Does a Fetus Have Constitutional Rights?

In the first two years after the Supreme Court eliminated the constitutional right to abortion, the number of abortions performed annually in the United States went up. On the face of it, this might seem perplexing. After all, many states seized the opportunity presented by the Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization to enact daunting new restrictions on abortion: twelve adopted near-total bans, and four more imposed gestational limits of six weeks, a point at which many people may not yet realize they are pregnant. Yet, suddenly, the U.S. was seeing an increase in abortions—from about nine hundred and thirty thousand in 2020 to more than a million in 2023. The best explanation for this apparent paradox was that providers and activists in states where abortion was still accessible devoted considerable energy and resources into making it more so. This was especially true for medication abortions provided via telehealth. In December, 2021, the F.D.A. had lifted its requirement that mifepristone be prescribed in person; the number of virtual clinics, which assess a patient’s eligibility online or by phone, and mail out the medications, proliferated.

The post-Dobbs restrictions plainly had an effect. Some states reported that they had reduced the number of abortions to virtually zero, and they made already hard circumstances harder for patients who have to travel from, say, Texas or Kentucky to North Carolina or Illinois, in many cases pushing abortions later into desperately unwanted pregnancies. Draconian new laws compounded the risks to patients carrying pregnancies that threatened their lives or health. And the over-all number of abortions in the U.S. may eventually decrease as a result of Dobbs. (The latest annual statistics available are from 2023.) Still, it seems safe to say that an immediate rise in the number of abortions was not what activists were looking for when they campaigned to overturn Roe v. Wade.

Given that abortion has not even come close to going away, it makes sense that the anti-abortion movement hasn’t, either. Dobbs was the first-round bell in a much bigger fight, for which the movement is in some ways more pumped up than ever. Donald Trump’s return to the White House is certainly invigorating. It’s true that, in his most recent campaign, Trump was canny on the subject of abortion, reminding his evangelical supporters that it was his Supreme Court appointments who had given them Dobbs, while stressing, for the benefit of the majority of Americans who disapprove of the ruling, that abortion policy was now up to the states. Amid the chaotic pileup of executive orders and agency demolitions in the first months of Trump 2.0, abortion politics has not loomed especially large. Trump has not yet, for instance, instructed the Department of Justice, per Project 2025, to ban the mailing of abortion pills by enforcing the 1873 Comstock Act. Still, he hasn’t exactly neglected the issue: among other things, he pardoned twenty-three people who had been arrested for blockading abortion clinics, while directing the Department of Justice to minimize the enforcement of a 1994 law prohibiting violent or intimidating clinic protests. And, of course, these are early days.

But overturning Roe was never the ultimate goal of the anti-abortion movement, as Mary Ziegler, a law professor at the University of California at Davis, argues in her cogent book “Personhood: The New Civil War Over Reproduction.” Rather, she observes, it has “always been a fetal-personhood movement,” premised on the idea that the fetus is a “separate, unique human individual from the moment of fertilization,” and that because of this status “the Constitution gives (or at least should give) that individual rights.” Movement leaders have disagreed on how best to enforce fetal personhood—through a constitutional amendment or a federal statute that would ban abortion nationwide, for instance, or through the courts. They have differed, too, on how forcefully to push a proposition with some deeply unpopular possible ramifications: the limiting or outlawing of I.V.F. and some forms of contraception, say, or homicide prosecutions for women who choose to terminate their pregnancies. Many in the movement have opted for more incremental, and less punitive, strategies—suggesting, for instance, that women are innocent victims of abortion providers, and scarcely understand what it means to terminate a pregnancy. This was the reasoning behind so-called informed-consent laws, which compel people seeking abortions to undergo ultrasounds, so they might view the fetus, or to be presented with (often misleading) information about the physical and psychological risks of the procedure.

Yet the goal of recognizing fetal personhood, Ziegler writes, has, for more than half a century, been a “singular point of agreement in a fractious movement.” Ziegler uses the term “fetal personhood,” but “embryonic personhood” might be more accurate: for many in the anti-abortion movement, a fertilized egg, and certainly a cluster of four or eight or sixteen cells, is already a human being, and therefore, within U.S. jurisdiction, is entitled to equal protection under the Fourteenth Amendment of the Constitution. (Strange in this context to contemplate how many of those rights-bearing fertilized eggs—as many as forty per cent—fail, through natural causes, even to implant in the uterine lining.)

It has long been a problem for both sides of the abortion debate that the Constitution does not mention the subject. Justice Harry Blackmun, in his majority opinion in Roe, attempted to solve that conundrum by expounding an unenumerated right implied by the Constitution, specifically the due-process clause of the Fourteenth Amendment—a right to privacy, protecting people’s decision-making in intimate matters such as reproduction and sexuality. Some people, even in the pro-choice camp, were not particularly taken by this line of reasoning; Ruth Bader Ginsburg, for one, made it clear that she would have preferred Roe to be grounded in an argument about gender equality under the law. But the Constitution’s silence on abortion was trickier for jurists inclined to rule against reproductive rights—they were more likely to be originalists, and therefore to rely on justification in history and tradition, and in the specific text of the Constitution.

Justice Samuel Alito, in his majority opinion in Dobbs, had to concede that, at the founding of the United States, abortion was allowed everywhere in the new country until the stage of quickening, when a pregnant person can detect fetal movement (usually at about sixteen to eighteen weeks). But Alito asserted that “the most important historical fact” was that at the time of the Fourteenth Amendment—which, in 1868, granted due process and equal protection of the law to all persons born or naturalized in the United States—many states had enacted laws that made abortion a crime even before quickening. The very existence of such laws, he reasoned, meant that a right to abortion could not be justified with reference to the Constitution.

Advocates of fetal personhood, meanwhile, argued that, far from protecting the right to abortion, the Fourteenth Amendment protected the right to life of the fetus, from the very moment of conception. In National Review in June of 2023, a group of anti-abortion leaders and legal scholars, including Kristan Hawkins, the president of Students for Life of America, and Robert P. George, a legal scholar at Princeton, published what became known as the “new North Star letter,” setting a post-Dobbs goal of recognizing fetal personhood. “The 14th amendment expressly forbids the states from denying to ‘any person within [their] jurisdictions the equal protection of the laws,’ ” they wrote. “No exceptions to the equal protection principle are stated, implied, or even contemplated. The principle, on its very face, extends to everyone without distinction of race, ethnicity, sex, age, size, location, stage of development, or condition of dependency.” This meant that fetal-homicide and child-endangerment laws for the “preborn” must be enforced; that “children in the womb” must be “afforded due process and legal representation,” along with child tax credits; and that frozen embryos could not be “discarded and destroyed.” In Roe, the Court had briefly considered whether the word “person” in the Fourteenth Amendment (and elsewhere in the Constitution) applied to fetuses, but decided that it almost always applied “post-natally.” Surely, this would be the most commonsense reading, not least because the amendment’s purpose was to extend civil and legal rights to formerly enslaved people in the aftermath of the Civil War.

There was a drive to restrict abortion in late-nineteenth-century America, but, as Ziegler points out, it did not have much to do with the Constitution or the rights of the fertilized human egg. Horatio Storer, a doctor allied with the newly formed American Medical Association, saw the regulation of abortion as a way to burnish the professional reputations of his fellow-doctors, distinguishing them from midwives and other irregular practitioners who offered medicaments and procedures to end unwanted pregnancies. (“Restoring the menses” was the euphemism.) Storer also fretted that abortion was “infinitely more frequent among Protestant women than among Catholic,” and that the new Western territories would be populated by the wrong sort. And he considered the existence of marriages in which “conception or the birth of children is intentionally prevented” to be shameful advertisements of lust. Lust, along with the urgent need to police it, was the overriding preoccupation of the anti-vice crusader Anthony Comstock when he took up the campaign against abortion, in the eighteen-sixties. In these arguments, the fetus was a recessive, even shadowy figure.

It wasn’t until the nineteen-sixties, and the birth of the modern anti-abortion movement, that fetal personhood became a central, animating doctrine for crusaders against legalization. Abortion itself had never gone away. Starting in the nineteen-forties, a woman with the means and the determination to do so could have her case pondered by a committee of doctors with the authority to grant her a so-called therapeutic abortion in a hospital. (The committee might conclude, for example, that her reproductive organs would be damaged by childbirth or that she would be suicidal if forced to carry the pregnancy to term.) If her circumstances were rougher—if she were younger, poorer, or unmarried, for instance—she could risk going to an illegal practitioner who might or might not treat her with anything like the appropriate care. By the early sixties, Ziegler observes, nearly half the maternal deaths in New York City were the result of botched abortion. “Abortion opponents saw figures like these as further reason to suppress the procedure,” she writes, “but they struck other doctors and advocates quite differently: if the procedure could be performed safely”—and there was by then plenty of evidence that it could be—“every death due to illegal abortions was a scandal and a tragedy.” The campaign to legalize abortion was initially led by doctors who saw a chance to save lives, but they were soon joined by birth-control advocates concerned about population growth and later by feminists and sexual revolutionaries. And, as these advocates began to rack up successes, measured in new state laws and changes in public opinion, a countermovement took shape. In this movement—it would eventually call itself “pro-life”—Catholic theologians at first dominated, and the unborn took center stage.

Eugene Quay, the man Ziegler calls “the most prominent antiabortion advocate of the time,” was a well-known figure in Catholic and legal circles in Chicago. He took an extreme stance on abortion but was at pains to connect it to American morality rather than to Catholic doctrine, an association that he felt might limit its appeal. “If there could be any authority to destroy an innocent life for social considerations,” he wrote in the early nineteen-sixties, “it would still be in the interests of society to sacrifice such a mother rather than the child who might otherwise prove to be normal and decent.” In 1962, another Chicagoan, the theologian Father Francis Filas, told a newspaper reporter that “every unborn child must be regarded as a human person with all the rights of a human person from the moment of conception.”

A few years later, Robert Byrn, a law professor at Fordham University, took the argument in an au-courant direction, framing abortion in terms of discrimination against the unborn. His emphasis on due process for the unborn and his flair for the dramatic gesture—he once petitioned a court to be named the legal guardian of all the fetuses scheduled for abortion in New York City—helped set the tone for the anti-abortion movement of the future: socially conservative, and combative. As the movement grew, folding in more Protestant evangelicals—and turning, at the grassroots, to clinic blockades and, at the margins, to violence against abortion providers—it retained its focus on the rights of the fetus.

Hawkins, the thirty-nine-year-old leader of the increasingly high-profile Students for Life of America, embodies the totalizing ambitions of the post-Dobbs anti-abortion movement: its rightward shift and its revived North Star. She talks a lot about fetal personhood and opposes certain contraceptives, including the Pill. (The Pill mainly works by preventing ovulation, but it can also make the uterine lining less hospitable for a fertilized egg.) Her aims for the movement are one more piece of evidence giving the lie to the old argument—trotted out by Alito and Brett Kavanaugh for Dobbs—that overturning Roe would somehow cool the abortion debate by returning the matter to the states. In a 2023 profile on the BBC website, Hawkins described a new momentum: “Like, O.K., all of America is watching, push the gas pedal down on everything right now. More, more, more, more, more.” (In a detail that stuck with me from that profile, Hawkins, whose husband homeschools their four children, and who has been an anti-abortion activist since her teens, said that she didn’t have friends “in the traditional sense,” explaining, “Like, I don’t have girlfriends I go for brunch with. . . . What would I talk about besides ending abortion?”) Ziegler writes, “For half a century, she and her allies have seen themselves as fighting an era-defining human rights battle. It might take another generation or more to secure judicial recognition of fetal personhood, but that does not trouble the activists who had successfully destroyed Roe v. Wade. They have played the long game before.”

Ziegler makes the point more than once that the belief in fetal personhood is, for its proponents, sincere and fundamental, and surely it is for many in the movement. But it is striking to read how malleable this particular argument has been, in some ways—how strategically responsive to the times. In the early sixties, when activists worried that faith-based arguments might doom them politically, and when the courts had begun recognizing the civil rights of Black Americans, Byrn and others made the argument that, as Ziegler puts it, “classifying someone on the basis of residence in the womb was analogous to racial discrimination.” In the nineteen-eighties, during the tough-on-crime Reagan era, the fetus reëmerged in some anti-abortion rhetoric as the ultimate crime victim. Toward the end of the decade, as the movement grew closer to conservative legal circles, including the Federalist Society, it drew more on constitutional-originalist arguments. And when the Supreme Court recognized corporations as persons, or uncannily personlike entities, with respect to free-speech rights exercised through campaign donations and religious-conscience exemptions, people like the influential conservative lawyer James Bopp “hoped that justices willing at times to treat businesses as persons might be willing to do the same for the unborn child,” Ziegler writes. Her “Personhood” is a field guide to the seemingly boundless tactical resourcefulness of the anti-abortion movement.

Ziegler is one of the leading historians of reproductive politics, a generous and frequent commentator in the press, and the author of several previous books that deal to a greater or lesser extent with the anti-abortion movement. The focus of this book is important, but perhaps leads her to overestimate the power of the fetal-personhood argument in a society where some of that doctrine’s logical conclusions would be profoundly objectionable to many, many Americans. I.V.F. offers a prime example. In February of 2024, the Alabama Supreme Court ruled that embryos created through in-vitro fertilization were to be considered children. Fearing legal action, some fertility clinics in the state promptly paused their operations. In March, the G.O.P.-led Alabama state legislature rushed to pass a bill granting civil and criminal immunity to I.V.F. providers and receivers. (Forty-two per cent of American adults say that they have availed themselves of fertility treatment or personally know someone who has, according to the Pew Research Center.) Trump was nervous enough about the fallout that he called himself, weirdly, “the father of I.V.F.” on the campaign trail, and in February he signed an executive order promising to make fertility treatment more accessible.

One snag Ziegler does not deal with here is birthright citizenship—presumably because the book was completed before Trump signed an executive order revoking it. In the Trump world view, a baby born in the United States can be a citizen only if one or both of its parents are U.S. citizens or legal permanent residents. (The executive order contradicts how citizenship is defined in the Constitution, and several federal courts have blocked enforcement of it.) But for fetal-personhood advocates an embryo is already under U.S. jurisdiction and specifically entitled to the protections of its Constitution by dint of its location in a womb on U.S. soil. For those occupying the overlapping category of Trump supporter and fetal-personhood booster, this would seem to present, at the least, a rhetorical problem.

Legislators in some states have been emboldened to push fetal-personhood bills, politically viable or not, marking a split from the mainstream anti-abortion movement’s focus on punishing providers of abortion or, lately, people who assist others in obtaining one, rather than punishing the abortion patients themselves. (For a long time, movement leaders urged a “Love the sinner, hate the sin” approach.) As of March, 2025, bills redefining abortion as homicide had been introduced in at least ten states. These do not always get very far. In Iowa, for instance, G.O.P. legislators blocked a bill that would have made it a felony to “cause the death” of an “unborn person,” worried, apparently, that it would generate trouble for I.V.F. But the bills have changed the rhetorical landscape.