American Abortion Policy Will End Up in the Hands of This 34-Year-Old Trump Appointee
Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
Six months into Donald Trump's second term, his anti-abortion agenda is well underway, not through a single sweeping ban, but via a quieter, more insidious strategy: embedding anti-abortion fundamentalism into the law, one judge and one case at a time. If Democrats think the battle ended with Dobbs , they're making the same mistake that allowed that catastrophe in the first place. This time, the right is moving faster, more strategically, and, unfortunately, under even less scrutiny.
Case in point: Last week, the Republican-controlled Senate handed Trump nominee Josh Divine a lifetime seat on the federal bench. Divine is no mystery figure. He is, in many ways, the perfect embodiment of the post- Dobbs anti-abortion legal movement, touting a career record of obsessive hostility to contraception, reproductive health care, and even victims of sexual violence.
Divine has stated that he believes “a genetically unique human comes into existence at fertilization,” embracing a vision of “ fetal personhood ” that doesn't just reject Roe , but lays the groundwork for banning abortion, in vitro fertilization, and potentially even birth control under the 14th Amendment. That's the core logic of the fetal personhood legal theory: that embryos and fetuses aren't just potential people, but full constitutional persons entitled to due process and equal protection under the law. In other words, abortion access doesn't just fall as a right—it's unconstitutional .
When asked during his Senate confirmation hearing whether he believes an IVF embryo is a person, Divine refused to wade into a “hotly litigated issue.” But he previously left little doubt, referring to abortion providers as killers of “pre-born babies” and railing against insurers for covering what he falsely calls “abortifacients,” like hormonal birth control.
Divine's use of junk science to support his crusade against abortion access is equally alarming. In a case challenging access to mifepristone, a safe and widely used abortion medication, Divine co-authored a complaint citing a study so riddled with bias and methodological errors that it was later retracted. When the complaint was amended, he simply swapped in different sources using the same flawed data and repeated inflammatory falsehoods like the claim that mifepristone “starves the baby.” This is not the work of someone with the capacity to be an impartial jurist. It's the hearing tape of a dogmatic anti-abortion activist who views the judiciary as a vehicle to achieve political goals he can't win democratically.
Hardly a lone zealot, Divine is a foot soldier in the implementation of Project 2025 's anti-abortion agenda, the MAGA movement's blueprint for remaking America in its white Christian nationalist image. While many of Project 2025's anti-abortion proposals are too toxic to say out loud—like using the archaic Comstock Act to ban abortion nationwide through backdoor administrative enforcement—the plan's authors are continually advancing most of them through a decentralized strategy.
In the courts, for instance, MAGA activists are pressing fetal personhood theory before whom judges their allies and financial backers hand-selected. At the Supreme Court this term, in Medina v. Planned Parenthood South Atlantic , the six Republican justices greenlit state efforts to defund Planned Parenthood. And last month, in Doe v. Hochul , a panel of Republican-appointed judges—including two Trump appointees—did something troubling. While the group dismissed a fetal personhood lawsuit targeting New York's Reproductive Health Act, they included an open invitation to anti-abortion activists to bring a stronger case and offered a roadmap outlining how to do so. The court said it would entertain a new suit by someone who could identify a specific fetus to represent—“an expecting father, other relative, or perhaps even a non-relative like Doe.” In plain English: If you can name a fetus, we might declare it a constitutional person. Of course, abortion opponents are already recruiting men to sue their former partners' care providers on behalf of embryos.
Trump's executive branch is also driving this assault. His administration hired fetal personhood proposes Josh Craddock to serve as a top deputy in the Justice Department's Office of Legal Counsel, where he will wield enormous influence over executive branch legal interpretations. Earlier this year, Craddock co-authored a letter urging the DOJ to use the Comstock Act to ban the mailing of abortion pills, devices, and instruments. He also authored a widely circulated law review article arguing that the 14th Amendment prohibits abortion, making him a legal architect of the very theories MAGA is now working to enshrine in federal law. Meanwhile, at Trump's Department of Health and Human Services, Secretary Robert F. Kennedy Jr. announced this spring that the Food and Drug Administration would be conducting a safety review of mifepristone, citing supposed concerns about “adverse events.” Those concerns were raised by yet another junk study , published by a Leonard Leo–funded dark money group, the Ethics and Public Policy Center, which also helped develop Project 2025 .
In Congress, Trump's wrecking-ball reconciliation bill just handed abortion opponents their long-sought goal of defunding Planned Parenthood at the federal level by barring reimbursements to Medicaid patients for even non-abortion health care services. Planned Parenthood prevailed in the first stage of its federal lawsuit against HHS over the reconciliation provision, winning an injunction against its enforcement earlier this week, but as Mary Ziegler observed in Slate, “none of this is likely to last if the case makes it to the Supreme Court.” Meanwhile, a host of anti-abortion measures have either passed the House or await action, and Mike Johnson's caucus has a queue of anti-abortion riders prepared for appropriations season, signaling a multipronged strategy: cut federal dollars, criminalize medication abortion, and redefine fetal rights.
Despite all of Trump's promises that he would “leave abortion to the states,” the notion that states can fully protect abortion rights if they choose to in a post- Dobbs world is wishful thinking. If fetal personhood becomes constitutional doctrine, state laws protecting abortion—even in deep-blue states—could be invalidated overnight. IVF could be criminalized. Birth control could be next.
So, where are the Democrats? Not at Josh Divine's confirmation hearing, for one. On that occasion—the only chance senators would have to question Divine before Senate Republicans ushered the 34-year-old into a life-tenured judgeship—only two of the committee's nine Democrats bothered to stick around . (The two were Sens. Dick Durbin and Alex Padilla.) And Sen. Angus King, who caucuses with the Democrats, actually voted to confirm Divine because Sen. Josh Hawley gave him a “strong reference.” (King quickly acknowledged this vote was a “ mistake .”)
There are troubling signs that the Democratic Party is already forgetting the wave of post- Dobbs outrage and electoral energy that kept it competitive over the past two cycles, and that elected Democrats are starting to see the threat to reproductive freedom as another “distraction” from “kitchen-table issues.” On Meet the Press recently, for example, Rep. Tom Suozzi suggested that Democrats were too concerned with “reproductive rights” and other civil rights issues that, as he sees it, aren't the ones keeping voters up at night. This not only overlooks how fundamental reproductive health care access is to economic security—it sends a demoralizing signal to the tens of millions of women whose personal autonomy remains under sustained assault, who also happen to make up the party's most important voting base.
Democrats didn't discover abortion rights as a winning issue until after the right had already taken them away. Are they really going to wait for fetal personhood to become law before fighting back?
We've seen this movie before. Trump and his fundamentalist allies want to make reproductive freedom extinct. They'll do it the same way they ended Roe : by building the legal scaffolding quietly, then slamming the trap shut all at once. They don't even need Congress. They just need a few more Josh Divines. And they are counting on Democrats to be too slow, too cautious, or too focused on poll-tested economic messaging to act until it's too late.
But it's not too late—yet. Democrats must treat MAGA's fetal personhood agenda with the urgency it deserves. That means forcefully opposing judicial nominees, like Divine, who will carry this radical ideology onto the bench. It means calling out Trump's Project 2025 for what it is: an all-out assault on reproductive freedom disguised as bureaucratic reform. And it means reminding voters—every single day—that this issue is still on the ballot. Because the anti-abortion movement is still relentlessly coming for what is left of Americans' reproductive freedoms. And if we don't confront it head-on, we'll soon see that Dobbs was just the beginning.
Sign up for Slate's evening newsletter.
