It’s a chilling fact that the Project 2025 playbook written for Donald Trump’s administration is just a roadmap for the first 180 days. But based on the contents of that manual, the MAGA movement’s longer-term goals aren’t exactly a mystery. Still, if people want a broader sense of what’s coming down the pike in the months and years ahead, it’s instructive to look at litigation involving rights granted under a Reconstruction-era addition to the Constitution.
The Fourteenth Amendment was intended to extend full citizenship to formerly enslaved Black people, and it undergirds the right of all Americans to be treated equally under the law, no matter who they are or in which state they reside. Yet over the past year, conservatives have been increasingly open in their beliefs that pregnant women, transgender adolescents, affirming parents of trans kids, and immigrants are not legally entitled to the Fourteenth Amendment’s protections—all while arguing that fertilized eggs are. Republicans are using strategic litigation to effectively rewrite the Fourteenth Amendment to prioritize conservative white men and embryos above and beyond everyone else. They are warping something used to grant rights into a bludgeon to take them away, and are redefining who counts as a person in the United States.
“The selectivity about whom the Fourteenth Amendment ought to apply to is stunning,” said Khiara M. Bridges, professor at University of California at Berkeley School of Law. “It’s not demanded by the text of the Constitution at all. Instead, these are political choices that are being made, and they’re elevating certain individuals’ rights.”
Michele Goodwin, professor of constitutional law and global health policy at Georgetown Law, calls this process of picking and choosing “citizenship gerrymandering”—a process in which one’s rights are not necessarily granted by the Constitution but rather a live issue, subject to the whims—and more specifically, the prejudices—of state lawmakers and courts. The judiciary is already stacked with Trump picks, but in the next four years, it’s possible that half of all judges will be his nominees.
Many GOP-appointed members of the judiciary profess to care about the original intent of our laws, but accepting this theory of the amendment is merely “opportunistic originalism,” Goodwin said. States are quickly passing laws and filing litigation over issues such as abortion and trans rights because the makeup of the courts provides a chance “to make movement within these particular spaces,” Goodwin said.
Movement, specifically to the right, is necessary to a coalition of Christian fundamentalists, white nationalists, and power-hungry Republicans displeased that women and Black people have made gains in the modern fight for full citizenship, Goodwin said. These fights culminated in protections including the Civil Rights Act, the Voting Rights Act, the Pregnancy Discrimination Act, and, yes, Roe v. Wade.
States and private lawyers have set about demolishing those rights, and the Supreme Court has responded in turn: It gutted the Voting Rights Act in Shelby County v. Holder, a 2013 ruling that Goodwin said basically ignored the Reconstruction Amendments; overturned Roe despite scholarship showing a Fourteenth Amendment basis for bodily autonomy following the end of inheritable chattel slavery; and then ended affirmative action in college admissions in 2023. “If you look back at what’s taken shape in the last 15 to 20 years, it’s really been a dismantling of racial justice, and so now everything else is up for grabs,” she said, adding, “Race is often the conduit for undermining what will be the rights of us all.”
“All of this ultimately is about power and how power situates within our democracy,” Goodwin said. “I think that they’re stuck on something that is really important, which is the arc of citizenship that happens to be for disfavored people.”
The Fourteenth Amendment was ratified in 1868 as a direct response to Southern states continuing to act as if “Black people did not deserve citizenship and all that came with it—that dignity of equality, that dignity of being recognized as full and whole, of being people,” Goodwin said.
Section 1 of the Fourteenth Amendment outlines birthright citizenship, as well as due process and equal protection under law. It’s worth reading it again to see just how ridiculous Republicans sound when they claim it should apply to embryos but not to people born here to noncitizen parents:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
As Goodwin said, “The idea here was that being born meant something, and that is very different than gametes—than fetuses.”
Yet prominent anti-abortion group Students for Life argues that “the human rights of all Americans—born and preborn—are anchored again in the 14th Amendment.” The CEO of Alliance Defending Freedom, a key player in litigation about abortion, gender-affirming care, and parental rights in schools, told Politico in March, “We do believe at ADF that the Constitution protects the life of an unborn child and that that is in the 14th Amendment.”
But conservative groups don’t believe that all Americans deserve protection under the law. As high-profile cases of pregnant people being denied emergency medical care show, giving rights to fetuses, let alone embryos, relegates women to second-class status. The U.S. is suing Idaho over its policy to deny emergency abortions to women facing threats to their health—complications that could cause a loss of fertility or even require amputations—because their lives aren’t immediately at risk. (Crucially, ADF is representing Idaho in this case. The Trump administration is expected not only to drop the lawsuit but to rescind Biden administration guidance that hospitals have to provide abortions to stabilize patients under the Emergency Medical Treatment and Labor Act, or EMTALA.)
South Carolina lawmakers made plain the harms of the logical endpoint here. They reintroduced a bill that would allow women who have abortions at any stage of pregnancy to be charged with homicide and called it the “South Carolina Prenatal Equal Protection Act.” If fertilized eggs have rights, then women and pregnant people do not, and every pregnancy loss is a potential crime scene. We can expect low-income Black people and other people of color to face the same higher rates of abortion criminalization as they do for other crimes, Bridges said.
The recent Supreme Court arguments about Tennessee’s ban on gender-affirming care for adolescents underscored the selectivity in who gets to exercise Fourteenth Amendment rights. The conservative position in U.S. v. Skrmetti is that while parents typically get to argue a due process right to direct their children’s upbringing, that right does not extend to parenting that affirms their transgender child’s identity. Trans adolescents can’t access medical care that is legal for their cisgender peers, and Republicans claim this is a regulation, not discrimination based on sex. Under this interpretation, even trans and nonbinary adults could continue to see their rights diminished.
“This [incoming] administration would be interested in denying them health care and, if not criminalizing them, certainly banishing them from public spaces,” Bridges said. One conservative group says it will pursue a ban on federal insurance covering affirming treatments, akin to the Hyde Amendment for abortion.
As far as immigrants are concerned, President-elect Trump has also said he wants to end birthright citizenship and start a mass deportation program, which would necessarily rope in U.S. citizens. While citizenship for people born on U.S. soil is written verbatim into the Fourteenth Amendment, conservatives have previewed an argument to gut it.
Judge James Ho, who was on Trump’s 2020 shortlist for Supreme Court nominations and is thought to be a top candidate should a justice retire, recently walked back his nearly two-decade defense of birthright citizenship by saying that it “obviously doesn’t apply in case of war or invasion.” Ho was echoing xenophobic language that states like Texas have used to try to justify breaking federal law. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,” he said in an interview published after the election. “And I can’t imagine what the legal argument for that would be.” Ho is clearly auditioning for the job.
Still, citizenship itself doesn’t always protect against removal—meaning people born to immigrant parents could have their rights violated without the Supreme Court issuing a new interpretation. Bridges said this country’s history of mass deportations is rife with evidence that legal residents will be caught up in the dragnet. Hundreds of thousands of U.S. citizens with Mexican ancestry were deported during the Great Depression under President Herbert Hoover. (His slogan was “American jobs for real Americans.”) President Dwight Eisenhower’s 1950s deportation regime also wrongly removed American citizens of Mexican descent.
“This wasn’t about undocumentedness, and this wasn’t about immigrants. This was about non-whiteness,” Bridges said. Under Trump 2.0, she said, the U.S. would once again be removing people from the U.S. because they are not white. “We’re talking about building camps, right? That’s where we are.”
To Bridges, there are echoes back to the Fugitive Slave Acts: It wasn’t just enslaved Black people who escaped and were then returned to chattel slavery. “Free Black people were captured and taken to the South and coerced or forced to be slaves,” Bridges said. “Again, this wasn’t about a condition of servitude, this was about Blackness.” And because history rhymes, a Missouri Republican introduced a bill last month that would award $1,000 bounties to people who turn in suspected undocumented people to the state. (Importantly, there are also multiple abortion bounty laws in effect.)
Bridges said we may see other judges cynically argue that the “history and tradition” of the Fourteenth Amendment suggests it applies only to formerly enslaved people, not immigrants from Central or South America. But the conservative majority’s brand of historical analysis is deeply flawed: Justice Samuel Alito’s Dobbs opinion cited abortion bans in effect at the time the Fourteenth Amendment was ratified as evidence that abortion wasn’t a long-held right and that Roe v. Wade was wrongly decided.
Alito completely ignored that most states banned termination only after quickening, or when women could feel fetal movement. Abortion before that point was common—Benjamin Franklin even published an herbal remedy—but it was known not as abortion, rather as “restoring the menses.” Bridges said it should have been impossible for the court to ignore the context in which those post-quickening abortion bans were passed: around the end of the Civil War when enslaved people were emancipated and white male doctors sought to delegitimize the mostly Black profession of midwifery.
“The same social movement that succeeded in getting these criminal abortion laws passed such that Alito could count the laws in Dobbs—that same movement was very concerned about native-born white women having lower birth rates than non-native women and Black women,” Bridges said.
To say that we see similar nativism and sexism today would be a stark understatement. The pronatalist wing of the conservative movement believes in the white supremacist “great replacement theory” that immigrants are overrunning “real” Americans, who aren’t having enough babies to maintain the desired composition of the country. (That is to say: majority-white.)
The groups of people whose Fourteenth Amendment rights to be recognized as full humans are under attack from Republicans are deeply connected to one another. “It’s an error to read these things separate from one another,” Bridges said, adding that the obsession with mass deportations is connected to the desire to end birthright citizenship, which are both tied to wanting to revert to traditional gender and family norms, and that’s linked to the interest in giving rights to fertilized eggs. “All of these things are part of the same project,” she said. “This is about whiteness and patriarchy. It’s about creating the U.S. as a nation for white men.”
So who gets to be a citizen, or a person with equal rights? Not women or people capable of pregnancy, certainly not trans people or their affirming parents, and definitely not Black or brown people. In the Trump 2.0 era, we can expect to see escalating rhetoric that some people really aren’t people, they’re property—either of the state or of their family patriarch. So much for the dignity of equality.
The post The GOP Is Rewriting What It Means to Be a Person appeared first on New Republic.
