Opinion: Why proponents of fetal personhood are so interested in sex education

Editor’s Note: Mary Ziegler (@maryrziegler) is the Martin Luther King Jr. Professor of Law at UC Davis. She is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and “Roe: The History of a National Obsession.” The views expressed in this commentary are her own. Read more opinion on CNN.

Since the Alabama Supreme Court handed down a decision recognizing embryos as “person[s]” under the state’s Wrongful Death of a Minor law, the fight for fetal personhood has made headlines. Believers in fetal personhood think that from the moment an egg is fertilized, rights begin — and that liberal abortion laws are unconstitutional. But with the passage of recent state legislation protecting IVF — and the broader backlash the decision unleashed — it may seem that fetal personhood has taken two steps back.

Mary Zeigler - Bill Lax/Bill Lax/FSU Photography Service
Mary Zeigler - Bill Lax/Bill Lax/FSU Photography Service

There is no denying that abortion foes are angry at Alabama Republicans because of the new state protections for IVF. But the Alabama decision hasn’t led personhood proponents to slow down. Their movement is already pursuing new goals, some of them connected to successful conservative efforts to transform school sex education. If this mission succeeds, sex education programs will be recruiting grounds for the fight for fetal personhood.

This latest push brings together two longstanding, but previously largely separate, fights pursued by social conservatives. The first involves sex education. In the 1960s, when organizations like the Sexuality Information and Education Council of the United States (SIECUS) began promoting school sex education programs, some social conservatives balked. Groups such as the Moral Majority spent millions of dollars lobbying against sex education programs and denouncing the founder of SIECUS, Mary Steichen Calderone, labeling her a “moral degenerate” seeking to corrupt innocent children. Some of these arguments reflected a desire to infuse federal policy with Christian faith.

But at the height of the AIDS epidemic in the 1980s, even some conservative policymakers seemed convinced that some sex education programming was necessary to reduce the risk of sexually transmitted infection. C. Everett Koop, the conservative Christian, pro-life surgeon general who served under President Ronald Reagan, angered many of his Republican colleagues by suggesting that children should learn about safe sex to protect themselves.

In 1981, Reagan proposed a solution for the emerging rift on the right: The government could promote sex education programs, but only if they focused on abstinence. Funding for abstinence-only programs increased exponentially under President George W. Bush, with the federal government committing $176 million in fiscal year 2006, alone. But conflicts over sex ed have seemed to subside in the past several decades, especially after former President Donald Trump’s efforts to slash federal grants for groups leading programs on abortion failed in court, and after many conservative states simply decided not to create a comprehensive sex education program at all.

The battle for fetal personhood isn’t new, either. Since the 1960s, anti-abortion leaders have argued that the word “person” in the Constitution should apply to the fetus. Roe v. Wade not only recognized a right to abortion; the Court also rejected the argument that the 14th Amendment treated a fetus as a rights-holding person. At first, after Roe, anti-abortion groups and their GOP allies argued for a constitutional “human life amendment,” that would not just reverse Roe but would also write fetal rights into the 14th Amendment. But that effort hasn’t gone anywhere.

For decades, anti-abortion advocates seemed focused on overruling Roe and gaining control of the Supreme Court. But a demand for a human life amendment remained part of the Republican platform. Anti-abortion lawyers fought for so-called informed consent laws that force providers to perform an ultrasound before providing an abortion, and provide complete descriptions about the ultrasound images and cardiac sounds to the patient. Twenty-eight states require some form of counseling about the risks of abortion. These efforts, however, presented fetal protection as a matter of constitutional or civil rights, not as another front in the nation’s sex wars.

Now, that’s changing, in part because the sex wars have intensified in the face of backlash to growing support for LGBTQ rights. In 2022, the year the Supreme Court overturned Roe, Florida passed what has been dubbed the “Don’t Say Gay” law, which prohibits discussions of sexual orientation or gender identity. While initially focused on elementary education, the law has since expanded to cover all instruction through 12th grade (under a recent settlement, students and teachers can discuss sexual orientation and gender identity in the classroom, but not as part of formal instruction). Other conservative states soon followed suit. Republicans like Virginia Gov. Glenn Youngkin and Florida Gov. Ron DeSantis reinvented themselves as defenders of parents’ rights to control what their children learn in school.

The success of the GOP campaign on sex education eventually inspired anti-abortion groups. Live Action, an anti-abortion group that got its start in 2011, developed what it presents as an educational video called “Meet Baby Olivia,” in 2021. The video, which uses lifelike animations to paint a picture of fetal development, has drawn criticism from medical experts, who argue that it mixes scientific fact with emotional manipulation.

While “Meet Baby Olivia” isn’t new, the campaign to promote the film kicked into overdrive after the Supreme Court overturned Roe v. Wade. Live Action began screening “Meet Baby Olivia” for groups of state lawmakers, including the highly influential American Legislative Exchange Council, a conservative group of state legislators and private sector leaders who share model legislation. North Dakota became the first state to require that sex education curricula include both fetal ultrasounds and animations like “Meet Baby Olivia.” Other states, like Tennessee, Iowa and Kentucky, are considering similar bills.

Why is the push to write fetal development and personhood into sex ed curricula gaining steam now? In part because conservatives are trying to build on existing wins around classroom censorship in the context of sexual orientation, gender identity and race. In addition to “Don’t Say Gay” bills, the GOP has successfully banned some classroom discussions around race and racial justice. Laws like North Dakota’s try to borrow from a successful legislative playbook.

It’s not just about the GOP’s fondness for shaping curriculum and redefining parental rights. Dobbs has also heightened the expectations of the antiabortion movement: Now that a national right to choose abortion is gone, anti-abortion leaders need a new long game and have looked to the fight for fetal personhood. Republicans failing to deliver an abortion ban can no longer hide behind the Supreme Court, claiming that Roe has tied their hands.

What’s more, abortion opponents have shifted the focus of their fetal rights campaign: They hope that state courts and state lawmakers will recognize constitutional fetal rights. All of this, they hope, will lay the groundwork for a US Supreme Court decision recognizing constitutional fetal rights. Rather than changing the text of the Constitution — which seems impossible given that an amendment would require a supermajority vote in both Congress and the states, and a majority of Americans oppose abortion bans — anti-abortion groups increasingly hope to change how the Constitution is interpreted. Live Action and other leading antiabortion groups called for just that in a 2023 letter laying out a new “north star” for their movement: “the pro-life movement must direct its efforts to achieving our ultimate goal: ending abortion by ensuring equal protection for children in the womb.”

No one expects the Supreme Court to make that move right away. There are obvious weaknesses in arguments for constitutional fetal personhood that the Court would have to confront. And for the sake of appearances, Kavanaugh would not likely want to reverse course so quickly. After all, in the Dobbs ruling, he wrote that the Constitution is neither pro-life nor pro-choice — suggesting that he isn’t open to recognizing fetal rights in the near term. But in the longer term, a win in the Supreme Court seems more realistic than anything requiring popular support. If there is any path to personhood, no matter how slow or challenging, abortion opponents expect Republicans to deliver some immediate progress.

At the same time, the overruling of Roe has also unleashed backlash that has energized Democrats, cost Republicans elections and fueled ballot initiative votes. Republicans are looking for a way to advance demands for fetal personhood without significant pushback. Focusing on even more stringent abortion bans could backfire. Any limit on IVF seems even riskier. By overhauling sex education, Republicans hope to advance demands for fetal personhood without angering voters.

The latest battle in the war over sex education is a reminder that what happened in Alabama is just the beginning of struggles over fetal personhood. Those struggles will transform laws on much more than abortion, and they may start with what happens in American schools.

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