The rise of Fetal Personhood amendments

How Roe v. Wade jump-started the Fetal Personhood movement, and the flood of personhood amendments that followed

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🟢 In the first post of this series, What is 'Fetal Personhood'?, we learned about the ideology known as Fetal Personhood: its central presumptions and theses, and its underlying beliefs.

🟢 In the second post of this series, Fetal Personhood before Roe v. Wade, examined the demographic characteristics of the 1960’s anti-reproductive-rights movement’s adherents and their cooptation of Civil Rights rhetoric, and we surveyed the birth of the Fetal Personhood movement in its infancy.

🟢 In this post, we will delve into the surprising way that just two short paragraphs found in the Roe v. Wade decision electrified the Fetal Personhood movement. We will also take a walk through history, discussing the flood of proposed amendments aimed at codifying Fetal Personhood in the U.S. Constitution. Through this exploration, we will gain greater insight into the tactics, motivations, and goals of the proponents of Fetal Personhood.

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Fetal Personhood goes to court

In the 1973 Supreme Court case, Roe v. Wade, Texas argued that fertilized eggs, embryos, and fetuses are legal “persons” under Section I of the Fourteenth Amendment. The Supreme Court, however, rejected that claim. 

In its decision, released on January 22, 1973, the Supreme Court pointed out that, in instances of the word “person” in the U.S. Constitution, “the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.”¹ The Court concluded, “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”²

Although the Supreme Court rejected the idea that fertilized eggs, embryos, and fetuses are legal persons under the Fourteenth Amendment, two paragraphs in the Roe v. Wade decision, according to anti-abortion activists, “set[] the table for” establishing Fetal Personhood in the future.³

Pointing out the faulty rationale in Texas’s arguments, the Court wrote “that Texas' argument that a fetus is entitled to protection under the 14th Amendment is fallible in that the state did allow abortions when there is danger to the life of the mother”⁴ and because Texas’s law did not treat pregnant people who have abortions as murderers.⁵

The following two paragraphs electrified and jump-started the movement for Fetal Personhood.

When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?

There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n 49, supra, that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?

The Roe decision prompted the movement against sexual and reproductive health and rights “to nationalize and intensify its discussion of strategy. Movement leaders prioritized a constitutional amendment designed to” enshrine Fetal Personhood.⁶

Fetal Personhood goes to Congress 

Inspired by the two above paragraphs of the Roe v. Wade decision, anti-abortion activists began a decades-long push to enact a Fetal Personhood amendment to the U.S. Constitution. Because the Supreme Court rejected the claim that the word “person” in the Fourteenth Amendment includes fertilized eggs, embryos, and fetuses, anti-abortion activists sought to undo Roe v. Wade by enshrining Fetal Personhood in the U.S. Constitution, believing that if a fertilized egg was a Constitutionally-protected, legal person, then all abortions would be illegal by default. 

“The main task of a [Fetal Personhood] amendment is to reverse the Supreme Court's basic error in holding that the unborn child is not a person,” Charles Rice, a Catholic scholar and staunch advocate for Fetal Personhood, later wrote in his book No Exception: A Pro-Life Imperative.⁷ “It is likely, from those statements of the Court” in the Roe v. Wade decision, that an amendment establishing legal “personhood to the unborn child, without exception, would oblige the states to forbid all abortions even those claimed necessary to save the life of the mother,” he glowingly explained (emphasis mine).⁸

Establishing Fetal Personhood in order to ban abortions nationwide, in every conceivable circumstance, became - and remains - the Holy Grail of the anti-abortion movement, though a few early amendment proposals made a concession to prevent the death of the pregnant person. 

A plethora of Fetal Personhood amendments were introduced in Congress following the Roe v. Wade decision on January 22,1973. These Fetal Personhood amendments were referred to as Human Life Amendments.

🟢 The Hogan Amendment, 1973

The Hogan Amendment, introduced on on January 30, 1973, and sponsored by Rep. Lawrence Hogan, “extended due process and equal protection guarantees ‘from the moment of conception.’”⁹

The Hogan Amendment, 1973

SECTION 1. Neither the United States nor any State shall deprive any human being, from the moment of conception [fertilization], of life without due process of law; nor deny to any human being, from the moment of conception, within its jurisdiction, the equal protection of the laws.

SECTION 2. Neither the United States nor any State shall deprive any human being of life on account of illness, age, or incapacity.

SECTION 3. Congress and the several States shall have the power to enforce this article by appropriate legislation.

🟢 The Buckley Amendment, 1973

The Buckley Amendment, introduced on May 31, 1973, and sponsored by Sen. James L. Buckley, “clarified that the word ‘person’ included in the Fourteenth Amendment included fetal life.”¹⁰

The Buckley Amendment, 1973

SECTION 1. With respect to the right to life, the word ‘person’, as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.

SECTION 2. This article shall not apply in an emergency when a reasonable medical certainty exists that continuation of the pregnancy will cause the death of the mother.

SECTION 3. Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions.

The movement against sexual and reproductive health and rights “saw something wrong with each of these proposals… [T]he Buckley and Hogan Amendments seemed only to reach the actions of state actors. Dissatisfied by the existing options, movement members began offering ideas of their own, including model laws that could apply once a constitutional amendment had been ratified.”¹¹

The embrace “of punishing women came into view when movement leaders began developing what they saw as a more ideal constitutional proposal.”¹² “By July 1973, movement attorneys began proposing their own amendments.”¹³

Joseph Witherspoon served as Consultant to Public Policy Committee at the National Right to Life Committee (NRLC), the nation's oldest anti-abortion group. He was also a law professor at the University of Texas. Witherspoon “worried that both the Hogan and Buckley Amendments prohibited only state action, doing nothing to ‘operate upon the private action of physicians in performing or of parents in seeking abortions.’”¹⁴ “His focus on the actions of private citizens, rather than agents of the state, reflected the movement’s broader purpose. Maximizing protection for the unborn mattered most to Witherspoon, and he did not foreclose the possibility of prosecuting anyone who performed an abortion, including women who tried to terminate their own pregnancies.”¹⁵

Therefore, on August 14, 1973, Witherspoon advised the NRLC to work toward amending the Buckley Amendment to included the following language:

No abortion shall be performed by any person except under and in conformance with law permitting an abortion to be performed only in an emergency when a reasonable medical certainty exists that continuation of the pregnancy will cause the death of the mother.¹⁶ 

Nellie Gray, a prominent movement member who founded March for Life and who served on the NRLC board of directors, “also favored an amendment that reached state action, further recommending a registry that would require all women to get a certificate that they had given birth, miscarried, or had an abortion.”¹⁷ “This requirement would make it easier to smoke out abortions and, in Gray’s words, ensure that ‘society would protect the unborn child just as it is beginning to protect the battered child.’”¹⁸

In the meantime, new Fetal Personhood amendments continued to be introduced in Congress. 

🟢 The Burke Amendment, 1973

The Burke Amendment, introduced on September 12, 1973, and sponsored by Rep. James A. Burke, classified “unborn offspring” as legal persons under the Fifth and the Fourteenth Amendments to the U.S. Constitution. In addition, the Burke Amendment imposed a new regulation on the practice of emergency medicine, prohibiting certain abortion procedures proven safer for the pregnant patient, in favor of more risky procedures for the benefit of the “unborn.” Thus, the prioritization of the welfare of the embryo/fetus over the health and bodily integrity of the pregnant person was codified in the amendment. 

The Burke Amendment, 1973

SECTION 1. With respect to the right to life, the word ‘person,’ as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.

SECTION 2. No abortion shall be performed by any person except under and in conformance with law permitting an abortion to be performed only in an emergency when a reasonable medical certainty exists that continuation of pregnancy will cause the death of the mother and requiring that person to make every reasonable effort, in keeping with good medical practice, to preserve the life of her unborn offspring.

SECTION 3. Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions.

🟢 The Roncallo Amendment, 1974

The Roncallo Amendment, introduced on May 30, 1974, snd sponsored by Rep. Angelo D. Roncallo, took a somewhat different approach. The amendment prohibited all abortions nationwide, without exception. It also codified what was, at that time, a predominantly Roman Catholic view that life begins at fertilization; as the Supreme Court noted in its decision in Roe v. Wade, “There has always been strong support for the view that life does not begin until live' birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community”; and that “the common law found greater significance in quickening” than in fertilization.¹⁹ 

The Roncallo Amendment, 1974

SECTION 1. Abortion is hereby prohibited within the United States and all territory subject to the jurisdiction thereof. As used in this article, abortion means the intentional destruction of unborn human life, which life begins at the moment of fertilization.

SECTION 2. Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

“By the fall of 1974, leading [anti-abortion] lawyers worked to reach a consensus about the contours of an ideal amendment. The lawyers proposed a constitutional amendment that reached private actors and a model statute making it a crime for a person to use ‘any instrument, medicine, or other drug or other substance whatever, with the intent to procure a miscarriage on any woman.’ The model statute also made it a crime to perform, aid or abet, or conspire with another to perform an abortion.’”²⁰

While the movement lawyers did not explicitly spell out exactly who would be punished under the proposed statute, a press release made it clear.²¹ In the press release, NRLC said that their proposal would “protect the lives of unborn children not only against action of the state and federal governments but also against the action of private individuals, such as pregnant women and physicians.”²²

🟢 The Helms Amendment, 1975

The Helms Amendment, introduced on January 17, 1975, and sponsored by Sen. Jesse Helms, sought to establish Fetal Personhood for fertilized eggs, embryos, and fetuses.

The Helms Amendment, 1975

SECTION 1. With respect to the right to life guaranteed in this Constitution, every human being, subject to the jurisdiction of the United States, or of any State, shall be deemed, from the moment of fertilization, to be a person and entitled to the right to life.

SECTION 2. Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

🟢 The NRLC Amendment, 1975

The National Right to Life Committee Amendment, introduced on January 23, 1975, and sponsored by Sen. James L. Buckley - who, in 1973, had introduced the Buckley Amendment - echoed the 1973 Buckley Amendment. In addition, it incorporated the language suggested by Joseph Witherspoon, in 1973, so that criminal prohibitions would “operate upon the private action of physicians in performing or of parents in seeking abortions.”²³

The NRLC Amendment, 1975

SECTION 1. With respect to the right to life, the word person as used in this article and in this article and in the fifth and fourteenth Articles of Amendment to the Constitution of the United States applies to all human beings irrespective of age, health, function or condition of dependency, including their unborn offspring at every stage of their biological development.

SECTION 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.

SECTION 3. The Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions.

🟢 The Paramount Amendment, 1979

The Paramount Amendment, introduced on April 5, 1979, and sponsored by Rep. Romano L. Mazzoli, sought to codify legal personhood for fertilized eggs, embryos, and fetuses. 

The Paramount Amendment, 1979

“The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health, or condition of dependency.”

“By the 1980s, anti-abortion groups overwhelmingly insisted that the best and perhaps only way to get justice for” fertilized eggs, embryos, and fetuses “was to punish those who wronged them — and deter doctors from performing abortions in first place — with lawsuits and criminal penalties. Those who had once compared” fertilized eggs, embryos, and fetuses “to those at the nation’s margins now redefined [them] as the ultimate victim of violent crime.”²⁴

🟢 The NRLC Unity Amendment, 1981

The NRLC Unity Amendment, introduced on December 16, 1981, and sponsored by Sen. Jesse Helms - who sponsored the Helms Amendment in 1975. This amendment brought together portions of prior Fetal Personhood amendments. It also introduced a new element of the anti-reproductive-rights position: the affirmative defense. An affirmative defense allows a defendant charged with a crime to admit to committing that crime, but present a defense to, hopefully, prove that they shouldn't be held liable for committing the crime because of extenuating circumstances. The defendant arguing an affirmative defense is presumed guilty and has the burden of proof on establishing that the affirmative defense applies to the circumstances of their crime.

The NRLC Unity Amendment would designate fertilized eggs, embryos, and fetuses as legal persons, and it would enable the punishment of both doctors and pregnant people who obtain abortion care or self-manage their own abortions. 

The amendment would prohibit all abortions nationwide, without exception - not even to preserve the life of the pregnant person. It would, however, allow states, who wish to do so, to enact a law that would permit a doctor - being prosecuted for performing an abortion - to invoke an affirmative defense in court. If successful at trial, the affirmative defense could be found by a jury to have justifiably broken the law.— However, the doctor would have to prove, against the testimony of likely anti-abortexpe "experts,” that it was absolutely necessary for the doctor to perform the abortion (1) “to prevent the death of either the pregnant woman or her unborn offspring,” and (2) made “every reasonable effort be made to preserve the life of” both the pregnant person and the “unborn offspring.” Thus, like the 1973 Burke Amendment, The NRLC Unity is would impose a new regulation on the practice of emergency medicine, prohibiting certain abortion procedures proven safer for the pregnant patient, in favor of more risky procedures for the benefit of the “unborn.” Under the NRLC Unity Amendment, states are not required to even offer an affirmative defense.

The NRLC Unity Amendment, 1981

SECTION 1. The right to life is the paramount and most fundamental right of a person.

SECTION 2. With respect to the right to life guaranteed to persons by the fifth and fourteenth articles of amendment to the Constitution, the word `person' applies to all human beings, irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development including fertilization.

SECTION 3. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law allowing justification to be shown for only those medical procedures required to prevent the death of either the pregnant woman or her unborn offspring, as long as such law requires every reasonable effort be made to preserve the life of each.

SECTION 4. Congress and the several States shall have the power to enforce this article by appropriate legislation.

While explicit calls for punishing pregnant people were rare, with their proposed amendments the Fetal Personhood Movement was embracing the criminalization of pregnant people. But, as we will see in the next post, “Fetal personhood, as manifested through pregnancy criminalization, is not about protecting fetuses from harm. It is about controlling and punishing pregnant people, particularly women who do not conform to racialized ideals of motherhood.”²⁵

None of the above amendments gained any traction in Congress.²⁶

By 1983, anti-abortion activists largely “had to give up on a constitutional amendment.”²⁷ But abandoning this constitutional campaign was a matter of pragmatism - not ideology. The movement still wholeheartedly supported Fetal Personhood as the ultimate goal. 

Instead of seeking an amendment, pragmatists “sought to play up model laws and arguments that appealed to a broad audience.”²⁸ We will explore this in the next post, continuing through the history of the Fetal Personhood Movement. 

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1. Blackman , H. (n.d.). Roe v. Wade, 410 U.S. 113 (1973). Justia Law. https://supreme.justia.com/cases/federal/us/410/113/

2. Mohapatra, S. (2023, July 26). An era of rights retractions: Dobbs as a case in point. ABA . https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-end-of-the-rule-of-law/era-of-rights-retractions-dobbs-as-a-case-in-point/

3. Clemons, D. (2012, January 31). Personhood movement comes to Alabama. Journal. https://times-journal.com/news/article_10480dca-493a-11e1-8fe7-001871e3ce6c.html

4. Clemons, D. (2012, January 31). Personhood movement comes to Alabama. Journal. https://times-journal.com/news/article_10480dca-493a-11e1-8fe7-001871e3ce6c.html

5. Blackman , H. (n.d.). Roe v. Wade, 410 U.S. 113 (1973). Justia Law. https://supreme.justia.com/cases/federal/us/410/113/

6. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 741). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

7. Rice, C. E. (1991). No exception: A pro-life imperative (p. 92). Tyholland Press.

8. Rice, C. E. (1991). No exception: A pro-life imperative (p. 92). Tyholland Press.

9. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 748). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

10. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 748). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

11. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 748). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

12. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 748). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

13. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 748). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

14. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 748-749). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

15. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 749). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

16. Memorandum from Joseph P. Witherspoon, Consultant, Pub. Pol’y Comm., NRLC, to Exec. Comm., NRLC 5 (Aug. 14, 1973) (on file at American Citizens Concerned for Life Records, Box 4, Gerald Ford Presidential Library.

17. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 749). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

18. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 749). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

19. Blackman , H. (n.d.). Roe v. Wade, 410 U.S. 113 (1973). Justia Law. https://supreme.justia.com/cases/federal/us/410/113/

20. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 749). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

21. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 750). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

22. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 750). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

23. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 749). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

24. Ziegler, M. (2024, March 24). The endgame in the battle over abortion - politico. Politico. https://www.politico.com/news/magazine/2024/03/24/personhood-abortion-legal-fight-00147138

25. Pregnancy as a crime: A preliminary report on the first year after Dobbs (p. 5). Pregnancy Justice. (2024, September 24). https://www.pregnancyjusticeus.org/resources/pregnancy-as-a-crime-a-preliminary-report-on-the-first-year-after-dobbs/

26. Ziegler, M. (2018). Some form of punishment: Penalizing women for abortion (p. 750). William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj/vol26/iss3/6/

27. Ziegler , M. (2021). Abortion and the law of innocence (p. 893). Illinois Law Review. https://www.illinoislawreview.org/wp-content/uploads/2021/08/Ziegler.pdf

28. Ziegler , M. (2021). Abortion and the law of innocence (p. 893). Illinois Law Review. https://www.illinoislawreview.org/wp-content/uploads/2021/08/Ziegler.pdf