It should be obvious to anyone familiar with the anti-abortion movement in this country that deterrent or even prohibitive laws against people who might want to terminate an unwanted pregnancy were never their ultimate goal. The ultimate goal has always been punishment, and their justification is fairly simple: Anyone who terminates a pregnancy—for whatever reason—is committing a mortal sin, and is thus deserving of the harshest retribution. As so-called white “evangelical Christians” or “conservative Catholics,” or whatever it is they happen to call themselves, abortion opponents see it as their God-appointed duty to mete out that punishment.
As reported in July by Elizabeth Dias, writing for The New York Times:
About one in three American adults believe that, if abortion is illegal, women who have the procedure should serve jail time or pay a fine or do community service, according to a Pew Research Center study conducted in March. Men, white evangelicals and Republicans are among the most likely to believe that a woman should be punished, the study found.
They reflect an undercurrent of the anti-abortion movement that Donald J. Trump elevated in 2016, when he said that women who receive abortions should receive “some form of punishment” if the procedure were banned in the United States, before bipartisan outrage pushed him to recant.
The fact that so many of these forced-birthers—Donald Trump included—appear to take actual pleasure in the suffering they hope to inflict on others also helps to explain why they won’t stop with simple deterrence.
In an Aug. 31 opinion piece for The New York Times, author and law professor Mary Ziegler spells out the emerging strategy of the forced-birth proponents in this country: to declare the fetus a legal “person,” thus setting the stage for arrest and incarceration of anyone who obtains, tries to obtain, or assists someone in obtaining, a termination of their pregnancy. Once the fetus has “rights” as a full human being (their thinking goes), then any action taken “against” a fetus is tantamount to violation of its rights—murder, in effect—and should be punishable as such.
As Ziegler reports:
For the anti-abortion movement, the emerging plan is an all-out fight for fetal personhood. In many ways this is no surprise — since the 1960s, the movement’s ultimate goal has been to secure legal protections for fetuses and embryos, despite the harm that could be done to the health and livelihoods of pregnant women. The recognition of fetal personhood nationwide could mean a total ban on abortion for everyone in the United States, and if an increasingly sophisticated minority of anti-abortion extremists have their way, many more women would face criminal charges for ending their pregnancies.
As Ziegler explains, the concept of fetal "personhood" dates back to before Roe. Because it was such an extreme idea, it never gained much traction in the 1970s or ‘80s; the anti-choice lobby shied away from its unmistakably punitive implications. Most importantly, it was thought to be a bridge too far to be upheld by any Supreme Court majority during that timeframe, no matter how conservative that court might be. The existence of the Roe decision, confirming the right to abortion as constitutionally protected, served to relegate any idea that an unborn fetus' “rights” might supersede those of the actual living breathing person carrying it to the most extreme fringes of the movement. Significantly, as Ziegler notes, that was a purely pragmatic decision by forced-birth proponents, and did not reflect any actual concern about the well-being or rights of the pregnant person.
But now that Roe has been overruled by the most rabid and heedlessly ideological Supreme Court in history, the push for fetal "personhood" has leapt to the forefront of the anti-choice wish list.
Since the Dobbs v. Jackson Women’s Health Organization decision came down in late June, a Georgia law has gone into effect defining a “natural person” as “any human being including an unborn child” and giving a $3,000 tax break for pregnancies after about six weeks. An Arizona statute that defines fetal rights from conception is being fought in court. Leading anti-abortion groups are developing plans for a federal abortion ban that could include recognition of fetal personhood, and prominent anti-abortion commentators have said that it is “not a far leap from Dobbs to constitutional personhood.” So-called abortion abolitionists, who favor punishing pregnant patients for abortion, argue that full recognition of personhood requires “the same legal penalty as murdering or being an accomplice to the murder of a born human being.”
Now that Roe is gone, there is no longer any discernible daylight between radically “abolitionist” anti-choice organizations and their supposedly more “moderate” colleagues. Ziegler cites an abomination called the “Lincoln Proposal” being advocated by Americans United for Life, one of the purportedly more “mainstream” groups, which posits an enforcement mechanism (via executive order) for the Justice Department to “interpret the 14th Amendment’s safeguards of due process and equal protection to extend to all human beings, born and not yet born.”
Such an order, presumably to be decreed by a reelected Donald Trump (or by any future Republican president), would literally require the Justice Department to hunt down and prosecute people who have terminated their pregnancies, as well as those who assisted them. Under the group’s plan, fetuses would also be counted in the national census as persons.
Whether such a scheme could preempt states that still permit abortion is a legal question that Ziegler does not fully address. As she emphasizes, however, what is different today that makes these proposals realistic is a reliably fanatical, fervent anti-choice majority on the Supreme Court. Unlike elected Republicans, who might balk for political reasons at imposing such draconian laws upon their own constituents, these six people, not answerable to the public, have already made their preferences clear. So from a practical standpoint, the passage of these (often vaguely worded) “personhood” measures will create a chilling effect even in states which still allow the procedure. As Ziegler writes: “In this climate of uncertainty, doctors, pharmacists and other health care providers aware of the harsh punishments attached to abortion laws will have every reason to turn patients away.”
Other forced birth groups are pushing Republicans in Congress to enact legislation that offers the fetus the same rights afforded to children, such as the right to financial support. Their ultimate goal is to nudge elected Republicans towards passing legislation banning all abortions at the federal level, and forever enshrining the rights of fetuses as constitutionally protected.
Ziegler was consulted for a previous Times story:
“Personhood has always been the ultimate ambition of the anti-abortion movement,” said Mary Ziegler, a law professor and historian of abortion at the University of California, Davis. “The movement very much wants a declaration that abortion is a human rights and constitutional rights violation. Not just that it’s a crime; that it’s unconstitutional. From a symbolic standpoint, that’s a really big deal to a lot of people in the movement.”
What is clear is that anti-choice states, such as the nearly half that have effectively banned nearly all abortions outright since Roe was overruled, will immediately—if these “personhood” proposals are enacted—have the legal wherewithal to arrest and incarcerate anyone within their geographic borders who terminates a pregnancy, or assists them in that effort.
As noted above, in the past, forced-birth proponents have voiced tepid opposition to these efforts to criminalize people who terminate their pregnancies, preferring the less politically combustible avenues such as criminalizing doctors and clinics that perform the procedure. But they are no longer dominating the debate.
The most comprehensive studies that tally the number of legal abortions that occur yearly in this country currently put that figure at close to one million, and the ability to cross state lines to obtain the procedure and ready availability of abortifacients such as mifepristone should ensure that abortions are obtainable well into the future, despite Roe’s demise.
But the fanaticism of these forced-birth zealots simply will not allow that situation to continue, if they can do anything to stop it. In their minds, controlling the bodies of others they consider “sinful” is an absolute imperative, and criminalization through such “fetal personhood” laws is simply the next logical step.
Yet these zealots cannot do it alone, or even with their fellow zealots on the Supreme Court. They need elected Republicans who are willing and able to assist them. The Republican Party has collectively determined to side with these religious extremists, which is the only reason why the right to reproductive choice is under such dire threat today. For anyone in this country who faces the possibility of an unwanted pregnancy—either for themselves or for someone they care about—a vote for Republicans at any level of government is a vote to take away that right, pure and simple.
If there was ever a single-issue moment for voters, this is it.
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