Alex Aronson: Trump and SCOTUS took away abortion rights. And they’re not done yet.
By Alex Aronson
In two gut-wrenching stories this month, ProPublica reported on the tragic deaths of Amber Thurman and Candi Miller—two mothers in Georgia who could still be alive if not for the state’s abortion ban. Thurman, a 28-year-old pregnant mother in Georgia, failed to receive the medical care she needed to survive because of delays imposed by the state’s restrictive abortion laws. Candi Miller was forced to manage her own abortion at home, too afraid of the legal consequences she might face given the state’s abortion ban to seek out life-saving medical care.
As more Americans learn about senseless deaths like Thurman’s and Miller’s, they’re recoiling at the Republican Party’s dangerous anti-abortion agenda. So it is no surprise that even as he brags about appointing the “genius” anti-abortion Supreme Court justices who cleared the way for states to create this calamitous new reality, Donald Trump is trying his best to distance himself from the Right’s toxic anti-abortion agenda. Trump has said—unconvincingly—that he supports rape and incest exceptions to abortion bans and has repeatedly avoided answering whether he would sign a nationwide ban.
But maybe that’s the wrong question. Trump and anti-abortion Republicans may not even need to pass a national abortion ban to achieve one. That’s because, once again, they plan to outsource their dirty work to their unelected allies on the U.S. Supreme Court.
The evidence is right there in their plans. The new Republican Party platform suggests that there is a constitutional bar to abortion, referring to the 14th Amendment’s protections for “life” and “liberty” in its anti-abortion section. Project 2025, meanwhile, is imbued with language about rights beginning at the “moment of conception.” These references are intended to signal support for a constitutional theory, referred to as “fetal personhood,” which holds that embryos are not potential persons but rather complete human beings, protected by the full sweep of the 14th Amendment, from the moment of conception.
The 14th Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law” and] “deny[ing] to any person within its jurisdiction the equal protection of the laws.” This dangerous argument threatens a host of reproductive freedoms, including IVF. And the Republican supermajority on the Supreme Court could use it to wipe away state laws protecting abortion access by declaring them unconstitutional. Rape and incest exceptions would also likely not survive.
The seeds of a potential 14th Amendment fetal personhood doctrine have already been sown. Eradication of abortion nationwide is perhaps the foremost concern of Leonard Leo, the dark-money impresario and Federalist Society leader to whom Donald Trump outsourced judicial selection during his administration. Leo—who has extensive ties to hardline anti-abortion Christian groups—carefully hand-picked not only three stridently anti-abortion Supreme Court justices but also a host of lower-court judges with track records of hostility towards women’s reproductive freedom, often rooted in fetal personhood theory. Leo is also closely connected to the leading “natural law” theorist of the fetal personhood movement, Princeton scholar Robert P. George. George’s 2011 book Embryo lays out the movement’s core arguments and has now been cited in anti-abortion opinions by Leo-selected federal judges.
It is reasonable to question whether even the majority that gave us Dobbs would endeavor to eliminate abortion access nationwide by unilateral judicial fiat, which would draw an even fiercer backlash. But in a world where Trump may have the ability to fortify his Dobbs majority by appointing even more justices in their mold, it’s far from alarmist to take this threat seriously now. And, especially if there is a president like Trump in place who would be willing to execute such a shocking deprivation of rights, it is possible they have the votes already.
Start with Dobbs. As legal commentators immediately observed, Justice Alito’s majority opinion in Dobbs frequently refers to a fetus as an “unborn human being” — phrasing that itself conjures fetal personhood. The fact that all of the Republican justices, except Chief Justice Roberts, signed on to Alito’s opinion without questioning that usage suggests that those five justices are amenable to the fetal personhood line of reasoning. All six of the Republican appointees, including Roberts, expressly rejected legal precedents that relied on “viability” to protect a woman’s right to terminate a pregnancy before a fetus can survive outside the womb, paving the way for a potential edict on fetal personhood.
Some of the Republican justices have used language indicating they would go even further. Clarence Thomas, for example, wrote in his dissent in the 2020 case June Medical Services v. Russo that the core holding of Roe was that “the Constitution protects a woman’s right to abort her unborn child[.]” This presumably means a fetus is always just an unborn child, right from conception.
Justice Neil Gorsuch has also indirectly commented on the fetal personhood theory. He wrote a book condemning assisted suicide before joining the Court. In that book, based on a thesis he wrote at Oxford supervised by his mentor John Finnis (another influential anti-abortion natural law theorist), Gorsuch included a footnote stating that “abortion would be ruled out by the inviolability-of-life principle I intend to set forth if, but only if, a fetus is considered a human life.” He stated that the Supreme Court had “unequivocally” held that a fetus is not a person, but cited Roe for that proposition. Roe, of course, is no longer good law.
Justice Amy Coney Barrett, for her part, signed a letter in 2006 pledging to “defend the right to life from fertilization to natural death,” leaving little question on how Barrett would rule on the question.
Justice Kavanaugh signed onto the Dobbs majority and its “unborn human being” language, but he also wrote a separate concurrence in Dobbs to state that the Constitution neither legalizes abortion nor outlaws it, and that the “Court therefore does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion.” But it’s fair to question—if push comes to shove—whether Kavanaugh would stick to his guns and cast the decisive vote against enshrining fetal personhood into the Constitution. After all, Leonard Leo, who sponsored Kavanugh’s rise to and ensured his place on the Supreme Court, is sitting on a mountain of Kavanaugh’s skeletons that remained hidden during his confirmation hearings. And Kavanaugh alone among the Dobbs majority said Congress could “resolve” the issue of abortion—indicating that he would not vote to strike down a national abortion ban that the federal legislature could pass to enforce, in their own independent constitutional judgment, a fetus’s 14th Amendment right to life.
The fate of women and families across the country depends on whether these deeply ideological, unelected justices are willing to help usher in a nationwide abortion ban via an invented doctrine of “fetal personhood.” All five members of the Dobbs majority have provided evidence that they personally believe life begins at conception. The only remaining question is whether they are willing to inject their personal views at the expense of the lives of mothers like Amber Thurman and Candi Miller, yet again. That—and whether Trump will have the opportunity to bolster their majority with yet more justices who seem wholly indifferent to women’s lives and freedoms.
Alex Aronson is the co-founder and Executive Director of Court Accountability, a nonpartisan organization working to confront judicial corruption and authoritarian abuse of power.
