After half a century of unremitting assaults—years spent defunding abortion care, restricting abortion access, and terrorizing women and their doctors—the religious right has achieved its first major judicial breakthrough: the overturning of Roe v. Wade. Among a volley of first-term decisions by the ultraconservative Supreme Court supermajority installed by President Donald Trump, Dobbs v. Jackson Women’s Health Organization must be seen as part of an unfolding judicial counterrevolution.
The electoral pushback against the decision has been impressive, and no doubt stronger than Republicans had anticipated. In ballot initiatives in Kansas, Kentucky, California, Michigan, and Vermont, voters have either rejected proposed abortion bans or reaffirmed existing protections. Yet the Dobbs decision is unlikely to be the Supreme Court’s last word on the matter.
For decades, religious conservatives have wanted to overturn Roe and return abortion laws to state legislatures. But they have never seen this as the be-all and end-all of their struggle. For the right-to-life movement that emerged in the 1970s, the reversion of authority to states is a stepping stone on the road to a higher goal: a federal prohibition on abortion that would overrule the ability of any state to legalize the practice. The recognition of fetal personhood is a key plank in this agenda.
In the years leading up to the Roe decision in 1973, as legal historian Mary Ziegler recounts in Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, anti-abortion activists called on state and federal courts to recognize the civil rights of the unborn. They appealed to the Declaration of Independence, with its affirmation of an unalienable right to life, and to the Fourteenth Amendment (the Reconstruction-era amendment that reaffirmed and clarified the rights enumerated in the Declaration) to argue that the unborn deserved equal protection and due process like any other minority. In several instances, they cited as precedent the 1954 Brown v. Board of Education decision outlawing segregation, hoping to convince the courts that fetuses, like African Americans under Jim Crow, were natural persons unjustly deprived of their full rights to life.
Their efforts were unceremoniously rebuffed by Justice Harry A. Blackmun, author of the majority opinion in Roe, who argued that fetal personhood was nowhere to be found in the Constitution and that, in any case, the Court had no authority to rule on a matter that was unresolved among religious scholars and biologists. Crucially, however, Blackmun acknowledged that if the concept of “person” could somehow be construed to apply to the unborn, then no one could legitimately deny due process and equal protection rights to fetuses—and the case for abortion rights would “collapse.”
In the wake of Roe, anti-abortion activists remained hopeful they could work through Congress and the states to secure a constitutional amendment that would establish the personhood of the fetus once and for all. Their hopes faded in 1983, when the most promising of such proposals died in Congress. At this point, they resorted to less direct ways of inserting the concept of fetal personhood into law. Beginning in the mid-1980s and accelerating after the Planned Parenthood v. Casey decision of 1992, anti-abortion activists fought for fetal homicide laws, late-term abortion bans, fetal pain legislation, and state edicts compelling women to view ultrasound images of fetuses before abortion.
In adopting these more incremental measures, religious conservatives were conceding tactical defeat. Yet they never lost sight of the strategic endgame. Such legal changes were designed to turn the idea of fetal personhood into common sense; an accumulation of minor laws could be invoked as precedent at the right time. With a 6–3 conservative supermajority and a Republican Party moved far to the right, that time has clearly arrived. Anti-abortion activists are now returning to their original goal: “the recognition of fetal personhood and the criminalization of abortion,” Ziegler writes, in all states.
In preparing the ground for this challenge, anti-abortion activists have revived the race-based arguments that they first tried out in the 1970s. Feminist legal scholars Melissa Murray and Jeannie Suk Gersen have pointed to a recent spate of “anti-eugenic” state laws as a likely prompt to future Supreme Court assaults on abortion and a springboard for the recognition of fetal personhood.
A number of states have passed laws banning abortions that are motivated by a presumed intent to discriminate against the fetus on the grounds of race, sex, or disability. In 2016, the Indiana state legislature passed HEA 1337, a particularly draconian version of these “trait selection anti-discrimination laws.” The law was framed as a belated response to Indiana’s early-twentieth-century history of state-enforced eugenics. Just nine years prior, the legislature had issued an official apology for its “role in the eugenics movement in this country and the injustices done under eugenic laws.” Recognizing that the state’s eugenic laws had “targeted the most vulnerable among us, including the poor and racial minorities,” the Indiana General Assembly “urge[d] the citizens of Indiana to become familiar with the history of the eugenics movement” and “repudiate the many laws passed in the name of eugenics and reject any such laws in the future.” In signing HEA 1337 into law, then Governor Mike Pence self-consciously reprised this language, affirming that “a society can be judged by how it deals with its most vulnerable—the aged, the infirm, the disabled and the unborn.”