Dobbs as way station

The two big abortion cases before the SCOTUS this term are both frivolous challenges to federal law, unless some robust idea of fetal personhood is lurking just beneath the surface of the explicit legal arguments:

Neither case presents the justices with a clear opportunity to endorse the notion of fetal personhood — but such claims are lurking beneath the surface. The Idaho abortion ban is called the Defense of Life Act, and in its first bill introduced in 2024, the Idaho Legislature proposed replacing the term “fetus” with “preborn child” in existing Idaho law. In its briefs before the court, Idaho continues to beat the drum of fetal personhood, insisting that EMTALA protects the unborn — rather than pregnant women who need abortions during health emergencies.

According to the state, nothing in EMTALA imposes an obligation to provide stabilizing abortion care for pregnant women. Rather, the law “actually requires stabilizing treatment for the unborn children of pregnant women.” In the mifepristone case, advocates referred to fetuses as “unborn children,” while the district judge in Texas who invalidated F.D.A. approval of the drug described it as one that “starves the unborn human until death.”

Fetal personhood language is in ascent throughout the country. In a recent decision, the Alabama Supreme Court allowed a wrongful-death suit for the destruction of frozen embryos intended for in vitro fertilization, or I.V.F. — embryos that the court characterized as “extrauterine children.”

Less discussed but as worrisome is a recent oral argument at the Florida Supreme Court concerning a proposed ballot initiative intended to enshrine a right to reproductive freedom in the state’s Constitution. In considering the proposed initiative, the chief justice of the state Supreme Court repeatedly peppered Nathan Forrester, the senior deputy solicitor general who was representing the state, with questions about whether the state recognized the fetus as a person under the Florida Constitution. The point was plain: If the fetus was a person, then the proposed ballot initiative, and its protections for reproductive rights, would change the fetus’s rights under the law, raising constitutional questions.

As these cases make clear, the drive toward fetal personhood goes beyond simply recasting abortion as homicide. If the fetus is a person, any act that involves reproduction may implicate fetal rights. Fetal personhood thus has strong potential to raise questions about access to abortion, contraception and various forms of assisted reproductive technology, including I.V.F.

Legally restricting access to abortion makes no sense unless one accepts the idea of fetal personhood. That is the only plausible basis for the radical incursion on the reproductive autonomy of women that such restrictions represent. (As they used to say back in the bad old 1970s, if men could get pregnant abortion would be a sacrament).

The anti-abortion movement has always been completely clear about this, although for strategic reasons it will pretend otherwise when politically convenient. A prime example of such pretending is Sam Alito’s opinion in Dobbs, which says abortion is a classic example of an issue that ought to be left to individual states, because it’s such a morally controversial matter. But this again simply makes no sense: the only reason abortion can be considered a morally controversial matter is if there’s controversy about the personhood of the embryo/fetus. If the embryo/fetus is a person, then the notion that whether it can be murdered or not should be left up to individual states, as if it were a question of estate tax rates or the like, is absurd on its face.

The real logic of Dobbs is that abortion should be illegal in essentially all circumstances as a matter of federal constitutional law, because the “preborn baby” is a person, within the meaning of the 14th amendment. In other words, where all this is heading is toward not the nullification of federal abortion rights via individual state legislation, but the enshrinement of a federal constitutional right of personhood that will make abortion permanently illegal in the United States, absent a constitutional amendment, which, because of the massive democratic dysfunctions of our federal constitutional system, will be impossible to ever enact.