent that the loss of a viable fetus due to violence can be charged as homicide. But that didn’t stop the headlines touting Massachusetts’ recognition that an attack that ends a pregnancy is murder, both in religious publications like the Christian Broadcasting Network and more mainstream outlets like Bloomberg Law.
“It makes perfect sense to charge a person with murder who kills an unborn child. It makes no sense to call this ‘choice’ when the mother does the killing,” Liberty Counsel’s founder and chairman Mat Staver is quoted in the release. His conclusion: “Abortion is homicide because the act of killing the child is the same whether it is done by a violent actor or a doctor in a white lab coat.”
That has become a growing mantra among antiabortion activists since the Supreme Court overturned Roe v. Wade last year.
Their goal is to use court rulings like the SJC decision to paint a picture of a nation full of states, even deep blue ones like Massachusetts, that treat the unborn as people under the law.
The Bay State, of course, does not do that. Not only does the state’s Roe Act protect abortion access up to 24 weeks, in the wake of the Dobbs decision last year new legislation was enacted protecting patients and providers — including those who come from out of state — from lawsuits and criminal liability.
Criminal statutes meant to punish violent offenders should not be conflated with a legal recognition of fetal personhood. But even though they know the difference, antiabortion groups are engaged in a messaging campaign — aimed at the public and courts — based on their disingenuous claim that there is societal consensus that life begins before birth. That’s the first step in the push for their next objective: a nationwide ban on abortion.
They know Congress is unlikely to do it with legislation. So antiabortion groups are planning to use litigation.
“They’re hoping ultimately that it comes from the courts,” said Mary Ziegler, a law professor at the University of California Davis and an expert on abortion law.
These activists are hoping state courts, and ultimately the Supreme Court, embrace the notion of fetal personhood.
“They’re trying to help build that longer term case and lay the groundwork for a personhood decision down the road,” Ziegler said. “Maybe not tomorrow. It took decades [to overturn] Roe v. Wade. We have every reason to believe that people opposed to abortion are happy to play the long game, because they’ve already done it.”
Fetal homicide laws have been enacted in states across the country for the last half century, often in response to horrific domestic attacks on pregnant women. While such violence rightfully spurs outrage, reproductive rights advocates have long warned that these laws, even if passed to ensure abusers of pregnant people are punished, can easily be used to prosecute pregnant people and abortion providers.
It’s really unpalatable to advocate for the repeal of fetal homicide laws in order to protect reproductive rights. But that doesn’t mean a solution is impossible.
“I think there could be an answer in civil law,” said Dana Sussman, acting director of the advocacy group Pregnancy Justice, citing movements to swap out fetal homicide criminal laws with those that allow a pregnant person or estate to sue violent offenders who cause lost pregnancies.
But Sussman acknowledges such a movement won’t be easy.
“The American legal system is not set up to deal with transformative justice or restorative justice,” Sussman said. “Trying to repair that system is basically impossible.”
In the meantime, those pushing fetal personhood will do their best to exploit that system. It’s the new long game, and antiabortion activists have proven their ability to be as patient as they are tenacious.