“The people”/personhood paradox

In 2022, the Supreme Court revoked the long-held recognition of a fundamental right to privacy that permitted women, in consultation with their doctors, to terminate a pre-viability pregnancy. When the court’s newly empowered conservative majority invalidated the right to abortion in Dobbs v. Jackson Women’s Health Organization, it did so on the basis that such a decision was required to remedy the divisive, untenable, and undemocratic results of Roe v. Wade. 

Concluding that the earlier legal standards failed to advance “evenhanded, predictable, and consistent development of legal principles,” the court reasoned that the only available recourse was to entirely do away with federal constitutional protections for abortion care. Justice Samuel Alito, writing for the court, justified the wholesale elimination of constitutional protections for abortion access by proclaiming that the issue was best decided by “the people” and their elected officials. 

Two years after the Dobbs decision, the court now prepares to decide another landmark abortion case made possible precisely because of the unworkable legal landscape created by the overruling of Roe.  As the court considers the fate of abortion medication in FDA v. Alliance for Hippocratic Medicine, it has become clear which “people” the court seeks to delegate power to determine the precious contours of reproductive health rights. 

In place of governance “of the people, by the people, for the people,” the Supreme Court’s reconstituted constitutional jurisprudence has rendered voiceless those most affected by the dually dangerous loss of legal rights and medical care. Neither doctors, nor patients, nor voters, nor scientists, nor experienced federal regulators will determine the fate of reproductive and maternal healthcare in this country. 

The “people,” as the post-Dobbs landscape has shown us, is mostly comprised of conservative state judges and legislators who subscribe to a concept of “fetal personhood” in which non-viable fetuses are assigned greater social value and legal rights than the women whose bodies carry them. It is the undemocratic principles embedded in “the people”/personhood paradox that has empowered virtually all male state legislatures in the Southeast to enact the country’s most severe anti-abortion measures in seeking to advance broader fetal personhood policy ambitions.  

While dismantling legal protections for women previously deemed implicit to the 14th Amendment, the court has simultaneously validated a new approach to constitutional interpretation that could ultimately lead to assigning fetuses and frozen embryos the same rights as persons.

But “the people,” as represented by a majority of Americans across all demographics and all regions, do not share the court’s zeal for limiting critical health care to women or returning to an era where nearly half of the citizenry lacked the most fundamental agency over their own bodies and livelihoods. Of the statewide ballot measures proposed since the fall of Roe to curtail abortion access, all have faced resounding defeat. 

Yet, despite overwhelming public support for access to safe and legal abortion care, reproductive justice policies have not been determined through a fair, equitable, or democratic process. Gerrymandered electoral maps (sanctioned and supported by the court), combined with activist state courts and unrepresentative legislators (the product of those same gerrymandered electoral maps), have effectively coopted the political process, all but ensuring that “the people” have little say in the laws and policies that govern their lives, families, and well-being.  

It is a result of “the people”/personhood paradox that doctors are unable to administer life-saving medical care to women with ectopic pregnancies or whose fetuses have deadly fetal anomalies.  Because of this perverse paradox, prosecutors in Ohio were able to charge Brittany Watts, who miscarried at 21 weeks and five days, with abuse of a corpse, a fifth degree felony punishable by a year in prison. The Alabama Supreme Court’s recent decision redefining personhood to encompass legal protections for extrauterine embryos is also a product of “the people”/personhood paradox.

This skewed legal logic – and the absurdly tragic consequences that flow from it – only exists within the warped confines of this newly emerging paradox.  In this Orwellian existence, pre-viability fetuses and extrauterine embryos are afforded greater constitutional protections than voters with fully formed brains.  Women who are denied basic medical care are imprisoned for miscarriages. Fetuses are people, and women are not. In foreshadowing the future of constitutional rights, it now appears that the fallacy of Dobbs has reached full term. 

Erin M. Carr is an assistant professor of law at Seattle University School of Law.