What Personhood Means

Personhood: The New Civil War over Reproduction. By Mary Ziegler. New Haven: Yale University Press. 2025. Pp. xviii, 223. Hardcover, $35; paper, $22.

Introduction

Professor Mary Ziegler’s¹Professor of Law, University of California, Davis School of Law.

comprehensive history of the prenatal²Although personhood advocates often refer to “fetal personhood” or “fetal life,” this Book Review uses the terms “prenatal personhood” and “prenatal life” instead. Cf. Evan D. Bernick & Jill Wieber Lens, Original Public Meaning and Pregnancy’s Ambiguities, 122 Mich. L. Rev. 1443, 1444 n.7 (2024) (adopting similar terminology and justifying this choice). Referring to “prenatal” personhood and life better reflects the ambitions of many members of the antiabortion movement: protection of all life from the moment of fertilization. See id. The term fetus is underinclusive of this goal because there is a large temporal gap between fertilization and the existence of a fetus, which develops from (1) a zygote to (2) a blastocyte to (3) an embryo before becoming a fetus after nine weeks of pregnancy. See Fetal Development, Cleveland Clinic (Mar. 19, 2024), https://my.clevelandclinic.org/health/articles/7247-fetal-development-stages-of-growth [perma.cc/J9YH-XGAH].

personhood movement, Personhood: The New Civil War over Reproduction, does not offer a simple definition of “personhood.” The preface situates readers with a broad definition, noting that personhood is “a claim about the meaning of the nation’s Constitution” (p. viii). This claim, at a high level of generality, is that the U.S. Constitution does or should protect the rights of prenatal life (p. viii). While this definition may seem simple enough, the remainder of Personhood complicates it. Ziegler explains that antiabortion advocates, who have long agreed that prenatal life should have rights, have never agreed about what exactly those rights are or what it would look like to enforce them (pp. viii–ix). Through textured movement history and disarming vignettes of individual antiabortion activists, Personhood documents this long history of disagreement within the antiabortion movement. It also canvasses the competing theories of prenatal personhood that have animated this conflict. In doing so, Personhood unsettles, rather than settles, the meaning of prenatal personhood.

Ziegler’s complication of the meaning of personhood is an essential contribution. By unsettling what prenatal personhood means, Ziegler opens up new ways to understand—and resist—personhood arguments in law and in politics. Since Dobbs v. Jackson Women’s Health Organization³Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

eliminated the federal right to abortion and signaled some justices’ openness to personhood claims,⁴The majority opinion is peppered with language that suggests that fetuses do or should possess at least some of the rights of persons. See, e.g., id. at 2261 (urging that the Constitution does not require states “to regard a fetus as lacking even the most basic human right—to live”); see also id. at 2256 n.41 (noting that a “highly disproportionate percentage of aborted fetuses are Black” and implying that they are therefore protected from laws that invidiously discriminate on the basis of race).

scholars have begun to push back on the idea that fetuses and embryos should have rights under the Constitution. So far, these scholars have focused on contesting the claim that the word “person” under the Fourteenth Amendment includes prenatal life.⁵See, e.g., Bernick & Lens, supra note 2, at 1448 (explaining how the lived experience of pregnancy in 1868, which was full of ambiguities, indicates that the common usage of “person” at the time of the passage of the Fourteenth Amendment did not include prenatal life); Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, 75 Stan. L. Rev. 1091, 1150–55 (2023) (arguing that the fact that many states permitted abortion at the time of the passage of the Fourteenth Amendment shows that fetuses and embryos did not count as “persons” under that amendment).

This focus, while important, does not challenge the common assumption that recognizing prenatal personhood would have clear and dramatic consequences as a matter of law.⁶Some scholars appear to assume this premise without defending it. See, e.g., Bernick & Lens, supra note 2, at 1443 (appearing to assume that recognition of prenatal personhood “would require criminalization of abortion in all states”); Tang, supra note 5, at 1151 (claiming that recognition of prenatal personhood would “constitutionally obligate[]” all states to ban abortion). Other scholars have more affirmatively advanced the view that protecting prenatal personhood would require a broad range of legal changes as a matter of constitutional law. See, e.g., Lawrence J. Nelson & Susan Kennedy, The Impossibility of Fetal Personhood, 59 U.C. Davis L. Rev. Online 105, 107–10 (2025) (arguing against recognition of prenatal personhood on the ground that doing so would require states to ban all abortion as murder, requiring them to limit exceptions to abortion bans, and more).

Personhood disrupts this assumption. The book shows how the consequences of prenatal personhood have never been clear, even among its advocates. Vagueness about what personhood requires, in fact, has lent political strength to the antiabortion movement. By illustrating the strategic vagueness of personhood arguments, Personhood reveals a new path of resistance: specific doctrinal analysis of what personhood entails.

This Review engages in the concrete doctrinal analysis that Personhood invites. Such analysis reveals serious problems with a wide range of claims about what personhood requires.⁷See infra Part II.

While personhood advocates assert that recognizing prenatal personhood would mandate meaningful protection of prenatal life under the Fourteenth Amendment, the reality is that contemporary Fourteenth Amendment jurisprudence extends little meaningful protection to most people.⁸While equal protection doctrine may have done important work to dismantle the formal discrimination of the eras of Jim Crow and coverture, it does not protect women, people of color, LGBTQ+ people, and other marginalized groups from contemporary forms of discrimination. See infra Part II. Thus, the primary beneficiaries of equal protection doctrine today are litigants who challenge policies designed to remediate race and gender inequality.

Take due process doctrine. Various vulnerable individuals have been recognized as persons possessing substantive rights to life and liberty under the Due Process Clause. Yet the Supreme Court has emphasized that these people have no right to the state protection or resources needed to actually enjoy these rights.⁹See infra notes 31–42 and accompanying text.

Similarly, equal protection doctrine offers little protection to most constitutionally recognized persons. Women and people of color, for example, have long been recognized as protected persons under the Equal Protection Clause.¹⁰Craig v. Boren, 429 U.S. 190, 197 (1976) (“[S]tatutory classifications that distinguish between males and females are ‘subject to scrutiny under the Equal Protection Clause.’ ” (quoting Reed v. Reed, 404 U.S. 71, 75 (1971))); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 293–99 (1978) (holding that while the Equal Protection Clause was primarily intended to protect Black people from discrimination, it is best understood to protect people of all races from discrimination).

Yet the Supreme Court has adopted such narrow and formalistic equality rules that women and people of color are unable to challenge virtually any government action on equality grounds.¹¹See infra Part II.

Constitutional liberty and equality jurisprudence thus afford little protection to any person. Designating prenatal life as constitutional persons should thus have little practical effect as a matter of constitutional law.

The doctrinal weakness of personhood arguments reveals a subtle unifying thread in the fractious movement history that Ziegler documents. While personhood advocates have made a wide range of arguments about what personhood requires, all of those arguments are calls for constitutional change.¹²See infra Part III.

Because existing constitutional principles do little to protect most people from harm, personhood advocates hoping to use these principles to protect prenatal life necessarily seek to change them.¹³See infra Part III.

They must, that is, find a way to expand the presently narrow protections that attach to constitutional personhood. In the abstract, there are multiple paths to such constitutional change. Personhood advocates could, for example, secure constitutional protection of prenatal persons by ensuring that constitutional liberty and equality doctrines meaningfully protect all people.¹⁴See infra notes 82–85 and accompanying text.

In the alternative, they could ensure protection of prenatal life by selectively reforming this doctrine to protect prenatal persons alone.¹⁵See infra notes 85–86 and accompanying text.

Ziegler’s account of the post-Dobbs personhood movement suggests the latter is far more likely.¹⁶See pp. 204–16.

By showing the many things that prenatal personhood can mean, Ziegler ultimately frees readers to see what personhood claims will likely mean in the future, particularly for the constitutional rights of others. As she documents, contemporary personhood advocates have increasingly pursued legal change that does not plausibly recognize the equal personhood of all people, especially pregnant people.¹⁷See infra notes 96–102 and accompanying text.

Contemporary personhood advocacy, in this way, advances a deeply unequal vision of constitutional change. Under this vision, personhood advocates do not seek to extend the same basic constitutional protections to all people. Instead, they seek to extend protections to prenatal life that are, and will likely remain, unavailable to women, people of color, and other vulnerable Americans.¹⁸See infra notes 102–103 and accompanying text.

Such asymmetrical protection of prenatal life will, in turn, further erode the rights of these vulnerable Americans. Understanding this point clarifies the stakes of prenatal personhood arguments for other Americans and thereby may help to mobilize those who seek a more egalitarian constitutional future.

This Review proceeds in three parts. Part I explains how Ziegler’s history of the personhood movement reveals how prenatal personhood is not a concrete policy proposal but rather an undefined ideal that has meant many things to many people. This history also reveals how vagueness about the meaning of personhood has helped drive the success of the antiabortion movement. Part II draws on insights from Personhood ’s historical account to consider a doctrinal objection to personhood arguments. It engages in concrete constitutional analysis to show that there are serious doctrinal problems with virtually all of the claims that antiabortion advocates make about what personhood entails. Part III shows how this doctrinal analysis, combined with the more recent history Ziegler discusses in Personhood, gives new meaning to contemporary personhood arguments. These sources suggest that prenatal personhood is becoming synonymous with the devaluation of the liberty and equality of other vulnerable Americans.

I. The Vagueness of Personhood

Ziegler’s comprehensive history of the personhood movement reveals that prenatal personhood has meant many different things to many different people over time. It shows how antiabortion activists with divergent beliefs about gender, religion, race, equality, and political strategy have all maintained that prenatal personhood embodies those beliefs. These activists have, in turn, urged that prenatal personhood requires very different, and at times incompatible, legal policies. This vagueness of prenatal personhood has proven productive for the antiabortion movement. Ambiguity about what constitutional personhood means and requires has helped activists launder their more controversial motivations, obscure divisions within their movement, build effective coalitions, and adapt to changing political climates. The claim that the Constitution should protect prenatal life has proven politically expedient precisely because it has no settled meaning. This Part explains how Ziegler’s history reveals both the vagueness of personhood and its political utility.

Prenatal personhood arguments are of relatively recent vintage. They emerged in earnest in the 1960s as Americans increasingly rejected the religious and gender-traditionalist values that had long animated the antiabortion movement. In this context, antiabortion activists shifted to a new argument: Abortion is wrong not because it defies God’s will or traditional gender roles, but because it violates the Constitution (pp. 20–21). Drawing on the ongoing rights revolution at the Warren Court, these activists argued that prenatal life, like historically oppressed racial groups, deserved liberty and equality rights under the Fourteenth Amendment (pp. 21–34).

Exactly what constitutional personhood required, however, was vague from the start. Advocates of prenatal personhood, for example, advanced competing theories of constitutional equality that required very different legal interventions. One of the innovators of fetal equality arguments, Robert Byrn, argued that the Equal Protection Clause required the government to protect the most vulnerable members of society (pp. 30–32). This theory of equality suggested that the law should focus on protecting Black people (rendered vulnerable by past discrimination) and fetuses (rendered vulnerable by physical dependence) alike from discrimination (p. 31). As white backlash to the civil rights movement intensified, however, subsequent personhood advocates offered a different theory of equality that was more appealing to a white majority. Retreating from questions of historical vulnerability, these advocates urged that the Equal Protection Clause forbade laws that failed to treat people as individuals (pp. 34, 36–37, 51–53, 73). This anticlassification theory of equality directed the government not to consider any supposedly irrelevant characteristic, whether that be a person’s race or their location inside another person’s uterus.¹⁹See pp. 36–37, 51–53.

This ambiguity about the requirements of personhood was ultimately a boon to the antiabortion movement. Among other things, this ambiguity helped to unite and organize a sometimes-fractured antiabortion movement. The many possible meanings of constitutional equality, for example, helped paper over differences between antiabortion advocates who opposed the civil rights movement and those who supported it (pp. 44–45). These advocates could all agree that equality was important at a high level of generality, even if they didn’t agree on the specifics of what equality meant (pp. 44–45). The vagueness of constitutional personhood also facilitated cooperation among those with different ideas about gender, morality, and political strategy. Throughout Ziegler’s historical account, antiabortion advocates with different values disagreed about—and sometimes clashed over—policy proposals, including the treatment of unmarried mothers (pp. 47–48), contraception (p. 58), abortion ban exceptions (pp. 57–58), and the Equal Rights Amendment (pp. 60–62). In these moments of conflict, the idea that the Constitution should protect prenatal personhood served as a unifying message and shared ideal that permitted these advocates to both coexist and cooperate.²⁰See, e.g., p. 58 (noting that an antiabortion leader “turned to personhood claims to unify” after a conflict); pp. 60–61 (describing how advocates who deeply disagreed about the merits of the Equal Rights Amendment all appealed to fetal personhood to support their viewpoint).

Beyond assisting in coalition building, the vagueness surrounding personhood helped the antiabortion movement address political liabilities. By the 1990s, for example, some members of the antiabortion movement urged that fetal personhood required punishment of, and even violence toward, those involved in abortions (pp. 96–97). This punitive logic suggested that fetal personhood demanded criminalization of women who sought abortions—a potential political landmine.²¹See p. 102.

Prenatal personhood was capacious enough to accommodate these more radical branches of the movement while also allowing moderates to offer a more politically expedient vision of personhood’s requirements. More moderate antiabortion activists, for example, argued that fetal personhood was best served by passing “right-to-know” laws that required doctors to inform supposedly unwitting women about the true nature of abortion before providing the procedure (p. 111). In this way, these advocates could claim that fetal personhood did not require punishing women but instead supported them by preventing them from being duped by the abortion industry. Thus, the vagueness of fetal personhood helped more moderate advocates navigate politics both within and without the antiabortion movement.

Ambiguity about the content and requirements of personhood continues to serve and unite an increasingly ambitious antiabortion movement. In the wake of Dobbs v. Jackson Women’s Health Organization,²²Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

antiabortion advocates have proposed a dizzying array of mechanisms to protect the rights of prenatal life, including criminalization of abortion and conduct while pregnant, prenatal child support laws, funding for crisis pregnancy centers, bans on IVF, abortion “trafficking” laws, and limits on medication abortion pills (pp. 206–08). Advocates have disagreed about whether the Constitution already recognizes fetuses and embryos as persons or whether a new constitutional amendment is needed to ensure such recognition (p. 205). And they have disputed whether constitutional personhood requires criminalizing pregnant persons who seek abortions (pp. 210–11). This multiplicity of personhood has facilitated an explosion of antiabortion advocacy through legal challenges to laws permitting IVF (pp. 213–14), the FDA’s approval of abortion medications (pp. 208–09), and a federal law protecting pregnant women’s access to emergency medical care (p. 215). It has also generated an attempt to recast the Comstock Act,²³An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use (Comstock Act), ch. 258, 17 Stat. 598 (1873) (codified as amended in scattered sections of 18, 19, and 39 U.S.C.).

an antivice law from the 1800s, as a nationwide abortion ban (pp. 209–10).

Ultimately, Ziegler’s historical account illustrates that the idea of constitutional personhood is not and has never been a single policy proposal. Rather, it is an undefined ideal that has helped fuel the success of the antiabortion movement through its many iterations. Constitutional personhood is vague enough that people with varying beliefs have been able to invoke it to support their vision of reform, pool resources, navigate political problems, and overcome differences. By showing how vagueness has facilitated the success of antiabortion personhood arguments, Ziegler illuminates a potential path to successfully countering them. The next Part shows how.

II. The Emptiness of Personhood

If personhood arguments work because their consequences are unspecified, specific legal analysis of what constitutional personhood requires may offer a powerful tool for challenging these arguments. This Part builds on the history presented in Personhood to show how concrete analysis of constitutional doctrine reveals serious problems with virtually all of the claims antiabortion advocates make about what personhood entails. Such analysis reveals what race and gender equality advocates know well: The fact that someone counts as a person under the Fourteenth Amendment does not entitle them to much constitutional protection. While access to the rights of personhood may have seemed promising when personhood arguments first arose in the 1960s, the Supreme Court has since whittled the liberty and equality protections of the Fourteenth Amendment down to virtually nothing.²⁴See infra Part II.

Because no person is entitled to substantial protection under the Fourteenth Amendment, establishing prenatal personhood would not require significant legal reforms as a matter of constitutional law. In this way, concrete doctrinal analysis deflates an entire spectrum of personhood arguments.

In the abstract, establishing prenatal personhood might seem to require important changes to our legal regime. This is particularly true under the Fourteenth Amendment’s Due Process Clause, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”²⁵ U.S. Const. amend. XIV, § 1.

While this clause speaks in the language of process, the Supreme Court has long held that it offers some substantive protection of a person’s life, liberty, and property.²⁶Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992), overruled on other grounds by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (“Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years . . . the Clause has been understood to contain a substantive component as well . . . .”).

Some personhood advocates point to the Due Process Clause to support the claim that recognizing fetuses and embryos as persons would require the state to affirmatively protect those persons’ right to life.²⁷See Joshua J. Craddock, Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?, 40 Harv. J.L. & Pub. Pol’y 539, 568–69 (2017) (arguing that a judicial decision permitting states to allow abortion “permit[s] ‘violation of the fetus’s constitutionally protected right to life without due process of law’ ” (quoting John D. Gorby, The “Right” to an Abortion, the Scope of Fourteenth Amendment “Personhood,” and the Supreme Court’s Birth Requirement, 4 S. Ill. U. L.J. 1, 4 (1979))).

Specifically, these advocates assert that prenatal personhood would require the state to ban abortion or otherwise protect prenatal life.²⁸Id. at 569.

Other scholars who are skeptical of constitutional protections for prenatal life have at times repeated this claim.²⁹Nelson & Kennedy, supra note 6, at 108 (taking the view that recognition of prenatal personhood would “require the State to ban all abortions” under “the Fourteenth Amendment in conjunction with other standard legal doctrines”); Tang, supra note 5, at 1151 (claiming that recognition of prenatal personhood would “constitutionally obligate[]” all states to ban abortion).

The claim that the Due Process Clause would require affirmative protection of prenatal life, however, ignores volumes of constitutional jurisprudence. Since shortly after the Fourteenth Amendment’s ratification,³⁰14th Amendment to the U.S. Constitution: Civil Rights (1868), Nat’l Archives (Mar. 6, 2024), https://archives.gov/milestone-documents/14th-amendment [perma.cc/J97P-HQZ6].

the Supreme Court has maintained that the Amendment only protects persons from state interference with their rights.³¹The Civil Rights Cases, 109 U.S. 3, 13 (1883) (“[T]he prohibitions of the amendment are against State laws and acts done under State authority.”).

The state action requirement means that the Fourteenth Amendment does not require the state to affirmatively protect any person against private interference with their rights to life, liberty, or property.³²Id. at 17 (“[C]ivil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals . . . .”).

This limitation on Fourteenth Amendment jurisprudence has long left vulnerable Americans—including those who are undeniably persons under the Constitution—without meaningful enjoyment of their rights to life and liberty. The Supreme Court first invoked this doctrine, for example, to invalidate federal civil rights legislation³³Id. at 23–26 (striking down the Civil Rights Act of 1875 as beyond Congress’s remedial power under Section 5 of the Fourteenth Amendment).

and abandon Black people to widespread discrimination and racial violence in the South.³⁴Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1342 (1952); see also Martha Minow, Alternatives to the State Action Doctrine in the Era of Privatization, Mandatory Arbitration, and the Internet: Directing Law to Serve Human Needs, 52 Harv. C.R.–C.L. L. Rev. 145, 148 (2017) (noting that in the wake of the decision “states failed to guard against racial discrimination in public accommodations, employment, and other activities and countenanced vigilante violence against African-Americans”).

More recently, the Court invoked state action doctrine to suggest that there is no constitutional violation when states fail to protect women from endemic domestic violence.³⁵See United States v. Morrison, 529 U.S. 598, 621–26 (2000) (suggesting that state governments’ failure to enforce their laws to protect women from private domestic violence did not constitute state action that Congress could remedy under the Fourteenth Amendment).

Further, the Court has relied on this doctrine to conclude that the state has no obligation to ensure that people have the economic resources necessary to exercise their fundamental rights.³⁶These proclamations often came in pre-Dobbs decisions where the Court did not dispute the existence of a fundamental right to abortion but concluded that the state had no obligation to ensure pregnant people could actually exercise that right. See, e.g., Rust v. Sullivan, 500 U.S. 173, 201 (1991) (“The Government has no affirmative duty to ‘commit any resources to facilitating abortions . . . .’ ” (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 511 (1989))); Harris v. McRae, 448 U.S. 297, 302, 316 (1980) (concluding that the federal government could prohibit the use of Medicaid funds for most abortions, as “although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation,” such as “[i]ndigency”). However, the Supreme Court has applied this rule to other liberty rights too, including rights to speech, religious liberty, parental liberty, and more. See cases cited infra note 37.

This rule has long prevented poor people from meaningfully enjoying their fundamental liberty rights.³⁷See, e.g., Lyng v. UAW, 485 U.S. 360, 369 (1988) (upholding a federal policy that denied food stamps to striking workers on the ground that the Constitution “does not confer an entitlement to such funds as may be necessary to realize all the advantages of [a protected] freedom” (quoting Regan v. Tax’n with Representation of Wash., 461 U.S. 540, 550 (1983))); Harris, 448 U.S. at 316–17 (1980) (upholding a federal law that denied funding to even medically necessary abortions on the ground that “[t]he financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice” are not of constitutional concern); S.A. Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 (1973) (denying that poor people’s fundamental rights to speak and to vote entitled them to the well-funded public education needed to exercise those rights).

In short, this longstanding state action doctrine should free states from any obligation to affirmatively protect prenatal life.

DeShaney v. Winnebago County Department of Social Services best illustrates this conclusion.³⁸DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989).

In that case, the Supreme Court rejected the Fourteenth Amendment liberty claim of Joshua DeShaney, a four-year-old boy whose father beat him so severely that he suffered permanent brain damage.³⁹Id. at 192–93, 202–03.

Even though the state received and failed to act on numerous reports of suspected abuse,⁴⁰Id. at 191–93.

the Court concluded that the state’s failure to protect Joshua did not violate his constitutional rights.⁴¹Id. at 191.

The Court reasoned that the state never had any obligation to protect Joshua in the first place: “[T]he Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property . . . .”⁴²Id. at 196.

Like many vulnerable Americans before him, Joshua’s status as a constitutional “person” did not require the government to provide the protection or resources he needed to live. Similarly, the status of personhood should not as a doctrinal matter mandate state protection of prenatal life.

Under existing due process doctrine, then, recognition of prenatal personhood would not entitle prenatal life to any of the various protections that personhood advocates seek. This doctrine would not require states to criminalize or otherwise punish abortion because abortion seekers are generally private actors. Nor would this doctrine entitle prenatal life or the pregnant people supporting that life to state resources. At least some personhood advocates are aware of this problem with constitutional liberty doctrine. As Ziegler notes, one early advocate of prenatal personhood acknowledged that constitutionally mandated protections for prenatal life would afford the “unborn child . . . more expansive rights than other persons” (p. 70). Another recognized that a pregnant person’s decision to get an abortion is exactly the kind of private action that the Fourteenth Amendment does not protect against (p. 143).

Likely because of these shortcomings of constitutional liberty doctrine, many personhood advocates have shifted to making equality arguments instead. Personhood advocates have argued, for example, that the state does in fact act when it “enforce[s] homicide laws against those who kill[] other persons but not those who kill[] fetuses through abortion.”⁴³P. 210; see also p. 143.

While this is framed as a response to the state action problem described above, it is actually an argument about equality. These advocates posit that the state’s failure to protect prenatal life is actionable because it is discriminatory and thus “denies the child in the womb equal protection of the laws.”⁴⁴Craddock, supra note 27, at 570 (quoting Charles E. Rice, Overruling Roe v. Wade: An Analysis of the Proposed Constitutional Amendments, 15 B.C. Indus. & Com. L. Rev. 307, 336 (1973)).

This argument suggests that even if the Due Process Clause does not require the state to affirmatively protect prenatal rights, the Equal Protection Clause does.

Under the anticlassification theory of equality that governs contemporary equal protection jurisprudence, however, state laws that permit abortion or otherwise fail to protect prenatal life are unlikely to violate the Equal Protection Clause. The anticlassification theory of equality that the Supreme Court—along with many personhood advocates (pp. 36–37, 51–53)—has endorsed requires heightened scrutiny only where the government classifies based on a suspect characteristic.⁴⁵Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Mia. L. Rev. 9, 10 (2003); Jessica A. Clarke, Scrutinizing Sex, 92 U. Chi. L. Rev. 1, 23 (2025).

Prenatal status is not such a suspect characteristic.⁴⁶See United States v. Skrmetti, 145 S. Ct. 1816, 1850 (2025) (Barrett, J., concurring) (contending that the Court has only recognized race, sex, and alienage as protected classes).

Accordingly, laws that discriminate based on prenatal status need only survive rational basis review, meaning that they must be rationally related to a legitimate state interest.⁴⁷Id. at 1828 (majority opinion).

Permissive reproductive regulations should easily clear this low constitutional bar.⁴⁸Id. (explaining that courts “generally afford . . . laws ‘wide latitude’ under this rational basis review” (quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985))).

Among other things, laws facilitating abortion and other reproductive healthcare rationally advance the legitimate state interest in protecting the health and life of pregnant people.⁴⁹See Maya Manian, The Consequences of Abortion Restrictions for Women’s Healthcare, 71 Wash. & Lee L. Rev. 1317, 1319 (2014) (“[A]ntiabortion government regulation detrimentally affects care for women in the context of miscarriage management, prenatal care, and the treatment of ectopic pregnancies.”); Kavitha Surana & Lizzie Presser, Women With High-Risk Pregnancies Have Limited Options Under Abortion Bans, ProPublica (Jan. 20, 2026), https://propublica.org/article/high-risk-pregnancies-chronic-conditions-abortion-bans [perma.cc/5YMJ-FFGZ] (reporting on how abortion bans can lead and have led to the preventable death of pregnant people in emergencies, even when they have exceptions to protect the life of the pregnant person).

Even if the Supreme Court were to take the novel step of recognizing prenatal life as a protected class, major obstacles would remain to a prenatal equality challenge to permissive abortion laws. Under contemporary equal protection jurisprudence, a law is presumptively unconstitutional only if it facially classifies or has a discriminatory purpose.⁵⁰Pers. Adm’r v. Feeney, 442 U.S. 256, 274 (1979) (setting forth this rule in the sex-based equal protection context); Washington v. Davis, 426 U.S. 229, 242 (1976) (setting forth this rule in the race-based equal protection context).

These narrow equality rules make it virtually impossible for any person, including women and people of color, to challenge state action that harms them.⁵¹See Laura Portuondo, The Myth of Equal Protection, 16 U.C. Irvine L. Rev. (forthcoming 2026) (manuscript at 17–27), https://dx.doi.org/10.2139/ssrn.5175147 [hereinafter “Portuondo, The Myth of Equal Protection”] (cataloging how contemporary equal protection doctrine has made it impossible for women or people of color to challenge virtually all state action that harms or targets them).

Indeed, these rules have been essential to shielding restrictive reproductive regulations from constitutional challenge by the pregnant people that they single out and disproportionately harm.⁵²Id. at 19–20.

These same doctrinal limitations should shield such regulations from challenge by prenatal personhood advocates.

As an initial matter, and even if prenatal life were a protected class, the fact that some state laws disparately harm prenatal life would be insufficient to support an equal protection challenge to these laws. In both race and gender equality cases, the Supreme Court has held that the fact that a law disparately affects a class of people does not mean that law is subject to heightened scrutiny under the Equal Protection Clause.⁵³Feeney, 442 U.S. at 274 (concluding that a law’s effects are generally insufficient to require heightened scrutiny under sex-based equal protection doctrine); Davis, 426 U.S. at 242 (concluding that a law’s disparate effects are generally insufficient to require strict scrutiny under race-based equal protection doctrine).

This is true even if a law exclusively harms members of a protected class. In Geduldig v. Aiello,⁵⁴Geduldig v. Aiello, 417 U.S. 484 (1974).

the Supreme Court concluded that pregnancy regulations do not classify based on sex even though, in the Court’s view, “only women can become pregnant.”⁵⁵Id. at 496–97, 496 n.20.

Even such wildly disproportionate effects were insufficient to state an equal protection claim. That roadblock—which the Court reaffirmed as recently as 2025⁵⁶United States v. Skrmetti, 145 S. Ct. 1816, 1833 (2025) (“[E]ven though only biological women can become pregnant, not every legislative classification concerning pregnancy is a sex-based classification.” (citing Geduldig, 417 U.S. at 496 n.20)).

—remains one of the primary reasons that women cannot challenge reproductive regulations on sex-based equal protection grounds.⁵⁷Portuondo, The Myth of Equal Protection, supra note 51 (manuscript at 19–20) (explaining how equal protection doctrine’s inattention to effects insulates harmful reproductive regulations from constitutional challenge).

It would be odd if reproductive regulations’ effects on women were not sufficient to state an equal protection claim, but the same law’s effects on prenatal life were.

While harms to prenatal life might be cognizable on equal protection grounds if they were motivated by a discriminatory purpose, personhood advocates are unlikely to be able to show such a purpose. It is true that lawmakers who permit abortion or fail to punish it as homicide are likely aware that these decisions will result in harms to prenatal life. But under existing equal protection law, just the awareness of negative consequences on a class of persons is insufficient to constitute a discriminatory purpose.⁵⁸Feeney, 442 U.S. at 279 (explaining that lawmakers’ “awareness of consequences” to a protected class is insufficient to demonstrate a discriminatory intent).

Instead, such a purpose exists only if lawmakers acted based on a specific desire to harm that particular class—in this case prenatal life.⁵⁹Id. (explaining that to prove a discriminatory purpose a plaintiff must show “that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group”).

It should be remarkably challenging to show that state laws permitting abortion satisfied this rule. Just as Dobbs insisted the “ ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus’ against women,”⁶⁰Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246 (2022) (quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 273–74 (1993)).

the goal of protecting the life and liberty of pregnant people by permitting abortion is unlikely to constitute animus against prenatal life. The same heightened purpose standard that prevents women from challenging reproductive regulations should, in short, prevent personhood advocates from doing the same.

Although personhood advocates may try to avoid these doctrinal difficulties by challenging only facially discriminatory laws, this strategy will leave many supportive reproductive policies in place. That is because most reproductive regulations likely count as facially neutral under existing equal protection law. A personhood-based challenge to Rhode Island’s Reproductive Privacy Act (“RPA”) illustrates this point.⁶¹Petition for Writ of Certiorari at 31, Doe ex rel. Doe v. McKee, No. 22-201 (Sep. 1, 2022), cert. denied, 143 S. Ct. 309 (2022), https://supremecourt.gov/DocketPDF/22/22-201/236882/20220901130349933_Petition%20Brief.pdf [perma.cc/4NQL-VTXZ].

The RPA, among other things, protects an individual’s right to abortion “prior to fetal viability.”⁶²23 R.I. Gen. Laws Ann. § 23-4.13-2 (West 2025) (providing that the state shall not, among other things, “[r]estrict an individual person from preventing, commencing, continuing, or terminating that individual’s pregnancy prior to fetal viability”).

Challengers argued that this provision violates the Equal Protection Clause because it “creates an unconstitutional classification[] of ‘persons’—viable and non-viable.”⁶³Petition for Writ of Certiorari, supra note 61, at 31.

But regulations that turn on viability do not facially discriminate against prenatal life as a class. This is illustrated by the fact that much prenatal life (namely, viable fetuses) remains protected under the RPA. It may seem unduly formalistic to argue that viability classifications are facially neutral because they protect some prenatal life. The Supreme Court, however, has relied on exactly this strained logic to conclude that pregnancy regulations are facially neutral.⁶⁴Geduldig v. Aiello, 417 U.S. 484, 496–97, 496 n.20 (1974).

In Geduldig, the Court reasoned that an employment benefit scheme that disfavored pregnancy was facially neutral because some women were included in the favored class of “nonpregnant persons.”⁶⁵Id.

In United States v. Skrmetti, the Court similarly reasoned that a ban on gender-affirming care did not classify based on transgender status because some hypothetical transgender people might still access the same drugs used in gender-affirming care to treat other medical conditions.⁶⁶United States v. Skrmetti, 145 S. Ct. 1816, 1833 (2025) (concluding that the gender-affirming care ban was facially neutral because it (1) divided people “into two groups: those who might seek puberty blockers or hormones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other conditions” and (2) some transgender people fell into the latter group).

Because state policies that facilitate some, but not all, abortions do not disfavor all prenatal life, they should likewise qualify as facially neutral.⁶⁷This includes some of the country’s most supportive abortion laws. See, e.g., Cal. Health & Safety Code § 123466 (West 2025) (“The state shall not deny or interfere with a woman’s or pregnant person’s right to choose or obtain an abortion prior to viability of the fetus . . . .”); N.Y. Pub. Health Law § 2599-bb (McKinney 2025) (limiting abortion after twenty-four weeks of pregnancy).

Even if personhood advocates can establish that some laws facially classify based on prenatal status, that does not make them automatically suspect under contemporary equal protection doctrine. It might seem, for example, that homicide laws violate anticlassification principles where they apply only to “born” persons⁶⁸See, e.g., N.Y. Penal Law § 125.05 (McKinney 2025) (“ ‘Person,’ when referring to the victim of a homicide, means a human being who has been born and is alive.”).

or exempt the killing of a “fetus” or “unborn child” resulting from a lawful abortion.⁶⁹See, e.g., 720 Ill. Comp. Stat. Ann. 5/9-1.2 (West 2025) (exempting from the state homicide law “acts which cause the death of an unborn child if those acts were committed during any [lawful] abortion . . . .”); Cal. Penal Code § 187 (West 2025) (defining murder as “the unlawful killing of a human being, or a fetus, with malice aforethought,” but exempting any “act that results in the death of a fetus” under the state’s Reproductive Privacy Act).

However, the Supreme Court often deems reproductive regulations nonsuspect even when they appear to single out a protected class in precisely this way. This is best illustrated by the Court’s conclusion that abortion regulations are subject to rational basis review,⁷⁰Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022).

even though they often expressly refer to and contemplate application to “women” and “female[s]” alone.⁷¹This includes the abortion regulation at issue in Dobbs. See Miss. Code Ann. § 41–41–191 (2025) (referring to “woman” or “women” five times). Texas’s primary abortion ban mentions “female[s]” ten times. Tex. Health & Safety Code § 170A.001–002 (West 2025).

This peculiar conclusion stems from a once-defunct,⁷²See Cary Franklin, The Anti-Stereotyping Principle in Constitutional Law, 85 N.Y.U. L. Rev. 83, 144–45 (2010) (arguing that while historically, “the Court granted lawmakers broad leeway to discriminate on the basis of ‘real’ differences,” the Court’s decision in United States v. Virginia, 518 U.S. 515 (1996), began to require meaningful scrutiny of all sex-based regulation).

but now ascendant, strain of sex equality doctrine. This gender-essentialist line of reasoning appears to exempt laws from traditional equality principles when judges believe they target “real” biological differences between men and women.⁷³Reva Siegel first termed this line of reasoning “physiological naturalism,” or reasoning from the body. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 268–72 (1992) (describing how the Court has repeatedly insulated reproductive regulations from sex-based equal protection scrutiny by treating them as “merely responses to the physical realities of reproduction”). Although such physiological naturalism has long been a feature of sex equality jurisprudence, Dobbs supercharged this reasoning. See Courtney Megan Cahill, Sex Equality’s Irreconcilable Differences, 132 Yale L.J. 1065, 1069–70 (2023) (“Dobbs said something that the Court has hinted at but never said explicitly: that laws based on characteristics unique to either sex are not sex classifications within the meaning of the Constitution.”); Kate Redburn, Skrmetti Beyond Scrutiny, 139 Harv. L. Rev. 167, 197 (2025) (emphasizing how Dobbs, along with United States v. Skrmetti, 145 S. Ct. 1816 (2025), may represent the Court’s “renewed appetite to ignore social facts about reproduction and gender dysphoria, and to expand Geduldig ’s classification errors to new contexts”).

In Skrmetti, the Court relied on this thread of sex equality doctrine to conclude that a gender-affirming care ban that expressly regulated based on a minor’s sex assigned at birth did not discriminate based on sex.⁷⁴United States v. Skrmetti, 145 S. Ct. 1816, 1829–30 (2025) (relying on the claim that “[s]ome medical treatments and procedures are uniquely bound up in sex” to conclude that the statute’s “mere use of sex-based language d[id] not sweep [the] statute within the reach of heightened scrutiny”).

This renewed—if normatively suspect⁷⁵See Siegel, supra note 73, at 272 (explaining that physiological naturalism obscures the fact that regulations of women’s bodies primarily reflect “social judgments about women’s roles—and only secondarily, if at all, facts about their bodies”); see also Cahill, supra note 73, at 1104 (arguing that regulations of “real[ ]differences” from meaningful scrutiny allows judges to “rationaliz[e] laws that perpetuate illegal judgments (or stereotypes) about men and women”); Clarke, supra note 45, at 76–83 (explaining how this line of reasoning threatens to “decimate constitutional sex discrimination law” by making it impossible to challenge most laws that discriminate on the basis of sex).

—limitation on sex equality law would seem to apply with equal force to laws regulating prenatal life. The “real” biological differences thread of sex equality doctrine has exempted reproductive regulations from constitutional scrutiny on the ground that they simply target the “objectively identifiable physical condition”⁷⁶Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974).

of pregnancy and related “medical procedure[s].”⁷⁷Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2245 (2022).

If the physiological uniqueness of pregnancy validates differential treatment of the pregnant people involved in a pregnancy, however, it would also seem to validate differential treatment of the prenatal life involved in pregnancy. While personhood advocates have argued it is unfair to treat prenatal life differently based simply on its lack of viability or location in another person’s uterus,⁷⁸P. xv (highlighting some in the personhood movement’s argument that abortion laws violated anticlassification principles “by categorizing the fetus based on residence in the womb”).

these features appear to be exactly the kind of “objectively identifiable physical condition[s]” that the state is permitted to attend to under real biological differences reasoning.⁷⁹Geduldig, 417 U.S. at 496 n.20.

To conclude otherwise would be to say that the physiological fact of ongoing pregnancy frees the state to disfavor pregnant people but not the prenatal life that is equally part of that physiological fact.⁸⁰In doing so, it would further vindicate feminist scholars’ claims that real biological differences reasoning is simply cover for enforcing gender stereotypes. See supra note 75 and accompanying text.

In sum, concrete doctrinal analysis reveals serious problems with virtually all personhood advocates’ claims about what constitutional personhood requires. The doctrinal limits that have made it possible for the Supreme Court to deny meaningful liberty protections to all vulnerable Americans should insulate supportive reproductive policies from constitutional liberty challenges. Moreover, the formalistic constitutional equality doctrine that insulates reproductive regulations from race and sex equality challenges should also insulate these regulations from prenatal equality challenges. In this way, specific doctrinal analysis can provide a mechanism to push back against prenatal personhood arguments when they arise in courts.

This is not to say that prenatal personhood arguments will necessarily fail in court. To the contrary, as explained below, judges may be willing to bend Fourteenth Amendment doctrine to protect prenatal life in ways that they have been unwilling to bend it to protect women and people of color. Nevertheless, concrete doctrinal analysis shows that any such success in courts will be in spite of, rather than because of, existing constitutional doctrine. Recognizing this point may—as the next Part explains—help counter personhood arguments outside of courts, too.

III. The Meaning of Personhood

The doctrinal weakness of constitutional personhood claims reveals that these claims have something in common: All personhood arguments are, fundamentally, arguments for constitutional change. No matter the precise policy outcomes they seek, personhood advocates do not seek equal application of existing constitutional principles of liberty and equality to a new class of persons. Rather, they seek a rights revolution of their own. The nature of this revolution, however, is yet undetermined. There is a way to revolutionize constitutional liberty and equality doctrine, for example, that would be egalitarian. It would provide meaningful rights to prenatal persons by expanding the rights of all vulnerable people, including women and people of color. There is another path to changing constitutional doctrine that would be profoundly inegalitarian. It would protect prenatal life by selectively expanding the rights of prenatal persons alone. Although Ziegler’s history shows that personhood advocates have had sometimes more and sometimes less egalitarian goals over time,⁸¹See supra Part I.

it also shows that contemporary personhood advocacy is most compatible with this latter, inegalitarian vision of our constitutional future. Understanding the unequal constitutional future that will likely, and already has begun to, result from this advocacy may help to resist this advocacy.

One way to reconcile the conflict between existing constitutional doctrine and the goal of expanding protections for prenatal life would be to expand the Fourteenth Amendment liberty and equality rights of all people. Under this egalitarian approach, prenatal personhood advocates might attempt to expand liberty protections by narrowing the state action doctrine across the board. They might urge that the Constitution obligates the state to provide affirmative protection to every person’s life and liberty. Prenatal personhood advocates might also try to loosen existing limitations on constitutional equality doctrine. They might urge that a law’s harmful effects on any protected class should be far more relevant to showing discrimination than they are now, that lawmakers’ bias or awareness of consequences are relevant to a discriminatory purpose analysis, or that purported biological difference is not a proper limitation on constitutional equality principles. These changes would make it easier for all vulnerable people to challenge laws on constitutional liberty and equality grounds.

Such an egalitarian approach to reforming constitutional liberty and equality doctrine would constrain the ways in which the state could protect prenatal life. A constitutional doctrine that affirmatively protected all people’s life and liberty, for example, might obligate the state to protect prenatal life from the harms of abortion. But it would, with equal force, require states to protect pregnant people from the life- and health-threatening consequences of pregnancy—perhaps even by facilitating abortion.⁸²The risk of death associated with giving birth is fourteen times higher than having an abortion. Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 216 (2012). This risk is likely even higher for Black women in America, who are three times more likely to die from pregnancy-related causes than white women. Working Together to Reduce Black Maternal Mortality, Ctrs. for Disease Control & Prevention (Apr. 8, 2024), https://cdc.gov/womens-health/features/maternal-mortality.html [perma.cc/F8K6-EJFW].

Similarly, a constitutional equality doctrine that better attended to laws’ effects, deployed a nuanced discriminatory purpose standard, or rejected biological essentialism might recognize that reproductive regulations implicate prenatal equality. But it would also recognize that these regulations implicate gender and race equality.⁸³Khiara M. Bridges, The Supreme Court, 2021 Term—Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 42–55 (2022) (highlighting the many ways that abortion bans undermine racial equality); Gemma Donofrio, Gender During Pregnancy, and Abortion as Gender Affirming Care, 111 Va. L. Rev. Online 38, 57–61 (2025) (describing how access to abortion is vital to the equality of transgender, nonbinary, genderqueer, and other gender diverse individuals); Portuondo, The Myth of Equal Protection, supra note 51 (manuscript at 19–27) (explaining how a Fourteenth Amendment doctrine that attended to a law’s subordinating effects, employed a more flexible discriminatory purpose rule, or had broader understanding of facial classifications would recognize that abortion regulations implicate the equality of women and people of color).

In other words, an egalitarian approach to expanding constitutional liberty and equality doctrine would not permit the state to single-mindedly protect prenatal life. It would require the state to regulate reproduction in ways that balanced the equally weighty—and constitutionally protected—interests of both prenatal life and pregnant persons.⁸⁴See Cary Franklin & Reva Siegel, Equality Emerges as a Ground for Abortion Rights in and After Dobbs, in Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion 22, 32 (Lee C. Bollinger & Geoffrey R. Stone eds., 2024) (noting that “there are many ways for states to nurture potential life and reduce the incidence of abortion that are not punitive and do not strip women and other pregnant people of agency[,]” including adopting evidence-based sex education programs, mandating insurance coverage of contraception, providing medical and housing support to pregnant people, strengthening pregnancy discrimination protections, and more).

While states might be able to strike this balance by focusing on supportive policies that both minimize abortion and maximize reproductive autonomy, they likely could not do so by simply banning abortion or otherwise punishing pregnant people.⁸⁵See id. at 25 (arguing that taking women’s equal citizenship seriously forbids states from punishing abortion without first adopting a broad range of supportive policies).

An alternative approach to protecting prenatal life would not constrain the state in this way. This approach would selectively expand constitutional liberty protections for prenatal life alone. Under this inegalitarian approach to constitutional change, personhood advocates might succeed in persuading courts that the state has greater obligations to protect prenatal life than to protect women, people of color, and pregnant people. They might, for example, persuade judges that fetuses are entitled to protection from private violence, while declining to advocate for such protections for other Americans. They might, alternatively, persuade judges that prenatal equality requires a less formalistic set of equality rules than those that govern in the race and gender equality context. This asymmetrical understanding of liberty and equality protections would allow the state to pursue punitive reproductive policies that impose significant racialized and gendered harms.⁸⁶See infra notes 96–102 and accompanying text.

It might, in fact, require states to adopt such harmful policies. Because only prenatal life would have meaningful liberty and equality protections in this constitutional future, such punitive policies would present no constitutional race or gender equality problem.

Although pursuing this kind of asymmetrical constitutional change would present doctrinal difficulties, there is precedent to support this approach. Indeed, the Supreme Court has taken precisely this asymmetrical—and doctrinally troubled—approach to modifying free exercise rights in recent years.⁸⁷See generally Portuondo, The Myth of Equal Protection, supra note 51 (manuscript at 28–36) (arguing that the Supreme Court has selectively loosened transsubstantive doctrinal barriers to successful constitutional equality claims for religious conservatives alone); Laura Portuondo, Gendered Liberty, 113 Geo. L.J. 707, 751–56 (2025) (arguing that the Supreme Court has selectively protected religious liberty at the expense of gender-related liberty).

In doing so, the Court has expanded constitutional protections for religious conservatives by selectively loosening transsubstantive barriers to constitutional liberty and equality claims. For example, despite the general rule that individuals are not entitled to the resources necessary to exercise their liberty rights,⁸⁸See supra notes 31–42 and accompanying text.

the Court has increasingly suggested that the Free Exercise Clause requires state support of religious exercise.⁸⁹Compare Harris v. McRae, 448 U.S. 297, 318 (1980) (concluding that the fact that people have a religious liberty right to send their children to a private religious school does not mean that the government “has an affirmative constitutional obligation to ensure that all persons have the financial resources to . . . send their children to private [religious] schools”), with Richard Schragger, Micah Schwartzman & Nelson Tebbe, Reestablishing Religion, 92 U. Chi. L. Rev. 199, 272–79 (2025) (describing how recent First Amendment doctrine is increasingly moving in the direction of demanding government funding of religious schools and other forms of religious exercise).

Furthermore, despite claiming to apply the same anticlassification principles to race, gender, and religious equality claims, the Court has lowered doctrinal barriers to religious equality claims alone.⁹⁰Portuondo, The Myth of Equal Protection, supra note 51 (manuscript at 28–36) (describing this selective loosening of constitutional equality doctrine).

These developments have led to significant doctrinal confusion and inconsistency,⁹¹Id. (highlighting the doctrinal inconsistencies between religious, race, and gender equality doctrine).

but they have permitted the Court to extend a broad vision of liberty and equality to religious conservatives that is not available to women and people of color.⁹²Id.

The Court could do the same for prenatal life.

While the goal of prenatal personhood is vague enough to permit either of the above approaches to constitutional change, contemporary personhood advocacy is most consistent with this latter, inegalitarian approach. As Ziegler documents, in the wake of Dobbs, many personhood advocates have pushed for policies that are incompatible with equal respect for the rights of pregnant persons (pp. 204–16). Though some personhood advocates have proposed policies that would support pregnant people, the support they propose has been limited⁹³See pp. 206–07 (noting that some personhood advocates have pushed for limited expansions to the social safety net such as expanding insurance coverage of pregnancy and offering payments to families in the first two years of a child’s life).

and is often channeled through religious organizations that offer little real help to pregnant people.⁹⁴Id. at 207 (noting that antiabortion groups often “assigned the job of helping pregnant Americans to private religious charities, crisis pregnancy centers, and maternity homes”); Mary Tuma, Crisis Pregnancy Centers: Money for Nothing, Aus. Chron. (July 19, 2018), https://austinchronicle.com/news/2018-07-20/crisis-pregnancy-centers-money-for-nothing [perma.cc​/S5TT-MFA5] (reporting that publicly funded crisis pregnancy centers spend most of their money on overhead and religious counseling, dedicating a pittance to material assistance for pregnant people).

Moreover, many advocates have called for punitive policies such as criminalizing abortion and other conduct related to pregnancy (p. 206). Indeed, members of a burgeoning abortion “abolitionist” movement urge that women should be guilty of homicide and even subject to the death penalty if they seek an abortion.⁹⁵Reva Siegel, It’s Alive! When the Original Meaning of “Person” Protected by the Fourteenth Amendment Is Not a Fixed, But Living Word, 59 U.C. Davis L. Rev. (forthcoming 2026) (manuscript at 32–34).

While other advocates urge that they do not wish to criminalize pregnant people themselves (pp. 210–11), criminalizing abortion providers imposes serious gendered⁹⁶This is best evidenced by the harrowing stories of pregnant women’s suffering and even death in states that criminalized the provision of abortion care post-Dobbs. See Robyn M. Powell, Disabling Abortion Bans, 58 U.C. Davis L. Rev. 1091, 1118–21 (2024) (explaining how, in the wake of Dobbs, state abortion bans have already “pose[d] grave dangers to people’s health and lives nationwide”).

and racialized⁹⁷Women of color have already been criminalized for pregnancy loss post-Dobbs, even in the absence of laws criminalizing self-induced abortion. See Jericka Duncan, Rachel Bailey & Hilary Cook, Brittany Watts, Ohio Woman Charged with Felony After Miscarriage at Home, Describes Shock of Her Arrest, CBS News (Oct. 21, 2024), https://cbsnews.com/news/brittany-watts-the-ohio-woman-charged-with-a-felony-after-a-miscarriage-talks-shock-of-her-arrest [perma.cc/F5KD-B5H5] (describing how a Black woman was arrested and charged with abuse of a corpse after suffering a miscarriage); see also Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, 75 Vand. L. Rev. 1649, 1663, 1704–09 (2022) (predicting that women of color will be disproportionately criminalized for pregnancy loss post-Dobbs because they are disproportionately likely to experience stillbirth and miscarriage and to be policed during pregnancy).

harms on pregnant people. This is illustrated by the fact that post-Dobbs abortion bans have resulted in women dying,⁹⁸See, e.g., Kavitha Surana, Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death Was Preventable., ProPublica (Sep. 16, 2024), https://propublica.org/article/georgia-abortion-ban-amber-thurman-death [perma.cc​/UN5C-2NJN] (describing the story of Amber Nicole Thurman, who died after being denied abortion-related care in Georgia post-Dobbs); Lizzie Presser & Kavitha Surana, A Third Woman Died Under Texas’ Abortion Ban. Doctors Are Avoiding D&Cs and Reaching for Riskier Miscarriage Treatments., ProPublica (Nov. 25, 2024), https://propublica.org/article/porsha-ngumezi-miscarriage-death-texas-abortion-ban [perma.cc/U7RQ-TF29] (telling the story of Porsha Ngumezi, who died after being denied proper abortion care in Texas).

receiving substandard medical care,⁹⁹See, e.g., Lizzie Presser, Andrea Suozzo, Sophie Chou & Kavitha Surana, Texas Banned Abortion. Then Sepsis Rates Soared., ProPublica (Feb. 20, 2025), https://propublica.org/article/texas-abortion-ban-sepsis-maternal-mortality-analysis [perma.cc/F5AR-CTSH] (describing how Texas’s abortion ban has led to a surge in the rates of sepsis, a life-threatening condition relating to pregnancy); The Plaintiffs and Their Stories: Zurawski v. State of Texas, Ctr. for Reprod. Rts. (Nov. 14, 2023), https://reproductiverights.org/zurawski-v-texas-plaintiffs-stories-remarks [perma.cc/T9X5-NEYZ] (describing how multiple women who were denied timely abortion care post-Dobbs suffered life-threatening complications and permanent injuries, such as loss of fertility).

and being arrested for pregnancy loss,¹⁰⁰Duncan et al., supra note 97 (describing how a woman was arrested for abuse of a corpse after she miscarried at home, an event that only occurred because she was denied abortion care by a hospital that feared it might violate Ohio’s abortion ban by treating her).

even though these laws do not formally criminalize pregnant people. Despite these harrowing stories, some personhood advocates have even sought to limit access to life- and health-saving abortions post-Dobbs.¹⁰¹P. 215 (describing personhood advocates’ challenge to the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide lifesaving emergency care to pregnant patients).

Such advocacy obviously values prenatal life over the life, health, and liberty of pregnant people.¹⁰²Reva B. Siegel & Mary Ziegler, Abortion’s New Criminalization—A History-and-Tradition Right to Healthcare Access After Dobbs, 111 Va. L. Rev. 413, 434 (2025) (noting that interpreting EMTALA to prioritize prenatal life over pregnant persons’ lives “creates a kind of fetal personhood that renders invisible the personhood of the pregnant patient”).

This kind of advocacy is thus inconsistent with a vision of the Constitution that protects all people equally.

Personhood advocates’ pursuit of reproductive regulations that fail to equally value the lives, liberty, and equality of pregnant people lends clearer meaning to their vague invocations of personhood. Although the concept of prenatal personhood is broad enough to accommodate a vision of the Constitution that requires protection of the basic rights of all people, contemporary personhood advocates cannot plausibly claim to be pursuing such a vision. Rather, they appear to be pursuing a constitutional future in which prenatal life enjoys greater rights than most Americans—especially pregnant ones. This asymmetrical vision of constitutional protection would not simply leave women and people of color with the same meager rights that they currently possess; it would limit their rights further by forbidding the state from enacting or enforcing numerous supportive reproductive policies that protect their lives, health, and liberty. In this way, the rights revolution that personhood advocates pursue is one that would further exclude women and people of color from the protection of the law.

Understanding the inegalitarian vision of constitutional change that contemporary personhood advocates seek does not only give specific meaning to the vague idea of prenatal personhood. It may also help to build opposition to the prenatal personhood movement. As Ziegler demonstrates, vagueness about what prenatal personhood requires has helped to strengthen this movement.¹⁰³See supra Part I.

It has allowed antiabortion advocates to, among other things, obscure the gender-traditionalist views of many in their movement, recast their advocacy as compatible with women’s equal citizenship, and dodge tough questions about the more extreme goals of some within their movement.¹⁰⁴See supra Part I.

Demanding precision as to the kind of constitutional change that personhood advocates seek would make this political maneuvering more challenging. While the abstract idea of personhood may be slippery, concrete doctrinal analysis coupled with an examination of post-Dobbs personhood advocacy reveals what prenatal personhood means in practice: devaluation of the liberty and equality of other vulnerable Americans. Emphasizing this point may help build political resistance from those who seek a more egalitarian constitutional future.

Conclusion

In a post-Dobbs world, it is more important than ever to understand what personhood really means. Professor Ziegler’s history provides an essential tool to do just that. Personhood does not accomplish this task by offering any one definition of personhood. It does so by showing that personhood has had many different meanings over time. Personhood has never been a single policy proposal but rather a vague ideal that has united the antiabortion movement and assisted it in law and in politics. By illuminating this point, Personhood provides a new way to resist this movement in both law and politics. It suggests that specificity about the actual requirements of constitutional liberty and equality doctrines can help to contest a broad range of claims about what personhood requires. More importantly, it may help to contest the unequal vision of constitutional change that many of these claims advance.

Ultimately, vagueness about what personhood means becomes less sustainable every day. In the wake of Dobbs, and in light of increasingly desiccated constitutional protections for pregnant people generally, fewer obstacles stand in the path of the personhood movement than ever before. Faced with this unprecedented opportunity for legal change, personhood advocates must translate what has long been a helpfully vague ideal of prenatal personhood into concrete policy proposals. So far, advocates have focused on pushing policies that evince limited respect for the personhood rights of pregnant Americans. Personhood shows us that this result is not some inexorable command of the Constitution. It represents a particular vision of constitutional change that can be challenged.

* Assistant Professor, University of Houston Law Center. For helpful comments and conversation about the ideas in this Book Review, I thank Jamal Greene, Leah Fowler, Reva Siegel, and Anthony Sampson. I also thank Romina Castañeda for excellent research assistance.