The arc of the fetal personhood movement signals where Republicans may be headed.
To many Americans, the notion that a court could effectively shut down in vitro fertilization in Alabama came as a shock. But such a ruling was only a matter of time after the Supreme Court struck downThe Alabama Supreme Court set off the controversy last month when it ruled that the state’s Wrongful Death of a Minor Act treats a frozen embryo as a “child” or a “person.” The fallout from the ruling was swift.
But the connection between originalism and personhood was made relatively recently, and from the beginning, it was a marriage of convenience. Some anti-abortion lawyers did make arguments that might sound originalist. But for the most part, the movement argued that the meaning of the 14th Amendment changed over time.
Ultimately, anti-abortion lawyers turned to originalism in order to consolidate an evolving partnership with the conservative legal movement. At the outset, the movement was heavily Catholic, and often framed personhood in ways that resonated for believers steeped in teachings about human dignity and natural law. But after the Southern Baptist Convention, the largest Protestant denomination in the United States, cemented its opposition to abortion in the 1980s, conservative evangelicals joined the movement in unprecedented numbers.
In the United States, by contrast, anti-abortion groups have adopted a punitive approach in part because they have aligned with and relied on the Republican Party since the 1980s. It was at that time that anti-abortion groups gave up for the time being on ratification of a constitutional personhood amendment — instead focusing on the courts. The effort to recognize fetal rights also went underground: Abortion opponents began looking for ways to write fetal rights into other areas of the law.
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