And, as abortion opponents grudgingly recognized, natural law could open a Pandora’s box. If the Supreme Court recognized fetal personhood, the justices would probably subsequently confront claims about fetal rights in a variety of contexts, from Social Security benefits to tax law. Very early on, conservative originalist jurists like Justice Antonin Scalia called on the court to “get out of this area.” It was hard to imagine judges wanting to take on the even messier project of developing a fetal personhood jurisprudence.
And so abortion foes turned to originalism-based arguments that stressed that the law did not recognize a right to abortion at the time the 14th Amendment — whose due process clause was the basis of Roe’s privacy right — was ratified. These promised a constrained court, one that was above politics. But these aren’t the arguments that lawmakers in Alabama and Georgia are making.
What’s more, Alabama’s law, rather than claiming to protect both women and fetal life, instead casts abortion as a zero-sum game, chastising “abortion opponents” as those who would “speak to women’s rights,” but “ignore the unborn child.” Many of the other “heartbeat” laws around the country similarly focus almost exclusively on fetal rights.