And So It Begins.
Trump Judges Bring Us One Step Closer to Abortion Ban by Judicial Fiat
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What’s Happening?
Democrats and liberal pundits appear dangerously close to sidelining the fight for reproductive healthcare, leaving anti-abortion policymakers, judges, and activists to work without organized opposition to obliterate Americans’ reproductive freedoms.
If this sounds familiar, it’s because it is a replay of what brought us the Dobbs decision. For far too many Democratic policymakers, abortion rights were only a winning issue after women lost a core constitutional right. The same is true now: Democrats are skittering away from defending what’s left on the cutting floor of abortion rights in favor of supporting so-called “working class issues,” a list on which abortion access never seems to be included—despite the fact that women represent half of the working class and that “abortion access is fundamentally intertwined with economic progress and mobility.” And in the meantime, anti-abortion policymakers, judges, and activists are working to dismantle what is left of Americans’ reproductive rights.
Case in point: Last week, a trio of Republican-appointed federal judges threw out a challenge to New York State’s Reproductive Health Act (RHA)—but gave future plaintiffs a roadmap to establish “fetal personhood” and have abortion declared unconstitutional.
The plaintiff in this case, Doe v. Hochul, sought to represent a “class of viable fetuses in New York” against the RHA, which she argued “violated the fetuses’ rights to life and equal protection under the Fourteenth Amendment.” Establishing fetal personhood is one prong of the anti-choice post-Dobbs playbook to continue the march toward a national abortion ban. It also includes removing access to medication abortion—including banning mifepristone and using an antiquated obscenity law called the Comstock Act to ban the mailing of medication, instruments, and materials used to perform abortion—defunding Planned Parenthood, targeting doctors’ ability to provide an emergency abortion to save a patient’s life, and continuing to stack the federal courts with extreme anti-choice judges. Nearly all these aspects of the Project 2025 anti-abortion playbook are being implemented right before our eyes, and the courts remain a central battle field.
The U.S. Court of Appeals for the Second Circuit’s three-judge panel found that the plaintiff “failed to identify or otherwise describe any class member in the viable fetus class that she sought to represent.” But the panel, which included two Trump appointees, suggested that they would not throw out a lawsuit from “someone—an expectant father, other relative, or perhaps even a non-relative like Doe” who “describes the viable fetus” they seek to represent “with sufficient specificity.” This is not just a theoretical legal strategy, but one that has been put into practice by anti-abortion groups and lawyers who have sought out men to report and sue their former partners for “wrongful death.”
In other words, if a new plaintiff were to bring a case on behalf of a specific fetus, these judges would be happy to consider issuing a ruling that fetuses have “constitutional personhood,” which would allow abortion to be declared unconstitutional and banned nationwide.
What’s the Broader Context?
New York enacted the RHA in 2019, just after the U.S. Senate confirmed Justice Brett Kavanaugh—the likely fifth vote to overturn Roe v. Wade. Sure enough, in 2022’s Dobbs decision, Kavanaugh voted with the Roberts supermajority to eliminate the federal constitutional right to abortion, triggering multiple state abortion bans and ripping fundamental rights and freedoms from people across the country.
The Dobbs decision ostensibly left it to the states to decide whether to protect their residents’ access to reproductive healthcare. But turning the issue back to the states was not enough for the anti-abortion faction of the right-wing legal movement, which quickly began invoking the hollow theory of “originalism” to argue that the Constitution actually forbids abortion altogether. In an amicus brief in Dobbs, anti-abortion professors Robert George and John Finnis wrote that prohibiting abortion nationwide “is constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.” George is a long-time ally of Leonard Leo, the anti-abortion operative who served as Trump’s first‑term advisor on judicial nominations, and a financial backer of Leo’s new $30 million anti-abortion initiative, the “Life Leadership Conference.”
The Roberts Court did not adopt George’s reasoning in its Dobbs decision, and Kavanaugh rejected the theory in his concurring opinion as “wrong as a constitutional matter”—although he also made sure to note that he “respect[s] those who advocate for that position.” But that has not deterred anti-abortion litigants eager to impose a nationwide abortion ban on an unwilling public. Nor, apparently, has it deterred the three circuit court judges who now say they are open to considering fetal personhood arguments.
This isn’t a national secret. Type the word “abortion” into the search box in Project 2025, the Trump Administrations’ policy playbook, and it turns up 91 items. Every one of these proposals is included in Project 2025’s agenda, and it repeatedly refers to the “rights of the unborn” child. That is not-so-veiled language describing fetal personhood.
We—and our elected representatives—cannot afford to ignore what is happening as the anti-abortion machine continues to be laser-focused on achieving its ultimate goal of eliminating abortion access nationwide. If we don’t shift course, stay tuned for Dobbs 2.0.
What Can You Do?
Contact your federal and state representatives and let them know that you expect them to fight for Americans’ access to reproductive healthcare.
Ask them how they plan to use their constitutional power as the People’s Branch to protect access to medication abortion and fight back against the judicial and executive branch’s attempts to remove access to abortion.
Let them know that you expect them to question judicial and executive nominees on issues of reproductive healthcare—and oppose those who have a history of aiding and abetting the anti-abortion movement.
Share calls to action and other resources from Reproductive Freedom for All, Planned Parenthood, the ACLU, the National Network of Abortion Funds, Pregnancy Justice, and others.