The first week of President Donald Trump’s second term was an uncertain one for abortion opponents. He pardoned a group of protesters convicted of violating the FACE Act, which protects access to clinics and places of worship; pledged to stop enforcing the law; rescinded Biden-era orders protecting abortion access; and revived the Mexico City policy, which blocks aid to nongovernmental organizations that provide abortions or advocate for abortion rights. But abortion opponents are clearly hungry for more. They are pushing Trump to stock the courts with anti-abortion judges, turn the 19th-century Comstock Act into an abortion ban, and end telehealth access to abortion pills.
One sign of whether Trump will answer their calls came from an executive order that doesn’t even mention the word “abortion.” The anti-transgender order, which declared that there are only two biological sexes and they “are not changeable,” has already created chaos for passport, visa and Global Entry holders. But it also includes a coded reference to an anti-abortion strategy involving fetal personhood.
It also seems likely that Trump will nominate judges who are open to constitutional arguments for fetal personhood.
It’s unclear if the reference is a sign of a more aggressive anti-abortion agenda in Trump’s second term or simply a way for him to buy time with abortion opponents who are pressing him to go much further than he did in his first administration. But it caught the attention of House Speaker Mike Johnson, R-La., who praised the executive order for declaring, in his words, “life as beginning at conception rather than birth,” and energized leading anti-abortion activists. Whatever Trump does, the executive order’s references to fetal personhood will matter because they are part of a master plan to move the federal courts toward recognizing constitutional fetal rights.
The executive order defines a female as “a person belonging, at conception, to the sex that produces the large reproductive cell” and a male as “a person belonging, at conception, to the sex that produces the small reproductive cell.” To be clear, sex differentiation takes places after conception — the large and small cells (or egg and sperm cells) develop weeks later or even at puberty. Scientific accuracy aside, though, this language has a special significance to the anti-abortion movement, which argues that the word “person” in the 14th Amendment applies from the moment of conception and confers rights to equal protection and due process on the fetus. The hope is that personhood arguments will lead to a judicial decision that goes far beyond the Dobbs ruling, declaring liberal policies on abortion or even in vitro fertilization violate the federal Constitution.
At a minimum, Trump’s executive order seems to express sympathy to this point of view. It also seems likely that Trump will nominate judges who are open to constitutional arguments for fetal personhood. The order and personhood-friendly judges fit perfectly in the long-term plan anti-abortion groups have laid out to secure recognition of personhood. They aim to establish fetal rights in as many states as possible. This includes not just sweeping declarations of fetal rights in state constitutions, but also more modest steps, like the recognition of fetal personhood in contexts like child support during pregnancy or wrongful death.
The goal is to make fetal rights and fetal personhood the norm in conservative states and even federal law — so much so that anti-abortion lawyers can eventually convince the Supreme Court that it is incongruous not to recognize federal fetal rights that would affect abortion or IVF.
That said, a win for personhood at the Supreme Court will take time. The justices most likely to retire, Samuel Alito and Clarence Thomas, are also the most conservative. Moving the court to embracing personhood would likely require the replacement of justices at least somewhat to Alito’s and Thomas’ left, none of whom seem poised to leave the court in the near term.
It’s unclear how much further Trump will move against abortion rights in general.
And other than judicial appointments, it’s unclear how much further Trump will move against abortion rights in general, let alone on personhood specifically. There are no clear signs yet that his Justice Department will transform the Comstock Act from an obscenity law into what anti-abortion groups call a “national abortion pill trafficking law.” New limits on mifepristone, a drug used in more than half of all abortions, may or may not be forthcoming.
Nor has the new administration shown interest yet in enforcing fetal personhood through executive action. For example, as the organization Americans United for Life recommends, the president could issue an executive order declaring that the 14th Amendment applies from the moment of conception, and deny federal health care funding to states that don’t acknowledge fetal rights.
While it’s hard to guess exactly what Trump will do, it’s easy to imagine that abortion opponents will be disappointed, especially given that the GOP controls both Congress and the White House. Nodding to fetal personhood may be a way for Trump to get anti-abortion leaders off his back without taking the kind of dramatic action that would be unpopular or even cost the GOP in the 2026 midterm.
Even if Trump doesn’t go further to advance anti-abortion priorities, the nod to fetal personhood in the gender executive order will mean something. This executive order is almost certain to draw a legal challenge, but in the meantime it will also be part of a new project to establish fetal personhood as the next big aim of the anti-abortion movement. And while the Trump administration may not be willing to give the anti-abortion movement everything it wants, abortion opponents will use this executive order to bolster their case for constitutional fetal rights to the Supreme Court.
Mary Ziegler is a law professor at the University of California, Davis, School of Law and the author of "Roe: The History of a National Obsession."