Curated by It’s That Part™ — Originally published by Faith and Proverbs on .
Most pro-life Christians are well versed in the scriptural, philosophical, and scientific arguments that support our belief that the fetus is a person. We can probably quote Psalm 139:15–16 and several other passages that affirm the value of unborn life. We can appeal to science by pointing out that from the moment of conception, the zygote has a unique genetic code and therefore isn’t merely an appendage of his or her mother.
Yet we may never have examined the complexities of legal recognition of fetal personhood. The pro-life movement has argued for the last 60 years that the Constitution affirms the rights of people from the moment of conception. So far, the Supreme Court hasn’t accepted this argument.
In Personhood: The New Civil War over Reproduction, Mary Ziegler, a law professor at the University of California, Davis, rigorously explains some of the legal implications of fetal personhood in the debate over abortion and suggests that if the Supreme Court did embrace the pro-life movement’s constitutional argument, it might create more complications than pro-life activists expect.
Ziegler isn’t part of the pro-life movement. She doesn’t write as a Christian or engage with any theological or philosophical arguments. However, she’s remarkably fair-minded and does her best to be as nuanced and objective as possible. For this reason—as well as the fact that she’s the nation’s most prominent legal expert on the history of abortion policy—it’s worth listening to what she says about the law. She reveals legal complexities that pro-life advocates should consider as we work to end abortion.
Criminal Consequences
As Ziegler shows, based on arguments about fetal personhood, the repeal of Roe v. Wade was never going to be sufficient for the pro-life movement. Instead, we can expect the pro-life movement to push for a Supreme Court declaration that the Fourteenth Amendment’s prohibition on depriving a person of life without due process applies to the unborn from the moment of conception.
The pro-life movement has argued for the last 60 years that the Constitution supports affirms the rights of people from the moment of conception. So far, the Supreme Court hasn’t accepted this argument.
One legal implication of fetal personhood is that women who obtain abortions might be charged with homicide. This doesn’t have to be the case. Ziegler notes that from the 1960s until the late 2010s, nearly all national pro-life leaders insisted constitutional protection of fetal life wouldn’t result in punishment of women. But she also suggests this insistence might be hard to maintain in our current legal system because withholding punishment is based on the assumption that women are victims rather than agents of abortion.
That victim status reflects a patronizing view of women, which is at odds with how women are generally seen in civil law. That view probably can’t be sustained in the case of women who self-abort through pills taken in the privacy of their own homes. “If a court recognized personhood, that might require prosecutors to treat the fetus like any other homicide victim,” Ziegler states. “How could the anti-abortion movement claim that personhood required equal punishment of those who harmed the fetus without calling for the prosecution of women?” (143–44).
Ziegler hopes she’s wrong on this point. She gives extensive coverage to fetal personhood advocates who support defending the value of fetal life through an expanded social safety net rather than criminalization of those who obtain abortions. “Even today,” she says, “it is possible to imagine a vision of fetal rights less focused on criminalization” (220). Yet she notes that those who support stiff penalties for abortion may have logic on their side if constitutional recognition of fetal personhood becomes a reality.
Constitutional Confusion
Ziegler also argues that a fetal personhood declaration from the Supreme Court will have unfortunate consequences for constitutional law. She explains that historical evidence is at odds with the pro-life movement’s view that the Fourteenth Amendment includes fetuses in its reference to “persons.” Thus, an originalist view of the Constitution—the view that the text should be interpreted according to the original intended meaning of its authors—won’t produce the interpretation of the amendment that the pro-life movement favors.
If the amendment had been widely understood at the time of its passage as mandating protection of the unborn from the moment of conception, it’s strange that none of the people at the time, such as Horatio Storer, who campaigned for stricter anti-abortion laws at the state level, cited the amendment. It’s also strange that several states waited for decades after the amendment’s ratification before passing anti-abortion laws.
The most likely originalist reading of the amendment, whose text begins “All persons born or naturalized in the United States,” must account for its opening clause—that is, the amendment likely applies only to people already born, not those still in the womb. Only in the 1960s—a century after the amendment was ratified—did anyone begin to claim it protected fetal personhood. When they did so, Ziegler argues, “they developed something new” (3).
It may be because of originalism’s limitations that some postliberal pro-life legal scholars, such as Adrian Vermeule, have already abandoned originalism. Instead, some favor theories of constitutional interpretation that give greater latitude to reinterpreting the text according to natural law principles of morality.
In addition, Ziegler says, the attempt to apply the amendment’s equal protection clause to fetuses may jeopardize judicial precedents for some civil rights protections for African Americans. During the civil rights era, Ziegler states, “the courts, in interpreting the Equal Protection Clause, had begun pointing to the fallout a group face from years of discrimination.” In contrast, the fetal personhood argument focuses on “physical dependence and weakness, not past injustice or present political powerless” as “the central concern of the Equal Protection Clause” (xiv).
Ziegler’s arguments may be hard to accept for many pro-life Christians. She relies on specific understandings of legal concepts likely unfamiliar to those who aren’t lawyers or legal historians. It seems intuitive that if fetuses are people made in God’s image, we should want to enshrine this principle in civil law and have fetal personhood recognized by the Supreme Court. But the law’s evolution sometimes makes implementing simple ideas much more complex. Those committed to applying the Constitution’s original meaning need to be certain we’re interpreting the amendment correctly and craft legislation in light of that understanding.
Committed Consistency
Ultimately, the church’s theological affirmation of fetal personhood doesn’t depend on what the Constitution says. Regardless of whether or not Ziegler’s constitutional arguments are valid, our convictions about unborn children as image-bearers of God remain unchanged.
The law’s evolution sometimes makes implementing simple ideas much more complex.
Moreover, as Ziegler suggests in her conclusion, pro-lifers can protect fetal life even without a fetal personhood declaration from the Supreme Court. For example, the pro-life movement can and should continue the work of crisis pregnancy centers and even legal restrictions on abortion at the local level in the current legal regime.
Constitutional protection of fetal personhood has long been the holy grail for the pro-life movement. Many Christians will continue working to achieve it. Nevertheless, Ziegler’s warnings about the unintended consequences of a common pro-life constitutional strategy may well influence our thinking about the best approach.
Whatever we do in the legal sphere to protect unborn human life must reflect not only our convictions about the value of the unborn but also our commitment to honest interpretation of the Constitution and love for our neighbors. Those looking for shortcuts will not be happy with this book. But those willing to consider the full complexity of abortion policy debates will find useful insights in Ziegler’s carefully reasoned legal analysis. Personhood reminds us of the complexity of maintaining respect for all persons when campaigning against abortion in the legal sphere.
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Originally sourced via trusted media partner. https://www.thegospelcoalition.org/reviews/personhood/
