Abortion rights scholar releases new book about fetal personhood

Mary Ziegler, a constant source of expertise in recent years, published a book detailing how the antiabortion concept and strategy evolved.

A new book shows the fight for fetal personhood among antiabortion activists and leaders for the past half-century.

Mary Ziegler, a leading professor who has published on the topic, recently wrote and released Personhood: The New Civil War over Reproduction. Personhood refers to when the legal protections of a human being–life, liberty, and the pursuit of happiness–begin for someone.

The debate in abortion politics focuses on whether it starts at some point in the pregnancy or birth. The stakes of this debate couldn’t be higher. If that marking point were at conception, then abortion would be treated as murder, and the woman and doctor could be charged for it.

One of the key components of personhood arguments is that the Fourteenth Amendment extends to fetuses. Many scholars contend that antiabortion laws came into being during the time of the amendment’s passage, which they say is a sign that the amendment’s authors thought fetuses were entitled to the same rights. Ziegler points out that the framers of the Fourteenth Amendment didn’t discuss abortion, and that most Americans at the time believed it should be legal up to the point of the quickening, which is when fetal movement occurs.

Furthermore, Ziegler points out that many within the medical establishment were racist at the time. So they didn’t want to acknowledge that black people had rights, which made them reluctant to connect the rights of fetuses to the Fourteenth Amendment. Horatio Storer, an 18th-century antiabortion gynecologist, focused on biology and medicine in making his arguments against the procedure.

The book nicely summarizes the pre-Roe movement with details about the Comstock era, Margaret Sanger’s life, and the Catholic Church’s reaction to birth control and abortion before the Griswold and Roe decisions. Priests like Father Francis Filas, who was a theologian, said that fetuses were whole human beings entitled to the same rights as everyone else.

It’s important to note that while conservatives at the time pushed to connect the Fourteenth Amendment and other constitutional guarantees to advance fetal personhood, the Supreme Court generally used the Constitution to advance women’s and reproductive rights. So they were at odds.

Ziegler traces the origins of the modern abortion movement’s push for personhood to the 1960s, when its leaders sought to make fetuses look marginalized. Previously, abortion had been stigmatized because it was linked to promiscuity. As values changed, that criticism didn’t shift public opinion. So they needed to change the focus of the debate, which then moved toward the rights of the unborn. They tried to connect that cause with other legal movements against racial discrimination and emphasized individual differences.

That narrative later shifted as the Christian right rose. They embraced traditional values, which often emphasized white identity. There were also efforts to establish fetal personhood by prosecuting drug offenders who had caused a miscarriage through their use. Other methods employed were to push for the prosecution of someone who caused a miscarriage in another woman with the charge of homicide.

The research I found most illuminating and something I hadn’t known dealt with some lesser-known historical figures, like Robert Byrn, a lawyer who crafted the fetal personhood argument, and Dave Tomshany, a campaign manager in the California GOP who organized rallies, arranged for women to attend legislative hearings, and passed out pamphlets in the 1960s about abortion.

These depictions of less-covered but indispensable figures in both the abortion rights and antiabortion movements often distinguish Ziegler’s work. There’s a sense of discovery when reading her work about people we seldom hear about and likely didn’t know made a difference, let alone to the extent that they did.

Ziegler's book heavily emphasizes Byrn’s life and contribution, giving readers an understanding of his importance. Seeing how he and others behaved before and after the Roe decision was interesting. Many pushed for a constitutional amendment establishing fetal personhood after the Supreme Court issued that opinion in 1973. Others realized it was implausible and instead sought to craft arguments based on existing amendments.

The book does a satisfactory job discussing the roles that politicians like Jimmy Carter and Ronald Reagan had in shaping the debate over abortion. That aspect has been covered extensively in other works, so it makes sense that Ziegler chose to dedicate more space to figures and moments that were less familiar to people who had read about abortion history.

Ziegler’s talents as a researcher shine through most when she focuses on how legal movements developed. It happened with her descriptions of Byrne, and again with the rise of the Federalist Society and Rutherford Institute in the 1980s. They sought to connect the legal push against abortion and LGBT rights to Christian principles. Key figures included Clark Forysthe, an antiabortion lawyer who has pushed for fetal personhood for decades. He wanted drug users to be charged for causing the death of their fetuses, which has been a controversial prosecutorial strategy for a long time.

Ziegler does a nice job summarizing how the antiabortion movement behaved during and reacted to the Clinton Administration. That was when the debate over partial birth abortions began. It centered on a controversial method of performing an abortion later in pregnancy. Antiabortion leaders like Doug Johnson saw this as an opportunity to sensationalize abortion and make it seem like a lurid and morbid procedure that should shock the public.

I like it when abortion researchers depict the conflicts within movements. Whether it’s the antiabortion or abortion rights movements, it is enlightening to see when there are egos at work and power struggles happening between high-level leaders. Lawyers are notorious for wanting to get credit and to have the prevailing influence in advancing specific causes. So there are disputes between legal leaders like Jay Sekulow, who started the American Center for Law and Justice, and Max Staver, who started Liberty Counsel.

As with our movement, different groups and people compete for funding, so there is a lot of sniping. I wish Ziegler’s work had explored this more. But it’s sometimes hard to get the movement to criticize other leaders honestly. There’s a push for solidarity on both sides of the debate to show a united front. Ziegler has also been an outspoken advocate for abortion rights, so she wouldn’t have the same level of access to antiabortion leaders as someone who hadn’t staked out such a strong position.

That shows one of the dilemmas of modern abortion researchers. How do you gain widespread access to both sides? It’s hard to avoid bias in the abortion debate. Everyone has an opinion and a stance. Interview subjects sense that after probing the interviewer for a while, to see what they believe. They may or may not agree to talk based on what they hear.

Ziegler also explores disagreements of pharmacists over medication abortion and how the debate over fetal personhood extends to IVF and stem cell research. The book provides a valuable and succinct history of reproductive rights.

It also provides a recent history of the last 10 years and how the abortion precedent has evolved. People who have covered or read about things like the Alabama Supreme Court’s decision about IVF are likely familiar with much of this.

The book is a meaningful contribution to understanding the fetal and embryonic personhood debate. It will be helpful for lawyers and scholars to consult when writing essays and amicus briefs in cases that undoubtedly will test the concept and decide whether it is ever established.