Mary Ziegler on Fetal Personhood: The New Legal Battlefield Over Reproduction
JUDJ-Prepared Summary from September 3, 2025 | The Politics of Control: Abortion, Power, and How Abortion Shapes American Politics. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, Mary Ziegler—the Martin Luther King Jr. Professor of Law at UC Davis and author of six books on the law, history, and politics of abortion—joined moderator Patt Morrison to unpack the rising push for “fetal personhood.” The conversation centered on how defining embryos as legal “persons” from the moment of conception is reshaping the terrain far beyond abortion, influencing IVF, contraception, and even how states try to project power across borders.
Introduction
Ziegler explains that “personhood” is a legal claim: that the word “person” in constitutional provisions—especially the 14th Amendment—applies at fertilization. While the idea has long existed within the anti-abortion movement, it’s gaining new prominence because it offers a path to nationwide restrictions without relying on voter-approved amendments. The goal is not simply to let states decide; it’s to secure recognition of fetal constitutional rights in courts, which could override state-level protections and dramatically change health care and family planning.
Beyond Roe v. Wade: The New Legal Frontiers
Overturning Roe was not the finish line. Ziegler argues it was the starting gun for a new strategy: move from state-by-state bans to federal recognition of fetal rights. Because public opinion historically supports abortion rights—with time limits—the movement is turning to the judiciary, where a conservative supermajority may be more receptive than voters. Reporters once read party platforms as “moderation” when they dropped calls for a personhood amendment; Ziegler notes the real pivot was asserting that the Constitution already contains fetal rights—an argument crafted for courts, not ballots.
Wider Implications of Personhood
Personhood reaches well beyond abortion. IVF is especially vulnerable: if embryos are legal persons, routine practices like creating and storing multiple embryos, or discarding nonviable ones, could trigger civil or criminal liability and shut clinics down. Some advocates also target emergency contraception and certain birth control methods they claim act after fertilization. The ripple effects can become absurd and contradictory—think carpool-lane claims for pregnancy or tax deductions for embryos—highlighting the difficulty of forcing a sprawling legal system to treat a fertilized egg as identical to a born person.
Political Strategy and Selective Enforcement
Ziegler describes a movement adept at reframing—shifting from morality to civil rights language, then to originalism, whichever opens a door. Inside the movement, there’s a split: “abolitionists” who say personhood logic requires punishing women for murder, versus leaders who insist women are “second victims” of an “abortion industry.” Either way, the real-world pattern is selective enforcement. Prosecutors already bring cases tied to pregnancy outcomes—miscarriages, substance use, even behavior during pregnancy—disproportionately affecting marginalized women. Personhood accelerates that dynamic without delivering consistent or fair rules.
The Role of the Comstock Act
Enter a 150-year-old federal law: the Comstock Act. Though largely dormant, it still includes language about mailing abortion-related items. Ziegler says activists are trying to revive it as a national ban on abortion pills, medical equipment, and even telehealth prescribing—sidestepping messy fights over which state’s law applies. If courts accept this reading, federal law would preempt protective state laws, dramatically curbing access to medication abortion and tightening control over reproductive health supply chains.
What's Next?
Ziegler’s bottom line: fetal personhood is a far-reaching legal project—not a single policy. It threatens to criminalize aspects of reproductive health care, destabilize IVF, and empower selective prosecutions that fall hardest on the vulnerable. Yet she sees an important counterweight: voter backlash. Public anger has slowed more extreme measures and deterred sweeping federal action. The road ahead will be fought in courts, legislatures, and elections—but the public’s voice, she stresses, is already shaping the limits of how far personhood can go.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.