Surprising no one but depressing everyone who isn’t an unmitigated xenophobe, Donald Trump made sure the first day of his presidency included an executive order ending birthright citizenship. Birthright citizenship is the principle that where someone is born determines their citizenship, regardless of where one’s parents are from.
Setting aside the fact that such an order is wildly unconstitutional because birthright citizenship is guaranteed under the 14th Amendment, it’s a stance that runs afoul of an entirely different conservative interpretation of the 14th Amendment.
Conservatives have been pushing the notion of fetal personhood—the idea that the 14th Amendment’s protections apply to fertilized eggs—for decades. It’s the underpinning of the argument that abortion at any stage of pregnancy is murder.
But ending birthright citizenship is inherently in tension with this concept. The 14th Amendment can’t simultaneously grant full personhood to all fetuses everywhere at the moment of conception while also denying a core protection of the 14th Amendment, citizenship, once certain fetuses become actual babies.
While consistency has never been something that Trump strives for, this particular needle might be difficult to thread.
Unless one is fully marinated in anti-choice thinking, it’s easy to see why fetal personhood is unworkable. It essentially grants a fetus rights that outweigh the rights of the pregnant person.
If a fetus has an inherent right to life, it doesn’t just mean that the person carrying said fetus can’t get an abortion; It means, as the Alabama Supreme Court decided last year, that fertility treatments such as in vitro fertilization can be banned if the treatment results in excess embryos. It also means pregnant people can be subject to a system of surveillance and control where they can be prosecuted for anything deemed to be harmful to a fetus.
Fetal personhood is what underpins states forcing people to carry nonviable pregnancies to term even if it will physically harm them. Take Idaho, which has fetal personhood language in its statutes and has convicted multiple people of “injury to child” for using drugs while pregnant. In defending Idaho in a lawsuit from several women denied abortion care under the state’s total ban, the state argued that there is nothing in Idaho that protects a right to fertility.
This is, quite frankly, a stupendous amount of protection. From the moment of fertilization, the continued vitality of the fetus is far more important than that of the pregnant person. Indeed, the fetus has such robust rights that a pregnant person is required to sacrifice their future ability to have more children to protect even a nonviable fetus.
So, fetal personhood means that a small clump of cells is already a fully autonomous being that deserves the full protection of the Constitution and that those protections attach at the moment of conception. That means, to be perfectly clear, that those clumps of cells are citizens, ones that states like Idaho have sworn to protect at all costs.
It takes a staggering amount of mental gymnastics to then say that when a fetus becomes an actual living baby, it no longer has the protections of citizenship because of the citizenship status of its parents.
It’s long been a joke that the GOP is the party that protects children up to the point of birth and then never again thereafter, and that is especially true here. Conservatives could harmonize their views here by protecting both fetuses and babies, but they’re not going to do that because they don’t actually care about the health of children.
They could also harmonize their views by deciding that only those fetuses carried by undocumented pregnant people are not persons under the 14th Amendment, but they’re not going to do that. That would open the door to allowing for abortion care in those instances.
The tension between these worldviews is not going to be merely theoretical. In a different context, the Trump administration is already pushing fetal personhood. The anti-trans executive order issued on the first day of his presidency declares there are only two sexes, male and female, but defines those terms in a particularly unhinged and unworkable way:
“‘Female’” means a person belonging, at conception, to the sex that produces the large reproductive cell.
‘Male’ means a person belonging, at conception, to the sex that produces the small reproductive cell.”
It is in no way clear how it is possible to assign sex at conception. Most parents, if they want to know, find out the sex of the baby in a routine ultrasound around 18 weeks. Fetal ultrasounds taken around week 12 identify the sex correctly only around 90% of the time.
There are other ways to learn the sex earlier, such as types of chromosomal testing around week 10, but those types of tests irk conservatives because they are also used to determine whether a fetus has genetic abnormalities severe enough to warrant considering abortion. Functionally, people only learn the sex of their baby once enough characteristics, be they genetic or genital, exist.
Nobody knows they’re having a girl the second the egg is fertilized. There’s also the problem that sex differentiation doesn’t occur until several weeks into pregnancy. Up until about six weeks of gestation, all fetal genitalia are female. Only after that point does a gene on the Y chromosome kickstart the development of male testes.
And we’re not even going to get into how the notion there are only two sexes isn’t something found in science or that intersex people exist.
The executive order throws out all that in favor of making the moment of conception some mystical imperative that governs the rest of someone’s life, making their sex immutable. That might not feel like fetal personhood in the same way that anti-choicers deploy it, but it is.
Both fetishize the unknown moment of conception as the most powerful granter of rights and responsibilities. Both require pregnant people to knuckle under to a conservative worldview about fetal rights reigning supreme. Both necessitate throwing out science in favor of conservative religious ideas about how bodies work.
This invocation of fetal personhood may be the first one of Trump’s new administration, but it won’t be the last. Trump is eager to enshrine the Project 2025 view of fetal personhood into law, even though he spent the election pretending he had no idea what Project 2025 was.
But that eagerness will run headlong into his goal of eliminating birthright citizenship. That goal requires picking and choosing—saying, functionally, that some babies get full rights and some do not. But fetal personhood requires full rights for all fetuses, not just some.
Because this is the Trump administration, you can expect that this tension won’t be resolved in any cohesive or kind way. Fetal personhood will be used as a cudgel when it suits him and will be discarded when he feels like it. All in the service of ongoing cruelty and the diminishment of the rights of anyone conservatives don’t like.
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