'Personhood' argues fetal rights are the next frontier of the anti-abortion movement
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Hey, it's NPR's Book of the Day. I'm Andrew Limbaugh. Mary Ziegler is a professor at UC Davis who thinks big picture about the anti-abortion movement. And while that movement is a big tent, one of the loudest voices is arguing for fetal personhood. Ziegler's new book is a history of that argument. It's titled Personhood, the New Civil War over Reproduction. And it's a book that's been published in the U.S.

And she's not being hyperbolic when she uses that term, civil war, to describe this fight. She's being pretty literal. Ziegler explains why to here now's Tiziana Deering after the break.

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When the Supreme Court overturned Roe v. Wade in 2022, that was only the beginning for some anti-abortion activists.

For them, a new book argues, removing the constitutional right to abortion isn't the ultimate goal. Fetal personhood is. That's the idea that fetuses and embryos have the rights of people under the Constitution. And in order to understand where the anti-abortion movement goes now, writes Mary Ziegler, we need to understand the history of the fetal personhood movement. Ziegler's a law professor at UC Davis and one of the leading historians of the abortion debate in America. The new book, Personhood,

The New Civil War Over Reproduction. Mary Ziegler, welcome. Thanks for having me. So you note there are many factions in the anti-abortion movement, but that those seeking fetal personhood are central. It's a movement that began in the 60s. Can you explain its origins and how it became arguably a, or I don't know, maybe even the mainstream tenet in the anti-abortion movement now?

Yeah, absolutely. So the idea of fetal personhood began as a strategic necessity. So this was at a time when the United States was beginning to reform its criminal abortion laws for the first time really in almost a century. And old arguments against abortion were no longer working, like the idea that abortion would lead to promiscuous sex or undermine Christian morals.

So abortion opponents who were mostly Catholic at the time, that's changed since, argued that it was simply unconstitutional to change or liberalize abortion laws because a fetus or unborn child had constitutional rights. But then that argument took on a life of its own. And I would argue now that there's virtually no disagreement within the anti-abortion movement about fetal personhood, even though there's deep disagreement.

divides about what fetal personhood means and how you would enforce it in law. So is there any part of that definition of what fetal personhood means that's sort of common enough or central enough that you could give us that definition here? Absolutely. So people may be familiar with the idea of personhood in other contexts. It comes up in philosophy and bioethics and various faith communities. But

But in U.S. politics, really what we're talking about is the idea, one, that there's a separate, unique human being at the moment an egg is fertilized, and two, the claim that because of that, that person has constitutional rights. And today, that argument would also carry through to the idea that those rights limit what voters could do to protect abortion or even in vitro fertilization.

So one of the things that was fascinating, Mary, as I read your book, was this kind of arc of, I don't know, attachment to other major legal movements that the anti-abortion movement had in the 20th century. From anti-slavery, civil rights, anti-tobacco, marriage equality. Can you explain that arc for us?

Absolutely, yeah. The anti-abortion movement has always seen what it's doing as a fight for equality in America. And it's always reasoned about equality in terms of other fights against discrimination in the United States, starting with the fight for civil rights for people of color in the 1960s, through struggles over the rights of children born outside of marriage, to the victims' rights movement in the 1980s, the women's rights movement of the 1970s,

So I think it's right to see the fight for fetal personhood as a window into how conservatives are thinking of potentially reimagining constitutional rights and constitutional equality well outside the context of abortion. At this moment, sort of in the conversation, Mary,

It really strikes me that you have called this book, Personhood, the new civil war over reproduction. That's a pretty conscious choice, this Civil War comparison. And it's one, I think, that echoes how personhood proponents themselves have thought about this. After Roe v. Wade was overturned, many leading anti-abortion groups signed on to a document they called the New North Star Strategy, which lay fetal personhood out as

as the kind of next big goal for abortion opponents in America. And that document explicitly said, just as before the Civil War, we couldn't live in a nation that was half states that permitted slavery and half states that did not. Abortion opponents are saying we cannot live in America that has half of the states that don't allow abortion and half that do.

So they see this Civil War analogy as much as I do. So this idea that we heard really quite a bit before the Dobbs decision overturning Roe versus Wade, but also since then, that the thrust of the movement was to return regulation of abortion to the states, that doesn't sound like that's the endgame in the framing you just gave me, Mary.

Absolutely. The anti-abortion movement, really no one was happy with the Dobbs decision overturning Roe v. Wade, if you dig deep enough. Abortion opponents were not— Wait a minute, nobody was happy with it? Well, the abortion opponents were happy in the sense of it was a step in the right direction, but they were not happy in the sense of we won and now the fight is over. Because, of course, as we've seen, abortions have not declined, so allowing states to ban abortion doesn't mean bans will be effective. But

But more fundamentally, I think abortion opponents see their cause as securing fetal rights, not allowing states to do their own thing, which in theory is where we are now. And I will note that in the year after Roe v. Wade was overturned, abortions in America, actually the number went up, to your point. So I want to look now, Mary Ziegler, at what fetal personhood means in the law. This is part of what you explore. And you bring us the Alabama Supreme Court case,

where they actually upheld the personhood of IVF embryos and disrupted access to IVF. Now, reaction across the political spectrum was fairly swift. Alabama itself ultimately passed a law shielding IVF providers from criminal and civil liability. But what is the argument in fetal personhood against IVF, even contraception, like what we heard from the Alabama Supreme Court?

Well, if you believe that rights begin the moment an egg is fertilized, and if you believe this is a critical step, that the way you enforce rights is by punishing people who wrong an embryo or fetus or unborn child, it's easy to see why you might have a problem with IVF.

So IVF, interestingly, has been in the crosshairs for some time. But now that fetal personhood is something that theoretically could be recognized by the U.S. Supreme Court or by a state legislature or by a state Supreme Court, we're seeing abortion opponents come out much more vocally in condemning it than they have in years past, even though there have been concerns about IVF raised in the anti-abortion movement prior to last year.

Contraception is a more complicated question because abortion opponents are not necessarily arguing that contraception violates fetal rights in and of itself. They're arguing rather that we've misunderstood what contraception is. So we've already seen states trying to redefine the meaning of abortion since Roe v. Wade was overturned. And one of the ways that's been pursued by groups like Students for Life is to argue that drugs and devices we commonly think of

as contraceptives, like IUDs and emergency contraceptives in particular, but potentially even the morning-after pill, in fact are abortifacients, and that protecting fetal rights involves probably regulating or criminalizing those drugs too.

You talk about a direct line, Mary, between establishing fetal personhood and criminalizing abortion, including for people who have them. Talk about that link and whether there's a way to support the rights of a fetus should we get to the point of recognizing fetal personhood broadly in the law and not criminalizing it for people who have abortions.

I think there are ways you could make the argument that recognizing fetal rights doesn't require the punishment of people who have abortions. I think it's possible to imagine a world where we recognize fetal rights and don't punish anyone at all. Why, if we're recognizing fetal rights, does that not look more like

giving more protection to pregnant women and not punishing everyone on the back end if a pregnancy ends or if an embryo is destroyed. So with that sort of sitting there, Mary, what do you see as the next phase of the anti-abortion movement in America post-Roe?

Well, the great irony, I think, is that the more the anti-abortion movement commits to this vision of fetal personhood, the more it will depend on the very federal courts that said we're wrongfully taking the issue away from the American people in Roe. Abortion opponents, I think, understand that voters are not likely to embrace a very criminal vision of fetal personhood, given that they already didn't want Roe to be overturned.

So they've directed their focus to the five justices on the Supreme Court, understanding that Donald Trump may have a chance to make the court more conservative. So I think that's really where the movement goes next. And whether we have more steps in this direction will depend in part on how responsive courts are to what voters think and whether, in fact, voters are the ones able to decide these questions at all.

Mary Ziegler is a legal historian and author of the new book, Personhood, The New Civil War Over Reproduction. Mary, thank you. Thanks for having me.

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