By Mary Ziegler
The Trump Administration’s hallmark to date has been warp speed on virtually every issue, often with little regard for the Constitution. Abortion policy has been a different story. Trump did roll back some Biden-era initiatives and pardoned protestors convicted of violating the Freedom of Access to Clinic Entrances Act, but the administration has yet to act on most of the anti-abortion movement’s priorities, including limiting access to the abortion pill mifepristone, and reinventing the Comstock Act, a nineteenth-century obscenity law, as a means to ban the mailing of abortion pills or paraphernalia.
But anyone looking for a sign of things to come might start in an unexpected place: the administration’s executive order declaring that there are only two genders. The executive order, entitled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, defined male and female, respectively, as “a person belonging, at conception, to the sex that produces the small reproductive cell” and a “person belonging, at conception, to the sex that produces the large reproductive cell.” The most obvious thing about the executive order’s definitions were that they didn’t make any sense: While chromosomal differentiation of the sexes occurs at fertilization, the rest of sex differentiation, including an individual’s development of sperm or egg cells (the “small” and “large” reproductive cells referred to in the executive order) takes place weeks later.
But the reference to fertilization is there for another reason: It’s a nod to the idea of fetal personhood, the idea that life–and constitutional rights–begin the moment an egg is fertilized. The anti-abortion movement may have other short term priorities, especially cutting down on the supply of abortion pills. But fetal personhood is the movement’s holy grail—the next big priority that abortion opponents will chase for as long as Donald Trump remains in office and likely well beyond.
Since the Supreme Court overturned Roe v. Wade in 2022, abortion opponents have been more open about demanding the recognition of constitutional fetal rights. That was most obvious after the Alabama Supreme Court decided a 2024 case called LePage v. Center for Reproductive Medicine, where the court ruled that frozen embryos are considered “children” under state law, temporarily halting IVF services in the state. But fetal personhood arguments date much further back. Indeed, the anti-abortion movement was never focused just on ending abortion rights, as I show in my new book, Personhood: The New Civil War Over Reproduction. At least as far back as the 1960s, the anti-abortion movement was a fight for constitutional fetal rights.
When abortion opponents first turned to arguments for fetal rights, it was more a matter of strategic necessity. States had started reforming their criminal abortion laws, sometimes adding new exceptions, sometimes repealing old bans all together. A mostly Catholic anti-abortion movement was desperate for a new argument against liberalization. Arguing that legal abortion would lead to promiscuous sex, or that abortion was immoral, didn’t seem to be working, and so anti-abortion leaders argued that liberal laws were quite simply unconstitutional because fetuses and embryos were persons with their own fundamental rights.
From there, though, fetal personhood arguments took on a life of their own. They became the rallying cry for generations of anti-abortion activists. These arguments justified a so-called Human Life Amendment, a fetal personhood constitutional amendment that was the centerpiece of the GOP platform from 1980 until 2016. Fetal personhood arguments went on to fuel the rise of fetal homicide laws in the 1980s and 1990s, and the rising rate of prosecution for pregnancy-related conduct, including substance use and the handling of miscarriages.
What exactly fetal personhood meant, however, and how you’d enforce it, remained unsettled. Anti-abortion leaders disagreed on whether personhood required benefits for women—remember the Texas woman who wanted to drive in the HOV lane while she was pregnant? Others insisted that personhood was incompatible with any exception to an abortion ban, or even that personhood required that women be criminally punished for obtaining an abortion.
All of these debates were academic until recently. When the Supreme Court overturned Roe v. Wade, the game changed. Most leading anti-abortion groups signed on to something called the New North Star Strategy, which described incremental steps toward the recognition of constitutional fetal rights, from wrongful death laws to child support laws to limits on storage or destruction of embryos in IVF. The GOP platform still included a nod to personhood too, but tellingly, Trump didn’t run on a platform calling for a new constitutional amendment. Instead, the 2024 platform suggested that the Constitution already recognized fetal personhood, and that it was up to conservative judges to interpret it that way.
That’s where the fight for fetal personhood is most likely headed under Trump. But that doesn’t mean that the administration will sit on its hands in the meantime. It still seems more likely than not that the administration will end telehealth access to mifepristone, a drug used in more than half of all abortion procedures in the United States. There’s also a chance that Trump will give in to abortion opponents’ demands to treat and enforce the Comstock Act as an abortion ban.
But one way or another, fetal personhood will remain the end goal for many in the anti-abortion movement, and Trump will do the most to advance that agenda by nominating conservative judges to the federal courts. There’s a reason, after all, that fetal personhood proponents are increasingly focused on the federal courts. Most Americans are unhappy about the fall of Roe. They would hardly welcome personhood policies that overturn ballot initiatives on reproductive rights and or prohibit IVF. But if the Supreme Court is the one deciding, it might not matter what voters want.
It’s obvious now that Dobbs wasn’t the end of fights over reproductive rights, especially since Americans have already started fighting to get back what the Supreme Court destroyed in 2022. But it should also be clear that the anti-abortion movement is far from done either. When it comes to fetal personhood, Trump’s executive order on gender is just the beginning.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at UC Davis, a leading expert on the law and history of abortion in America, and the author of Personhood: The New Civil War Over Reproduction.
