The Abortion Fight Has Never Been About Just Roe v. Wade

Anti-abortion-rights activists have turned their arguments away from protecting democracy and toward maximizing protection for fetal life.

Anti-abortion-rights signs at a protest
Alex Wong / Getty

About the author: Mary Ziegler is a professor at the Florida State University College of Law. She is the author of Abortion and the Law in America: Roe v. Wade to the Present.

This week, the Supreme Court agreed to hear a case that could result in the overruling of Roe v. Wade. The case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that bans abortion starting at the 15th week of pregnancy. Significantly, the statute draws the line before fetal viability—the point at which survival is possible outside the womb. The Court has previously held that before viability, “the state’s interests are not strong enough to support a prohibition of abortion or substantial obstacle to the woman’s effective right to elect the procedure.” To uphold Mississippi’s law, the Court would have to rewrite the rules—perhaps just the opportunity it needs to overturn Roe altogether.

If that happens, it will represent the culmination of decades of work by anti-abortion-rights activists. But for those activists, gutting Roe would be just the beginning.

Ever since Roe, abortion-rights foes and their Republican allies have been asking the Court to reverse course—to acknowledge that the Constitution has nothing whatsoever to say about abortion, either in favor of or against it. Antonin Scalia, the Supreme Court justice arguably most beloved by conservatives, routinely stated that the Constitution is silent on abortion. Republicans have railed against the Court’s judicial activism in Roe, insisting that the justices robbed the American people of the opportunity to decide the abortion issue for themselves. In this account, Roe did not just destroy valuable opportunities for compromise on abortion; the decision did fundamental damage to America’s democratic principles, removing one of the most controversial issues from representative legislatures and resolving it by judicial fiat.

But within the anti-abortion-rights movement, there is not so much talk about democracy anymore. Now some abortion-rights opponents are quite literally looking for a Roe of their own, asking the Court to recognize fetal rights under the Fourteenth Amendment. Remember that overturning Roe wouldn’t make abortion illegal; it would mean that states could set their own abortion limits, which would no longer be subject to constitutional review. That will never be enough for anti-abortion-rights activists, though. In the conservative magazine First Things, John Finnis, a professor emeritus at the University of Notre Dame, recently made an argument that could provide the framework an anti-abortion-rights Supreme Court could use to outlaw abortion across the country: that the legislators who wrote the Fourteenth Amendment viewed unborn children as persons. If the Constitution recognizes fetal personhood, then unborn children would have the right to equal protection under and due process of the law. Abortion would be unconstitutional in New York as well as in Alabama. Other leading anti-abortion-rights scholars have made the same argument.

Finnis’s article has provoked debate across the ideological spectrum. The conservative attorney Ed Whelan has taken issue with the substance of Finnis’s claim, suggesting that unless the anti-abortion-rights movement first wins over public opinion, Finnis’s approach will backfire. Progressives have been far harsher, unsurprisingly. Writing in The New York Times, the columnist Michelle Goldberg denounced what she calls an authoritarian turn in anti-abortion-rights advocacy—one more sign that the GOP has changed fundamentally in the post-Trump era.

The abortion debate has never been about just Roe—and it’s never been about letting a popular majority have a say. What’s new is that this argument now meets a receptive Supreme Court for the first time in more than a generation.

The anti-abortion-rights movement mobilized in the 1960s, pre-Roe, as states began loosening criminal abortion laws. From quite early on, abortion-rights foes defined their cause as a constitutional one—a defense of the rights of unborn children. Anti-abortion-rights lawyers argued that everything from “the Declaration of Independence [to] the United States Declaration of Human Rights” protected a fetal right to life. Then as now, anti-abortion-rights lawyers paid particular attention to the Fourteenth Amendment. One of the post–Civil War provisions passed during Reconstruction, the amendment guarantees “persons” equal protection under the law and due process of the law. Quite clearly, the amendment extended those protections to recently freed Black people. Long before Roe, anti-abortion-rights leaders insisted that the Fourteenth Amendment did the same thing for unborn children. Their argument was simple: If fetuses qualify as persons under the Fourteenth Amendment, the Constitution itself prohibits abortion.

The appeal of this personhood argument to those who believe that a fetus is a person created in God’s image or is otherwise sacred is obvious. When states proposed laws allowing abortion only in cases of rape, incest, fetal abnormality, or a severe threat to the mother’s health, anti-abortion-rights activists almost universally rejected them. Believing that unborn children have a right to life, the movement’s leaders rejected any middle-ground law as unconstitutional and immoral.

But arguments for personhood under the Fourteenth Amendment also attracted support partly because, leading up to Roe, abortion-rights foes viewed the courts as a potential ally. Across the country, lawyers went on the offensive, asking courts to appoint them the guardians of unborn children or to reinstate criminal laws that legislatures had wiped away. Their optimism seemed reasonable until the Supreme Court decided Roe. While recognizing a privacy right to end a pregnancy, the Court also rejected the case for personhood under the Fourteenth Amendment.

In recent decades, strategies like Finnis’s have rarely dominated national conversations. That’s not primarily because abortion-rights opponents changed their mind about the meaning of the Fourteenth Amendment. Instead, talking about personhood seemed to be a waste of time. After all, following Roe, the courts appeared to be antagonists rather than allies.

Moreover, by the early 1980s, the anti-abortion-rights movement had come to rely on the Republican Party, which Ronald Reagan had made the “party of life.” And the Fourteenth Amendment argument did not work as well for the movement’s new Republican allies. GOP leaders had mocked the Court for inventing rights from whole cloth and stripping the people of the power to decide for themselves whether abortion should be legal. If a conservative Court effectively outlawed all abortions, people could easily accuse the justices of committing the sin that the GOP had long decried.

So instead, abortion-rights opponents argued that Roe was a prime example of judicial activism, out of step with the original, publicly understood meaning of the Fourteenth Amendment.

In this, they found allies in the Reagan administration, which was well served by arguments about judicial activism. The president and his allies accused the Court of overreaching in Roe—and doing real damage to the country. The administration suggested that an imperial judiciary was riding roughshod over American democracy. Christian conservatives had hoped that the president would appoint judges who openly opposed abortion. But Reagan, who had vowed to depoliticize the judiciary, could hardly fulfill that promise without seeming hypocritical. Labeling Roe an activist decision—and calling for a more restrained approach to constitutional interpretation—signaled that the Reagan administration was looking for anti-Roe judges while allowing the president to say that his judges would never impose their own policy preferences on the American people. Besides, when it came to a fragmented GOP coalition, almost everyone disliked something that the Court had done recently. Hatred of judicial activism united Reagan Republicans who disagreed about much else.

So for years, anti-abortion-rights activists lambasted the Roe Court for failing to uphold democracy. But recently, their leaders seem far less concerned about popular opinion. Some states have passed sweeping laws curtailing abortion rights—many without rape or incest exceptions—even though polling suggests that the public does not support them. Talk has turned away from protecting democracy and toward maximizing protection for fetal life.

This is partly because abortion-rights opponents are optimistic about the Supreme Court—and with good reason. Donald Trump chose three new justices, creating a supermajority that seems likely to reverse Roe and perhaps go much further. The movement doesn’t feel that it has to settle anymore. The Court’s decision to take Dobbs certainly suggests that Roe is not long for this world.

Another factor is that changes to the GOP have made it easier for abortion-rights foes to pursue a personhood strategy. In past years, the Republican Party (like the Democratic Party) shied away from arguments that could expose it to charges that it had embraced extremism. In the post-Trump era, however, the GOP has been more inclined to try to energize the base or shrink the electorate than win new supporters. In earlier decades, the anti-abortion-rights movement might have hesitated to promote Finnis’s argument for fear of alienating voters—Gallup recently found that 79 percent of Americans think that at least some abortions should be legal. Today’s Republican Party does not concern itself much with popular majorities in the first place.

Is the anti-abortion-rights movement correct that a personhood argument could be welcomed by the Court? Even the most ardent supporters of a Fourteenth Amendment strategy recognize its perils. Finnis himself acknowledges that the Court would face “unimaginable resistance” if it followed his advice. Overturning Roe is one thing; recognizing fetal personhood is another. Doing so would force the Court to continue taking abortion-adjacent cases, as it might need to figure out what personhood means across a wide variety of legal domains, such as whether a fetus can make personal-injury claims and how fetuses figure into the tax code. Finnis and his allies respond to this counterargument by saying that a personhood strategy still makes sense: Social movements rarely succeed unless they fight for what they really want—and persuade the public to embrace their view of the world.

Anti-abortion-rights groups may have forgotten the most important lesson of all, though, one that pro-abortion-rights groups learned the hard way in the aftermath of Roe: Winning in the Supreme Court gets you only so far. Harry Blackmun, the author of the Roe decision, kept a clipping of a poll suggesting that the large majority of Americans believed abortion to be a decision between a woman and her doctor. In writing the Roe decision, he hoped to tamp down the controversy surrounding abortion and maybe even pave the way to a less acrimonious debate. We all see how that worked out.