Earlier this month, Jonathan Mitchell, the former Texas solicitor general and the architect of S.B. 8, Texas’s six-week abortion ban, filed what seems like a long-shot lawsuit. Mitchell is representing a Texas man in a wrongful-death suit against two of his ex-wife’s friends and the person who provided them with an abortion pill.
This suit may never go anywhere, even in a state as hostile to abortion as Texas. State law requires that a death be “wrongful,” but the abortion in this case took place before Texas’ trigger ban took effect. Mitchell and his colleagues are relying on a pre-Roe criminal ban to try the case, and its legal status remains contested. As important, Texas law makes clear that pregnant people themselves can’t be sued or prosecuted for having abortions, so it’s not clear that aiding a woman in doing so would be considered wrongful either.
So why, when there are lots of criminal laws on abortion in Texas, would someone like Mitchell bother with this suit? It will certainly serve to intimidate anyone considering helping a friend with abortion, or isolate anybody seeking one. But Mitchell has broader ambitions, and they have everything to do with the idea of fetal personhood.
Since the 1960s, the anti-abortion movement has embraced the idea that a fetus holds constitutional rights from the moment of fertilization. But although most conservative states ban abortion, almost none fully treat the fetus as a rights-holding person. And there is no obvious path for getting national recognition for personhood; a bill on it would not likely get through Congress, even if Republicans gain control of the Senate and the White House. (In their own 2023 messaging bills on abortion, House Republicans weren’t willing to endorse any ban, much less one that applies throughout pregnancy.)
Even the Supreme Court doesn’t seem ready to sign off on personhood—when an anti-abortion group in Rhode Island asked the conservative supermajority to take on the issue recently, the justices turned down the request. Justice Brett Kavanaugh, a likely key vote in any personhood case, wrote less than a year ago that the “Constitution is neither pro-choice or pro-life.” In overturning Roe v. Wade, meanwhile, Kavanaugh and the other conservatives stressed what they described as a surge in support for ending abortion rights in conservative states. At the moment, there is no comparable trend in red states when it comes to personhood. Further, finding fetal protections in the Constitution this quickly after proclaiming the neutrality of the Constitution might be too much even for Kavanaugh.
Suits like Mitchell’s, however, seek to start a personhood trend for Kavanaugh and the court’s conservative supermajority to seize on. Proponents of fetal personhood insist that the law (and the Constitution) requires a fetus to be accorded the same rights as any other person. That makes it important for lawyers like Mitchell not just to persuade states to criminalize abortion but also to prove that the fetus should be treated the same as other “persons” in the law. This can come in the form of wrongful-death suits, or even prosecutions establishing, as Mitchell writes, that any “person who assists a pregnant woman in obtaining a self-managed abortion has committed the crime of murder.”
But how can abortion opponents operationalize the idea of fetal personhood? Mitchell’s suit offers one answer: expanding the authority of men. Marcus Silva, the plaintiff in this suit, complains that his ex-wife concealed her “pregnancy from her husband and decided to kill the unborn child without [his] knowledge or consent.” He seeks to punish those who helped her in acquiring abortion medication and, by proxy, also punish his ex-wife.
This strategy has deep roots in anti-abortion activism. As early as the 1970s, abortion opponents championed laws requiring any pregnant woman to get her husband’s consent. When the Supreme Court struck down one such law in 1976, leading anti-abortion attorneys pivoted, taking the cases of unmarried men trying to stop their partners from having abortions one case at a time. They argued that at least some men had better reasons for seeking fatherhood than women did for ending pregnancies. Lawyers demonized women who ended pregnancies for what they described as frivolous reasons, such as the desire “to look nice in a bathing suit over the summer.” At other times, anti-abortion attorneys argued that any married man had a right to stop abortion—a right to “care, custody, control, and management” of a child “inherent in his status as a husband in the family unit.” Activists from across the country sought advice on how to bring similar suits on men’s behalf—and did so even after the strategy failed at the Supreme Court.
Fetal personhood has long remained the end goal of the anti-abortion movement. There is no surprise that Mitchell is pursuing it, but it’s easy to forget that a mere punitive understanding of fetal protection is far from the only possible outcome of these efforts. In Mitchell’s home state of Texas, a pregnant woman argued that it entitled her to drive in the HOV lane; perhaps, if a fetus is a rights-holding person, pregnant people are entitled to financial support before and during birth.
Mitchell’s suit advances a particularly chilling vision: Personhood is primarily about incarcerating anyone who helps someone have an abortion, shaming those who end pregnancies, and vindicating the prerogatives of men who oppose it.
This is reminiscent of the arguments made by self-proclaimed anti-abortion abolitionists, who argue that true equal treatment for the fetus requires punishing people who have abortions. This faction may not yet be a majority of the anti-abortion movement, but it is incredibly vocal about its intents—in South Carolina, a bill that could subject women to the death penalty initially won the sponsorship of more than 20 lawmakers.
Whether or not the abolitionists take over the movement, Mitchell has his eyes on the Supreme Court. He is well aware that the court’s conservative majority will not revisit the idea that abortion itself is unconstitutional unless there is a groundswell of support in conservative states for fetal personhood. If this suit goes his way, that groundswell has already begun.
