In January 2023, 24 Republican legislators in the US state of South Carolina sponsored the South Carolina Equal Protection Act of 2023, a bill designed to extend constitutional rights to embryos and fetuses at all stages of development, granting them equality with women already born.1 The bill makes women and pregnant people who undergo abortion subject to the state’s homicide laws and punishments, including the death penalty. It allows exceptions if they face “imminent death or great bodily injury,” as well as to save the life of the mother, but not for rape or incest.
The anti-abortion movement celebrated a huge victory last summer when the US Supreme Court overturned Roe v Wade. With the ruling for Dobbs v Jackson Women’s Health Organization, the court threw abortion policy back to the judgment of individual states, making access to abortion care contingent on where one lives. Since then, 14 states have criminalised abortion.2 South Carolina legislators attempted to ban the procedure after six weeks of pregnancy, but the state supreme court ruled that effort unconstitutional in January. The Equal Protection Act is one of several legislative efforts to ban the procedure again.
Nine of the 24 legislators who originally sponsored the bill have since withdrawn their support, stating that their pro-life position does not include punishing women.3 South Carolina’s Republican speaker of the House and Senate majority leader have made clear that the bill will not move forward for this reason.3
Some 62% of Americans believe abortion should be legal,4 putting strategists, activists, and legislators seeking to ban the procedure in the difficult position of having the majority of Americans disagree with them. Consequently, one of the movement’s central goals is to change the public’s mind about abortion.5 Bills like the South Carolina one, which threaten to subject women who have abortions to the death penalty, undermine this effort.
This bill departs from previous laws criminalising abortion in the United States because it targets women who have abortions rather than providers. Yet it also continues anti-abortion efforts, begun in the 1960s, to secure fetal personhood.6 Constitutional rights are currently applied to people already born, but advocates of fetal personhood seek to extend these rights to the womb at all stages of pregnancy. If this were to happen, then abortion would be outlawed.
For over a century, anti-abortion activists have described fetuses as people. Boston physician Horatio Robinson Storer established the US’s first anti-abortion movement in 1857 with the goal of criminalising abortion in the state of Massachusetts. Storer led the fight to criminalise abortion from within the American Medical Association (AMA), which condemned the practice in 1859. The AMA sought to consolidate the professional legitimacy of physicians and used anti-abortion activism as part of its efforts to distinguish its members from midwives and other healers. Storer referred to fetuses as children, cast abortion as murder, and painted women who underwent the procedure as butchers in need of strong patriarchal guidance. He also claimed that abortion harmed women. Even now, these ideas remain the bedrock of anti-abortion activism in America.
In the 1860s, vice crusader Anthony Comstock began his nationwide campaign to abolish prostitution, birth control, and abortion. In 1873, he successfully persuaded Congress to pass the Comstock Act, making it illegal to send information about contraception and abortion through the mail.7 Those who violated the law could be subject to five years in jail and up to $2000 in fines.
Recently, Texas activists resurrected the Comstock Act.8 Medical abortions now account for more than half of all abortions in America, with their use rising in response to the Dobbs ruling. Seeking to restrict medical abortions and challenge a Department of Justice memo that allows abortion medication to be mailed for lawful purposes,9 anti-abortion attorneys have charged that the distribution of abortion pills through the mail violates the 19th century law.
By 1900, every US state had criminalised abortion with statutes that targeted providers and allowed for therapeutic exceptions. Women were rarely charged with having abortions, although they were publicly shamed when caught breaking the law. Their names were included in police blotters, which were often published daily by local papers.
In 1959, the American Law Institute endorsed a plan to liberalise abortion policy across the country by expanding women’s access to therapeutic abortion. In 1967, California legislators introduced a bill that extended the health grounds under which abortion was permitted to include mental wellbeing. Anti-abortion activists and politicians—mostly white, Catholic, and male—rallied to fend off the proposed legislation. They failed. California and nine other states liberalised their abortion laws by 1970—the same year Hawaii and New York legalised abortion.
Abortion opponents persevered by changing their arguments. Swapping Catholic doctrine for the 14th Amendment, activists insisted that citizenship rights began at conception, not birth, and as such, abortion should be illegal. This switch opened the movement to evangelicals. Texas argued for fetal personhood in Roe v Wade,10 but Justice Henry Blackmun rejected it. “The word ‘person,’ as used in the 14th Amendment, does not include the unborn,” he determined.
Undeterred by the Roe v Wade judgment, anti-abortion activists cast themselves as civil rights activists for the “unborn.” As they moved the fetus to the centre of their campaigns—through rhetoric, photography, fetal models, pins, and jewellery—they pushed women to the margins.11
But abortion is about women, and by the 1980s, the anti-abortion movement returned to Storer’s claim that abortion harms women. They reinterpreted post-traumatic stress disorder, which had entered American culture through Vietnam veterans, to create the condition of post-abortion syndrome. Post-abortion syndrome situates women as victims of abortion.12 It writes them back into the story, but only in one dimension. Notably, the AMA and the American Psychiatric Association reject this diagnosis.
21st century anti-abortion activists continue to cast themselves as advocates for pregnant women and the fetuses they carry. Calling for women who undergo abortion to be charged with homicide and subject to the death penalty undercuts this strategy. This is why, when a bill was introduced last month in Kentucky that would apply homicide charges to illegal abortions performed in the state (Kentucky banned abortion after six weeks after the Dobbs decision), it received blowback from the state’s Republican attorney general, who is running for governor in part on his anti-abortion record.13 “While I strongly support prohibiting abortions in Kentucky, I just as strongly support helping pregnant women,” he declared.
Louisiana law makers introduced a bill granting fetal personhood and declaring abortion homicide last spring, soon after the Dobbs decision was leaked. It was also quickly pulled because it lacked support from within the movement. Even Louisiana Right to Life came out against it in a statement that reaffirmed its support for “life and for moms.”14
Similar bills are sure to emerge as America navigates abortion policy in this new legal landscape and hardliners try to impose their vision for a post-abortion America. Their efforts are unlikely to garner widespread support from state Republican parties and anti-abortion organisations. They may, however, further galvanise supporters of abortion by reminding Americans of what is at stake. Even if abortion isn’t punishable by the death penalty, its restriction and criminalisation still leads to avoidable harm and preventable maternal mortality.