In 2011, voters in Mississippi were given the opportunity to amend their state constitution to provide all of the constitutional rights that you and I haveor at least are supposed to haveto a fertilized egg.
And Mississippians resoundingly said no. But it wasnt just abortion advocates who opposed the ballot initiative. National Right to Life opposed it, as did Americans United for Life. The U.S. Conference of Catholic Bishops and the states Episcopal and Methodist church leadership also refused to support it.
It was a crushing blow to the so-called personhood movement, which suffered repeated humiliating losses during the 2010s. Voters in North Dakota rebuffed the personhood movements advances, as did voters in Coloradotwice.
The personhood advocates retreated with their tail between their legs. The will just wasnt there.
But its ten years later, and the will of the people doesnt mean much anymore. Conservatives are in the midst of a power grab, and something as minor as the will of the peopleas democracy itselfis not going to stop them from imposing their rules of Christian theocracy and forcing the rest of us to live by them.
And personhood? Well, personhood is Christian evangelicals holy grail.
A Supreme Court ruling in Mississippis favor in Dobbs v. Jackson Womens Health Organization wont end the fight for the anti-abortion movement. It will galvanize it. Disparate wings of the anti-abortion movement that have clashed in the past over the efficacy of pushing for personhood will come together. Republican-controlled states will rush to amend their constitutions to reflect the fetuss new status as a person, while anti-choice advocates push Congress for federal personhood legislation.
Because ending abortion is not enough.
If you thought the fight to protect Roe v. Wade was bad? The fight to ensure that women and pregnant people in this country dont have to share human and constitutional rights with a fertilized egg will be worse.
They want fertilized eggs, embryos, and blastocysts to have full constitutional rights under the 14th Amendmentthe right to due process, the right to equal protection, the right to lifeeven at the expense of the person whose body is sustaining fetal life.
That means anything that interferes with a fertilized egg making its way to the uterus and implantingalong with anything that interferes with that developing pregnancywould be classified as killing a person, and potentially as murder.
Someone suffering from infertility who, as is often the case during in vitro fertilization (IVF), does not implant every fertilized egg could be brought up on charges. A pregnant person who suffers a miscarriage could expect a visit from the cops to determine whether the miscarriage was accidental.
Any contraceptives that prevent, or even potentially prevent, a fertilized eggpardon me, a personfrom implanting into the uterus would be banned.
That this has grave consequences for abortion rights is a gross understatement. If you thought the fight to protect Roe v. Wade was bad? The fight to ensure that women and pregnant people in this country dont have to share human and constitutional rights with a fertilized egg will be worse. Because the end result isnt just forced pregnancy and unsafe abortion care. Its total control over women and other people capable of reproducing.
Thats always been the anti-choice movements goal, which is why they wont stop if the Supreme Court upholds the Mississippi Gestational Age Act, the 15-week abortion ban at issue in Dobbs v. Jackson Womens Health.
Exactly one week after the Supreme Courts decision in Roe v. Wade, the first federal personhood amendmentthe Human Life Amendmentwas introduced by Rep. Larry Hogan Sr. For the next 40 years, personhood amendments would be introduced and would fail. Anti-choice politicians would try to slip personhood language in unrelated legislation. (In 2012, Rand Paul threatened to block a bill to reauthorize funding to the National Flood Insurance Program unless a personhood amendment was attached to it.) Ultimately, those efforts would fail as well.
Meanwhile at the state level, personhood activists within the anti-abortion movement found themselves fighting an uphill battle alone. While they were in sync when it came to ending legal abortion, the movement was split on what tactic to deploy.
Personhood activists insisted that ending legal abortion required declaring that life begins at conception and that fertilized eggs deserved full constitutional protection. The rest of the anti-choice movement preferred a less controversial approachattack abortion around the edges and reduce abortion by restricting access. It would be death by a thousand cuts.
This incremental approach became the dominant strategy. After decades of brutal and violent attacks on abortion providers, accompanied by a pervasive narrative that women who get abortions are baby killers, a dramatic shift occurred in the way that the anti-abortion activists talked about abortion.
The cries about baby killers and murderers abated for a while as anti-choice advocates turned their attention toward crafting an image of caring abolitionists concerned about the harm that abortion caused women. Women werent baby killers. Rather, they were being coerced into abortion by providers who were falsely painted as motivated by profit. (One thing that remained from the tactics of the 1980s: attacking abortion providers and making them unsafe with wild claims about justifiable homicide.)
The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women.
Thats what Clarke Forsythe, senior counsel for Americans United for Life, said in an article published by CBS News in 2009. AULs model anti-choice legislation would go on to be a big force in the avalanche of abortion restrictions that came pouring out of statehouses across the country during the rise of the Tea Party in the Obama administration.
Screaming at women that they were baby killers wasnt working, so anti-abortion activists began to couch anti-abortion activism in woman-protective terms and promoted legislation that would purportedly protect women.
The flood of state abortion restrictions in the early 2010s marked this rhetorical shift and reflected the anti-abortion movements decision to focus on womens health and safety. Anti-abortion advocates keened about women being coerced into abortion, and invented medical conditions they claimed post-abortive women had suffered, including the ludicrous claim that women were being traumatized by the sound of vacuum cleaners after their abortions.
In addition, biased informed consent laws forced doctors to lie to patients about, among other things, an increased risk of breast cancer or an inability to bond with subsequent children, and to read scripts impressing upon the patient that theyre terminating the life of a whole separate unique living human being (as one law in South Dakota required), just to impress upon the hapless pregnant person that abortion is an abrogation of their maternal duties. Unwanted ultrasounds and heartbeat listening sessions were forced upon patients because hapless pregnant women simply needed to see and hear the little dot on the sonogram in order to tap into the well of maternal instinct that evangelicals believe resides inside every woman.
And then there were the regulations aimed at providers. Those were ostensibly about health and safety too. Requirements that clinics spend millions of dollars to retrofit their facilities to act as outpatient hospitalseven clinics that only provide medication abortion. States forced doctors to get admitting privileges at local hospitalseven though abortion is safer than childbirth and, on the rare occasion that a complication does occur, an ambulance will take the patient to a hospital nearest to their home, which, thanks to the legislators who enact these restrictions, may be hundreds of miles away from the clinic.
Womens health and safety. Thats what politicians repeatedly claimed their goal was when it countedin the legislation, in hearings, and in court. But in the media, they crowed about how successful these restrictions were at closing clinics.
The Supreme Court ended the womens health and safety charade in Whole Womans Health v. Hellerstedt, the case challenging Texas HB 2, sweeping legislation that Texas Republicans admitted was intended to close clinics.
In Whole Womans Health, the Court said states could no longer pass laws willy-nilly and claim that they protect the health and safety of pregnant people. The burdens of any restriction would have to be weighed against benefits the restriction conferred. The Court rejected Texas claim that its admitting privileges law was in place to protect women, finding that, in practice, the law hadnt done anything of the kind.
In one of her shorter concurrencesclocking in at two pagesRuth Bader Ginsburg said, When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. Targeted Regulation of Abortion Providers laws like H. B. 2 that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.
Whole Womans Health effectively put a nail in the we have to protect women from abortion strategy, which means the anti-choice movement is coalescing around the we have to protect the fetus strategy. That strategy could take many forms. Anti-choice activists may push for federal personhood legislation. They may push for an amendment to the Constitution establishing personhood. They may take a stab at both simultaneously.
Its certainly on their radar.
During a Newsweek podcast appearance with Rewire News Groups Executive Editor Jessica Mason Pieklo, anti-abortion leader Lila Rose laid the anti-choice movements cards on the table:
Theres no reason that we should treat children at the moment of birth different than children before birth. They are still human beings. Human life startsthe science is clear when human life beginsit begins at the moment of fertilization: sperm, egg fusion. You have a unique, individual human being and they deserve legal protection, just like anybody else. Thats not just a general argument for human rights; its based on our own Constitution. The 14th Amendment says that all people should have equal protection under the law and that no state should deprive anyone of their right to life without due process.
Theyve got momentum, theyve got power, and theyve got a Supreme Court stacked with justices just waiting to back them up.
And this time, theyre not particularly concerned about protecting women. They cant possibly be. Conferring legal rights to eggs turns every miscarriage into a potential criminal investigation. It also raises awkward questions about whose rights matter more when pitted against each otherthe fertilized egg or the person carrying it.
Enshrining fetal personhood into law will prevent millions of people suffering from infertility from being able to have children. And it will prevent millions of people who rely on certain forms of contraception from using them.
And while this may not be the most critical issue, it does raise the question: Can a pregnant person drive in the HOV lane?
The point is, fetal personhood will lead to chaos. And its that chaos that led to the myriad defeats the personhood movement suffered in the early 2010s. But its a new decade with a new cultural zeitgeist. The protect women drumbeat is silent, and increasingly the claim to care about womens well-being has given way to the rhetoric of the early days of the anti-choice movement: Abortion is murder and anyone participating in it deserves to be punished. They dont care anymore if a pregnancy is a result of rape or incest. Gone are the concerns about the safety and well-being of women. Some Republican lawmakers have outright called for people who get abortions to be put to death.
Now its fetus ber alles. Its the fetus that deserves a chance at life. The pregnant person? They already screwed up by getting pregnant. Better luck next time.
The fight to keep personhood at bay will be tough, but its not unwinnable. Advocates will be fighting a united anti-choice movement with one goal in mind, to be sure. But fetal personhood has severe consequences outside of the abortion context; the anti-choice movement may not be able to convince enough people that fetal personhood even makes sense.
But that doesnt mean theyre not going to try.
The anti-choice movement may have been splintered in its approach to gutting Roe v. Wade in the lead-up to Dobbs v. Jackson Womens Health, but after that decision comes down, the movements approach to ending abortion entirelyor trying to anywaywill be unified. And that should make every abortion rights advocate nervous.
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