Fetal Personhood and the Pro-Life Movement Post-Roe

After the Supreme Court overturned Roe v. Wade, some expressed fears that the Dobbs decision could spell the end of fertility treatments in states with wide-sweeping abortion bans. Earlier this year, those fears were realized. The Alabama State Supreme Court ruled this February that frozen embryos, like those used in fertility treatments such as IVF, can be considered children under the state’s 1872 “Wrongful Death of a Minor Act.” Dissenting, Justice Greg Cook wrote, “The main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama.” Indeed, in the wake of the ruling, three Alabama fertility clinics paused IVF treatments for fear of prosecution. After national backlash, the Republican-controlled state legislature moved quickly to pass a bill narrowly tailored to provide immunity for doctors performing IVF treatments. Notably, it did not seek to overturn the State Supreme Court’s ruling granting personhood to embryos. Lawmakers in over a dozen other states have introduced fetal personhood bills that would declare embryos as children under the law. Many pro-choice activists viewed proponents of fetal personhood as fringe extremists, but in post-Roe America, they are now in the driver’s seat of the pro-life movement.

The push for fetal personhood began in the 1960s and 70s before Roe v. Wade by a group of predominantly Catholic pro-life activists who were worried about states loosening abortion restrictions. Their argument for constitutional recognition of fetal personhood is rooted in Section 1 of the Fourteenth Amendment, which states, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Some pro-life activists contend that fetuses count as a “person” for the purposes of Section 1. Texas argued this point before the Supreme Court in Roe, but the court rejected this argument, pointing out that no other case held that a fetus is a person under the Fourteenth Amendment. Even after overturning Roe, the Supreme Court declined to take up a case in which the appellants argued that a Rhode Island law that codified the right to an abortion violated a fetus’s constitutional rights. The Supreme Court’s unwillingness to hear a case deciding the constitutionality of fetal personhood has led the proponents of the fetal personhood theory to channel their energy into legislative action.

As of March, nearly half of all states have either passed or debated similar laws in recent years, with seventeen states introducing legislation and four states passing statutes declaring that fetuses have personhood. In Missouri, for example, one lawmaker is planning to introduce a bill that would grant fetuses and embryos the same rights as newborns, even as Missourians are heading to the polls this November to vote on whether or not to overturn the state’s wide-reaching abortion ban. In Washington D.C., over 130 members of Congress have co-sponsored the “Life at Conception Act,” which would declare that the Fourteenth Amendment would protect fetuses and embryos from the point of fertilization. After Dobbs, some pro-life activists see statues enshrining fetal personhood into law as the logical next step. After all, the cornerstone of the pro-life movement is the argument that life begins at conception. 

Some opponents of the recent legislative push for fetal personhood, however, argue that these laws could have far-reaching negative consequences. Over 50 women were tried for manslaughter or child neglect after losing their pregnancies due to miscarriages and stillbirths in states like Alabama and Oklahoma that have embraced fetal personhood between 1999 and the fall of Roe. Police arrested over 1300 women for endangering “unborn life” between 2006 and 2022. After Dobbs, these prosecutions became more widespread, with over 200 people charged for conduct related to their pregnancies in the year after the Supreme Court overturned Roe. In September 2023, after 34-year-old Brittany Watts suffered a miscarriage in the bathroom of her own home, she was charged with felony abuse of a corpse. Doctors who perform abortions are also under threat of prosecution, even in states where lawmakers and courts have carved out exceptions in the case of rape, incest, or danger to the life of the mother. In Texas, just hours after Kate Cox won a court order stating she could obtain an abortion for a medical emergency, the state’s Attorney General Ken Paxton threatened to sue any doctor who would provide her an abortion. 

Even still, pro-choice activists argue that an embrace of fetal personhood legislation could result in convoluted legal issues that go beyond abortion access. With the Alabama Supreme Court case, which effectively banned IVF treatments in the state before legislative action, certain types of fertility treatments and contraception could be outlawed. This case comes after a 2018 referendum that enshrined the state’s commitment to protecting the “sanctity of unborn life” into the Alabama constitution. Realizing pro-choice advocates’ concerns about access to contraception, some pro-life advocates also argue that some contraceptives such as IUDs and Plan B violate fetal personhood by preventing the implementation of fertilized eggs. Furthermore, the adoption of legal status for fetuses and embryos could complicate other seemingly unconnected aspects of the law. Would Social Security cards need to be issued at conception? Would embryos be eligible for inheritance? Could pregnant women legally ride in the carpool lane? In addition to the many legal questions, advocates for fetal personhood also face an uphill political battle in enacting their policy goals.

In the post-Roe push for fetal personhood, pro-life activists are faced with the stark reality that many of their positions are unpopular with the general public. 63% of Americans say that abortion should be legal in all or most cases. Furthermore, 70% of Americans believe that access to IVF is a “good thing.” In the wake of the Dobbs decision, popular referendums have restored abortion protections across the country, even in deeply conservative states like Montana and Kentucky. Still, Republican Vice Presidential nominee J.D. Vance has previously called for a national abortion ban, and the Heritage Foundation (the same organization that wrote Project 2025) issued a report calling for national legislative recognition of fetal personhood. This November, voters in ten states will vote on referendums to protect abortion access in their state. Voters in all fifty, however, will vote to determine not only the future of abortion access but the future viability of fetal personhood as a legal theory.

Wesley horn is a first-year studying History at Brown University. He is a staff writer for the Brown Undergraduate Law Review and can be reached at wesley_horn@brown.edu.

Veronica Dickstein is a junior at Brown University studying International and Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu