Personhood: The New Civil War over Reproduction by Mary Ziegler • Yale University Press • 2025 • 376 pages • $35
On March 20 of this year, paramedics responded to a call requesting medical help for a woman who was unconscious and bleeding at an apartment complex in Tifton, Georgia. They determined she had miscarried, and they transported her to a hospital for treatment.
The next day, the 24-year-old woman was arrested and charged with “concealing the death of another person” and “abandonment of a dead body.” According to a local news report, a witness told police that the woman had discarded the fetus, which was at 19 weeks’ development, in a dumpster.
About a week later, my phone buzzed with a text from a friend that included a link to a news story from Bowling Green, Kentucky, where we teach at Western Kentucky University. The story was scant on details, but the gist was that a maintenance worker had discovered a fetus in the sewage system of an apartment building. The police had investigated, and since the fetus could not have been viable outside the womb, they were electing not to press charges.
That the authorities would feel the need to weigh in on something as mundane as a miscarriage in our small college town was not shocking to us, but it was galling. After all, the American College of Obstetricians and Gynecologists estimates that some 10 percent of clinically recognized pregnancies at 12 weeks or less end in miscarriage. Other broader estimates are higher, at closer to 25 percent—meaning millions of women experience miscarriage in their lifetimes.
In Georgia, the district attorney ultimately dropped the charges against the Tifton woman, but in his statement, he left the door wide open for future prosecutions, perhaps even in this case. “While law enforcement acted in good faith and responded to a very difficult and emotional situation, it’s now clear that no criminal law was violated,” the district attorney said. “This case highlights the importance of careful review and thoughtful decision-making, particularly in sensitive situations like pregnancy loss.” He warned that the case may be reopened “if additional information or incriminating evidence becomes available.”
The Georgia case has alarmed abortion rights advocates because it was pursued under the state’s six-week abortion ban, the Living Infants Fairness and Equality (LIFE) Act, which provides legal recognition to any embryo with a so-called “heartbeat.” (At around six weeks’ gestation, a flickering of electricity appears within a portion of tissue that will become a heart should the embryo continue to develop. The American College of Obstetricians and Gynecologists does not recognize this as a heartbeat.) A bill that would have gone even further, establishing personhood at conception, fizzled out this session. The threat of prosecution in cases of miscarriage is made all the more terrifying by the fact that miscarriage and abortion that is self-managed with medication look virtually identical.
Self-managed abortion is not specifically prohibited in Georgia or most other states, but that has not stopped police from investigating women upon discovery of fetal remains. “Overzealous police and prosecutors have circumvented the law’s parameters in many states, subtly using criminal laws not meant to apply to allegations of self-managed abortion,” explains researcher Laura Huss in a 2022 post for If/When/How, a reproductive justice legal advocacy group.
If you’re an American woman who cares about bodily autonomy, the past decade or so has been excruciating. Almost everyone with whom I commiserate has a particular moment when they knew it was over: For me, it came when Brett Kavanaugh was confirmed to the Supreme Court despite credible accounts of past sexual misconduct. The Court was the last real line of defense for the right to access abortion in this country. With Kavanaugh’s confirmation, the Court shifted, and the threat became impossible to ignore.
Now that Roe has been overturned by the conservative Court, abortion foes have a fresh item at the top of their legal agenda: establishing mere embryos as people with legal rights that would outweigh those of the pregnant person. While the concept is not new, it seems to carry more weight in a national legal milieu that does not protect the right to abortion care. Georgia’s LIFE Act is a prime example. Passed in 2019, the six-week ban was overturned as unconstitutional in 2020, but that ruling was reversed in September 2022 in the wake of Dobbs, and the law is now in effect. Perhaps most famously, in a ruling last year, an Alabama court granted personhood status to frozen embryos, halting in vitro fertilization services in the state for weeks until lawmakers passed a carveout to protect IVF providers from prosecution. At least 24 states, according to legal advocacy group Pregnancy Justice, have laws on the books that include personhood language to regulate or ban abortion.
As author and legal scholar Mary Ziegler documents across her prolific body of work, the damage we’ve experienced recently has been decades in the making. And it’s far from over. In her latest book, Personhood: The New Civil War over Reproduction, Ziegler shows that the anti-abortion movement has never been content to stop at overturning Roe—indeed, “[F]rom its inception in the 1960s, it has always been a fetal personhood movement.” And although there is perhaps no more maddening assessment for an author than to say their book is “timely,” because such a description has nothing to do with the quality of the book, reading about these cases while following Ziegler’s detailed history has felt unnerving, even as someone who is painfully aware of the current reality of reproductive health.
In Personhood, Ziegler explains that true believers understand fetal personhood to be anchored in the Constitution’s Fourteenth Amendment, which grants all citizens equal protection under the law. Anti-abortion proponents who adhere to the concept of personhood are compelled by two core beliefs: “that the fetus is a separate, unique human individual from the moment of fertilization,” and “that because of that biological and moral uniqueness, the Constitution gives (or at least should give) that individual rights.”
A bright line connects this ideology, the legal strategy that sprang from it, and the case in Georgia. Without the concept of fetal personhood, there would be no threat of arrest for abandoning a “dead body” in the aftermath of nature’s whims, which are painful enough on their own.
According to data from Pregnancy Justice, more than 1,800 pregnancy-related charges were issued between 1973 and 2022, when the Dobbs decision came down. In the year after Dobbs, “[A]t least 210 pregnant people faced criminal charges for conduct associated with pregnancy, pregnancy loss, or birth,” according to Pregnancy Justice’s report—the largest number of cases in a single year on record. Most of these cases involved substance use. Prosecutions were launched in 12 states. Alabama and Oklahoma account for the majority of those, with 104 and 68 cases, respectively. More than 75 percent of the defendants who endured investigation were low-income.
Even before fetal personhood laws could survive a court challenge, authorities found ways to prosecute pregnant people under child endangerment statutes. Take Alabama’s “chemical endangerment” law, for instance, which aimed to protect children from exposure to drugs when methamphetamine use was rampant in the Southeast, but was quickly turned against people found to have used substances during pregnancy. The bottom line of such laws is that a potential life is deemed more valuable than an existing person who is wrestling with addiction—or, in some cases, has taken an innocuous Valium or ingested poppy seeds.
It’s worth noting that these cases are notoriously difficult to track. A 2015 investigation by ProPublica and AL.com into the aforementioned chemical endangerment law found, thanks to painstaking reporting that pieced together public records from across the state, that at least 479 women in Alabama had been prosecuted under the statute since 2006. That analysis suggests that the true number of women who have endured legal scrutiny of their pregnancies may be much higher than Pregnancy Justice’s estimates.
In the Georgia case, the charges were brought under laws that are intended for the disposal of fully developed human remains, and such laws aren’t exactly common knowledge. Neither is the protocol for the aftermath of a miscarriage. “Most people have no idea what they’re supposed to do, and that’s because there are no rules,” Grace Howard, associate professor of justice studies at San José State University and author of The Pregnancy Police, told The Cut.
Ziegler’s book explores the tension between the intent of long-dead lawmakers, who don’t seem to have been invested in the notion of personhood as it relates to abortion, and the so-called “originalist” values of the present-day anti-abortion movement (and the Republican Party). Anyone who paid attention to the last several Supreme Court confirmations is familiar with the concept of originalism, loyalty to which is often bandied about as proof of one’s conservative legal bona fides. Anti-abortion originalists believe that every time the authors of the Constitution refer to a “person”—for example, in the Due Process and Equal Protection Clauses—they are referring to the status of an egg after fertilization. Dissenters argue that the Fourteenth Amendment does not mention abortion anywhere, and they point to the infamous three-fifths clause of Article I, Section 2, which clearly refers to enslaved persons who have already been born.
Ziegler takes us back to a time before “originalism” became a buzzword, to the origins of the American Medical Association (AMA). The AMA began as a group of wealthy, white, Protestant men who considered their medical ability to be inherent in their identity. They weren’t subtle about their identity politics—Ziegler writes that one South Carolina member of the AMA said in 1842 that without the standards enforced by the group, “every old woman, savage Indian, or Guinea Negro could choose to start up and call themselves doctors.”
Led by Harvard Medical School professor Horatio Storer, a contingent within the AMA successfully campaigned in the late 1850s for the organization to stake out an anti-abortion stance. Their talking points were laced with racism and xenophobia. Storer cautioned that Catholic immigrant women were giving birth at higher rates than “native-born” women and that the West and South might be populated by the children of “aliens.” Over the following decades, state after state adopted the abortion bans that Storer and the AMA advocated.
The overarching anti-abortion approach changed with the rise of the civil rights movement. “In unsettling the meaning of equality,” Ziegler writes, “debates about racial justice prompted a wider variety of Americans to think about what qualified as discrimination and why.” At this point, the book begins to illustrate the exhaustive way in which abortion foes, the majority of whom are and were white, co-opted the language of the civil rights and abolition movements for their argument that a fetus is tantamount to a human being. Among the originators of this approach was Robert Byrn, a law professor at Fordham University who came up with a scheme to put himself forward as a “special guardian” for fetuses scheduled to be aborted in New York. Byrn became, in Ziegler’s words, “convinced that the unborn child faced the most daunting discrimination of any group in the country.” Byrn wrote, “Like a person whose skin pigment is other than white, the unborn child is recognizable as a human being simply because he is a human being.”
I suppose this is the man we can consider the godfather of such clumsy billboard slogans as “Black babies matter” and “The most dangerous place for an African American is in the womb.” What these oversimplistic, social-media-ready catchphrases miss—and what Byrn and his ilk failed to examine in good faith—is the way that institutional racism has consistently put pregnant people of color at a disadvantage. Black pregnant people are three times more likely to die of pregnancy-related causes than their white counterparts, and Black infants are more than twice as likely to die. Pregnancy criminalization is similarly discriminatory—in Pregnancy Justice’s post-Dobbs report, half of fetal and infant demise cases involved people of color, the majority of whom were Black.
The strategy is a classic one—white paternalism, in this case, masquerading as surface-level social concern. Fetal personhood is similarly situated. Abortion foes want to recognize a fetus, or even an embryo, as a full human being without making any meaningful effort to care for it beyond seeing it brought to term. Although there have been some scattershot proposals to “make birth free” through government support, Ziegler points out that more often, “antiabortion groups and Republican politicians assigned the job of helping pregnant Americans to private religious charities, crisis pregnancy centers, and maternity homes.”
At present, 38 bills have been introduced in 24 state legislatures this year to ban abortion by establishing fetal personhood, according to the Guttmacher Institute’s legislation tracker. And of course, it’s unlikely that Congress and the President are done with this issue: We’re still locked in a will-he-won’t-he storyline as to whether President Trump will attempt to enact a federal abortion ban, perhaps even through fetal personhood. This country may well grow darker for women long before it improves.
Still, if fetal personhood is taken to its logical extreme—which challenges the use of popular, effective methods of birth control such as IUDs and prohibits IVF treatment—it’s hard to imagine the average American being supportive. The fallout in Alabama was so severe that lawmakers scrambled to make amends with their angry constituents, and IVF enjoys overwhelming support across the country. The United States does, it turns out, have a breaking point. Even if the bar is so low as to be in hell, it does exist.
It is impossible to read Personhood without a growing sense of dread, together with overwhelming awe at the effects of the anti-abortion movement’s long-term organizing. Perhaps we should hope that abortion rights advocates are on a similar path. Better late than never, I suppose.
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