What’s Next After the Supreme Court Reverses ‘Roe’? Fertilized Eggs as People

Ending abortion won't be enough for the anti-abortion movement. They'll want fertilized eggs, embryos, and blastocysts to have full constitutional rights.

Photo of pro-choice and anti-abortion activists during a demonstration outside of the Supreme Court
Conservatives are in the midst of a power grab, and something as minor as the will of the people—as democracy itself—is not going to stop them from imposing their rules of Christian theocracy and forcing the rest of us to live by them. Kevin Dietsch/Getty Images

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 have—or at least are supposed to have—to a fertilized egg.

And Mississippians resoundingly said no. But it wasn’t 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 state’s 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 movement’s advances, as did voters in Colorado—twice.

The personhood advocates retreated with their tail between their legs. The will just wasn’t there.

But it’s ten years later, and the will of the people doesn’t mean much anymore. Conservatives are in the midst of a power grab, and something as minor as the will of the people—as democracy itself—is 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 Mississippi’s favor in Dobbs v. Jackson Women’s Health Organization won’t 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 fetus’s 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 don’t 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 Amendment—the right to due process, the right to equal protection, the right to life—even 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 implanting—along with anything that interferes with that developing pregnancy—would 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 egg—pardon me, a person—from 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 don’t have to share human and constitutional rights with a fertilized egg will be worse. Because the end result isn’t just forced pregnancy and unsafe abortion care. It’s total control over women and other people capable of reproducing.

That’s always been the anti-choice movement’s goal, which is why they won’t stop if the Supreme Court upholds the Mississippi Gestational Age Act, the 15-week abortion ban at issue in Dobbs v. Jackson Women’s Health.

The fight for personhood begins

Exactly one week after the Supreme Court’s decision in Roe v. Wade, the first federal personhood amendment—the Human Life Amendment—was 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 approach—attack 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 weren’t 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.)

‘Abortion is bad for women’

“The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women.”

That’s what Clarke Forsythe, senior counsel for Americans United for Life, said in an article published by CBS News in 2009. AUL’s 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 wasn’t 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 movement’s decision to focus on “women’s 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 they’re “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 hospitals—even clinics that only provide medication abortion. States forced doctors to get admitting privileges at local hospitals—even 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.

Women’s health and safety. That’s what politicians repeatedly claimed their goal was when it counted—in 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 “women’s health and safety” charade in Whole Woman’s Health v. Hellerstedt, the case challenging Texas HB 2, sweeping legislation that Texas Republicans admitted was intended to close clinics.

In Whole Woman’s 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 hadn’t done anything of the kind.

In one of her shorter concurrences—clocking in at two pages—Ruth 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 Woman’s 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.

It’s certainly on their radar.

The fight for personhood resumes

During a Newsweek podcast appearance with Rewire News Group’s Executive Editor Jessica Mason Pieklo, anti-abortion leader Lila Rose laid the anti-choice movement’s cards on the table:

There’s no reason that we should treat children at the moment of birth different than children before birth. They are still human beings. Human life starts—the science is clear when human life begins—it 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. That’s not just a general argument for human rights; it’s 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.

They’ve got momentum, they’ve got power, and they’ve got a Supreme Court stacked with justices just waiting to back them up.

And this time, they’re not particularly concerned about protecting women. They can’t 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 other—the 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 it’s that chaos that led to the myriad defeats the personhood movement suffered in the early 2010s. But it’s a new decade with a new cultural zeitgeist. The “protect women” drumbeat is silent, and increasingly the claim to care about women’s 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 don’t 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 it’s fetus über alles. It’s 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 it’s 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 doesn’t mean they’re 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 Women’s Health, but after that decision comes down, the movement’s approach to ending abortion entirely—or trying to anyway—will be unified. And that should make every abortion rights advocate nervous.