Greer Donley (University of Pittsburgh – School of Law) & William M. Carter, Jr. (University of Pittsburgh – School of Law) have posted An Originalist Critique of Fetal Personhood (175 U. Pa. L. Rev. (forthcoming 2026)) on SSRN. Here is the abstract:
The current “North Star” in the antiabortion movement is fetal personhood: a declaration by judicial fiat that conception marks the beginning of constitutional personhood—and therefore, constitutional rights—under the Fourteenth Amendment. The implications are potentially enormous, including a de facto national abortion ban, mass criminalization in pregnancy, and the end of IVF as we know it. These policy consequences are well covered in the scholarship, but few have critiqued fetal personhood on its own terms, currently centered on originalism. This Article does exactly that, mining nineteenth-century dictionaries to understand the term’s meaning to the public, lawyers, and drafters of the Reconstruction Amendments.
We conclude that the meaning of “person” at the time of the Fourteenth Amendment’s ratification required birth. We first explore the original public meaning. One common public meaning of “person” was “living human being,” but dictionaries reveal that “life” was understood to begin at birth—or quickening, at the earliest. Moreover, an equally common public meaning of “person” was “individual,” which meant an independent and separate entity. Individuality requires the separation of birth. The legal meaning of “person” was different than the public meaning, but even more clearly excluded fetuses. Nineteenth century legal dictionaries note that personhood was distinct from human life. Rather, “person” meant “rights-holder,” and those sources plainly state that those rights were bestowed after a live birth.
Finally, public meaning originalism requires a consideration of context. And the context of the Fourteenth Amendment was not to define or alter the meaning of “person,” but to remedy the original Constitution’s perversion, whereby slaves who were clearly “persons” in fact were treated as property in law. The ratifying public understood “person” in the Lockean sense of a rational actor with free will and individuality––a definition fetuses could not meet. In sum, the originalist case for fetal personhood involves an acontextual originalism with cherry-picked sources. Fetuses were simply not understood as persons in 1868.
Highly recommended.