It’s not just Roe. It’s now plausibly a national abortion ban.

We’ve seen a lot of talk about Roe v. Wade.

Isn’t fetal personhood under the 14th Amendment (meaning that fetuses are recognized as legal persons) and a national total abortion ban at least plausible if Trump wins a second term?

The idea is that anti-abortion activists could seek an injunction against all abortion providers because under the U.S. Constitution, all abortions are murder.

I can imagine three votes for it, maybe four for a national late-term ban based on viability, if Amy Coney Barrett is confirmed. (I’d count Thomas and Alito as the second and third vote, and maybe Gorsuch as four). Imagine if Trump gets to replace one or two of the other Justices in a second term, or even if he loses, a Republican president in 2025-2028 could add a fifth vote.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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