1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio. 2 00:00:09,240 --> 00:00:13,520 Speaker 1: A judge struck down Michigan's nine thirty one anti abortion law, 3 00:00:13,720 --> 00:00:16,880 Speaker 1: the latest development over abortion rights in a state where 4 00:00:16,920 --> 00:00:19,959 Speaker 1: the issue is being argued in courtrooms and at the 5 00:00:20,000 --> 00:00:23,680 Speaker 1: ballot box. The law, which was dormant before the U. S. 6 00:00:23,680 --> 00:00:28,440 Speaker 1: Supreme Court overturned Roe Vue Wade in June, criminalizes abortion. 7 00:00:29,040 --> 00:00:32,000 Speaker 1: Joining me as an expert in the law of reproductive rights, 8 00:00:32,400 --> 00:00:36,480 Speaker 1: Mary Ziegler, a professor at u C. Davis Law School. So, Mary, 9 00:00:36,560 --> 00:00:39,599 Speaker 1: this is what they call a zombie abortion law. So 10 00:00:39,720 --> 00:00:42,840 Speaker 1: Michigan's abortion law is actually unusual, not in the sense 11 00:00:42,880 --> 00:00:46,360 Speaker 1: that the zombie law that was on the books was 12 00:00:46,400 --> 00:00:49,680 Speaker 1: not enforced during the time v. Wade was our law, 13 00:00:49,920 --> 00:00:52,640 Speaker 1: but then sprang back into effect. It's also unusual because 14 00:00:52,640 --> 00:00:55,240 Speaker 1: it was past the one, which was not a kind 15 00:00:55,280 --> 00:00:59,200 Speaker 1: of common time for states to be passing more sweeping 16 00:00:59,280 --> 00:01:02,800 Speaker 1: criminal aboard shan bands. But at the time Michigan lawmakers 17 00:01:02,840 --> 00:01:09,480 Speaker 1: were enhancing penalties and also expanding prohibitions earlier in pregnancy. 18 00:01:09,800 --> 00:01:11,640 Speaker 1: I mean, you know, this was also being done at 19 00:01:11,640 --> 00:01:15,400 Speaker 1: a time when the state was expanding the compulsory eugenic 20 00:01:15,480 --> 00:01:17,880 Speaker 1: sterilization laws. So that may have been kind of the 21 00:01:17,959 --> 00:01:20,520 Speaker 1: moment that we were looking at in terms of what 22 00:01:20,600 --> 00:01:24,319 Speaker 1: produced the law. So the judge's decision, her language was 23 00:01:24,440 --> 00:01:27,640 Speaker 1: quite strong. Tell us about you know how she came 24 00:01:27,680 --> 00:01:32,280 Speaker 1: to her decision. Well, the judge's decision essentially was based 25 00:01:32,280 --> 00:01:36,120 Speaker 1: on the idea that Michigan has more expansive ideas of 26 00:01:36,160 --> 00:01:40,400 Speaker 1: liberty and equality than the federal Constitution, and that therefore 27 00:01:40,480 --> 00:01:43,840 Speaker 1: the results under a Michigan state constitutional law would be 28 00:01:43,840 --> 00:01:46,720 Speaker 1: different than the one that the US Supreme Court reached 29 00:01:47,000 --> 00:01:51,280 Speaker 1: in Dabbs. There's so much litigation over abortion in Michigan 30 00:01:51,360 --> 00:01:55,240 Speaker 1: it's quite confusing. The Court of Appeals has ruled that 31 00:01:55,840 --> 00:02:01,040 Speaker 1: this judge's decisions aren't binding on county prosecutors. She disagrees, 32 00:02:01,720 --> 00:02:05,160 Speaker 1: but that's being appealed to the Michigan Supreme Court. If 33 00:02:05,200 --> 00:02:11,160 Speaker 1: her decision can't stop county prosecutors from prosecuting abortion providers, 34 00:02:11,160 --> 00:02:13,839 Speaker 1: which several of them has said that they intend to do, 35 00:02:14,480 --> 00:02:17,040 Speaker 1: how much of a victory is this, Well, I think 36 00:02:17,080 --> 00:02:20,040 Speaker 1: obviously this is just round one and this much longer 37 00:02:20,840 --> 00:02:25,080 Speaker 1: process of litigation. They are multiple lawsuits challenging the constitutionality 38 00:02:25,120 --> 00:02:27,800 Speaker 1: of the nineteen thirty one law. There's the question about 39 00:02:27,800 --> 00:02:31,280 Speaker 1: whether the judges' order is binding on county prosecutors, and 40 00:02:31,320 --> 00:02:32,960 Speaker 1: we know that in one way or another, all of 41 00:02:33,000 --> 00:02:35,360 Speaker 1: these diceuses are going to end up at the Michigan 42 00:02:35,639 --> 00:02:38,440 Speaker 1: States Supreme Court, and so I think the judges' decision 43 00:02:38,600 --> 00:02:41,519 Speaker 1: is mostly just you know, around fired in that broader 44 00:02:41,560 --> 00:02:44,240 Speaker 1: conflict that's ending at the Michigan Supreme Court. We all 45 00:02:44,240 --> 00:02:46,440 Speaker 1: know that sooner or later that's where we're going to 46 00:02:46,520 --> 00:02:49,400 Speaker 1: get a more complete resolution of all of this. An 47 00:02:49,440 --> 00:02:52,960 Speaker 1: amendment on the November ballot would add abortion rights to 48 00:02:53,000 --> 00:02:57,160 Speaker 1: the state constitution, so that would answer these questions, right. 49 00:02:57,400 --> 00:03:00,880 Speaker 1: It doesn't really resolve the question of whether, as it stands, 50 00:03:00,919 --> 00:03:04,480 Speaker 1: the one law violates Michigan State constitution, which is something 51 00:03:04,520 --> 00:03:06,920 Speaker 1: that the State Supreme Court may have a responsibility to 52 00:03:06,960 --> 00:03:10,119 Speaker 1: resolve regardless of the valid initiative. But I think it's 53 00:03:10,160 --> 00:03:12,920 Speaker 1: it's to say that we will have a lot of 54 00:03:12,960 --> 00:03:15,079 Speaker 1: action in Michigan for a long time, and I think 55 00:03:15,120 --> 00:03:19,200 Speaker 1: that makes sense because Michigan is both significant regionally as 56 00:03:19,240 --> 00:03:21,840 Speaker 1: a place that has offered a worstion access as other 57 00:03:21,880 --> 00:03:24,120 Speaker 1: parts of the Midwest have not, and also kind of 58 00:03:24,160 --> 00:03:26,320 Speaker 1: as a Belle Weather because the best pulling we have 59 00:03:26,360 --> 00:03:28,800 Speaker 1: would suggest that Michigan is a state where a majority 60 00:03:28,840 --> 00:03:31,720 Speaker 1: of voters would want a worship to be legal, and 61 00:03:31,800 --> 00:03:34,920 Speaker 1: yet this state has this law from one that it 62 00:03:34,960 --> 00:03:38,680 Speaker 1: will likely be enforced notwithstanding what voters may prefer. Do 63 00:03:38,760 --> 00:03:42,080 Speaker 1: you think that this judge's decision won't stand, then, well, 64 00:03:42,120 --> 00:03:43,920 Speaker 1: I don't know if it will stand. I think it's 65 00:03:43,960 --> 00:03:46,080 Speaker 1: just going to be kind of a way station on 66 00:03:46,120 --> 00:03:48,280 Speaker 1: the way to the Michigan Supreme Court. So I wouldn't 67 00:03:48,280 --> 00:03:51,720 Speaker 1: be surprised given the composition of the Michigan Supreme Court 68 00:03:51,960 --> 00:03:54,920 Speaker 1: and some of its past decisions. Um, it wouldn't be 69 00:03:54,960 --> 00:03:57,320 Speaker 1: a shock to me if the Michigan Supreme Court ultimately 70 00:03:57,320 --> 00:03:59,840 Speaker 1: agreed with this judge. All I was saying was that 71 00:04:00,200 --> 00:04:02,800 Speaker 1: one way or another, we won't really have a final 72 00:04:02,880 --> 00:04:05,880 Speaker 1: resolution on any of these questions that in full of 73 00:04:05,920 --> 00:04:08,440 Speaker 1: Michigan State Supreme Court ways. Then I want to turn 74 00:04:08,480 --> 00:04:10,640 Speaker 1: to another issue which is shaping up to be the 75 00:04:10,720 --> 00:04:14,320 Speaker 1: next battle ground in the fight over abortion rights, and 76 00:04:14,360 --> 00:04:20,120 Speaker 1: that's the issue of fetal personhood. Explain that concept, sure, so. Historically, 77 00:04:20,160 --> 00:04:23,000 Speaker 1: the anti abortion movement in the United States was not 78 00:04:23,480 --> 00:04:26,960 Speaker 1: focused on overruling Roe v. Wade in part because the 79 00:04:27,000 --> 00:04:31,640 Speaker 1: movement existed before Roe v. Wade came down. The movement 80 00:04:31,760 --> 00:04:34,040 Speaker 1: was sort of focused at the beginning of this idea 81 00:04:34,760 --> 00:04:39,480 Speaker 1: of recognizing the personhood of fetuses, which would mean not 82 00:04:39,560 --> 00:04:44,360 Speaker 1: that abortion was wrong, but that abortion was actually unconstitutional 83 00:04:44,520 --> 00:04:46,760 Speaker 1: because if a fetis is a person, then that person 84 00:04:46,800 --> 00:04:49,440 Speaker 1: has rights, for example, to do process in equal protection 85 00:04:49,520 --> 00:04:52,560 Speaker 1: under the law. That would make abortion problematic at best 86 00:04:52,600 --> 00:04:57,200 Speaker 1: and likely unconstitutional. So we've seen in the aftermath of 87 00:04:57,240 --> 00:04:59,839 Speaker 1: the Jobs decision a lot of anti aborship groups returning 88 00:05:00,000 --> 00:05:02,040 Speaker 1: of school, which really has kind of been the goal 89 00:05:02,080 --> 00:05:05,560 Speaker 1: all along. But when Roe was on the books, and 90 00:05:05,640 --> 00:05:08,080 Speaker 1: I think when the anti abortion movement was more interested 91 00:05:08,160 --> 00:05:11,719 Speaker 1: in playing to public opinion, even hear a lot about 92 00:05:11,720 --> 00:05:14,240 Speaker 1: it publicly, even though within the movement it was still 93 00:05:14,360 --> 00:05:17,320 Speaker 1: a priority. Now, obviously they're talking about it very publicly 94 00:05:17,360 --> 00:05:19,520 Speaker 1: and pushing forward in the states as well as potentially 95 00:05:19,520 --> 00:05:22,680 Speaker 1: at the federal level. Eleven states already have language in 96 00:05:22,720 --> 00:05:28,040 Speaker 1: their constitutions, laws, or policies granting rights to fetuses. Georgia 97 00:05:28,080 --> 00:05:32,080 Speaker 1: has the most expansive law on fetal personhood in the country. 98 00:05:32,640 --> 00:05:36,720 Speaker 1: The statute prohibits abortion after six weeks and recognizes the 99 00:05:36,760 --> 00:05:40,480 Speaker 1: fetus as a person at that point. It also provides 100 00:05:40,520 --> 00:05:44,200 Speaker 1: expectant mothers with a three thousand dollar tax credit per 101 00:05:44,279 --> 00:05:48,960 Speaker 1: fetus and allows them to file for child support during pregnancy. 102 00:05:49,320 --> 00:05:54,400 Speaker 1: It even instructs state officials to include fetuses in population counts. 103 00:05:54,440 --> 00:05:57,040 Speaker 1: I've been talking to Professor Mary Ziegler of u C. 104 00:05:57,240 --> 00:06:01,920 Speaker 1: Davis Law School. Mary, this george a law seems a 105 00:06:01,920 --> 00:06:05,200 Speaker 1: bit extreme, to say the least, would it stand up 106 00:06:05,200 --> 00:06:07,719 Speaker 1: in court? Well, I mean I think that Georgia law, 107 00:06:08,200 --> 00:06:10,520 Speaker 1: I mean so far has stood up in court. I 108 00:06:10,520 --> 00:06:13,880 Speaker 1: mean there have been challenges to that personhood law that 109 00:06:14,279 --> 00:06:18,200 Speaker 1: we're at least projected by the Eleventh Circuit Courts appeals. 110 00:06:18,480 --> 00:06:20,360 Speaker 1: And I mean I think the Georgia law is interesting 111 00:06:20,400 --> 00:06:24,799 Speaker 1: because most personhood measures we've seen so far have basically 112 00:06:24,839 --> 00:06:27,760 Speaker 1: just been abortion bands. Right, So, for example, South Carolina 113 00:06:27,800 --> 00:06:30,440 Speaker 1: is now considering a personhood law that's essentially just a 114 00:06:30,480 --> 00:06:33,960 Speaker 1: really sweeping abortion ban. George's law is interesting because it 115 00:06:34,000 --> 00:06:37,040 Speaker 1: seems to be trying to take the idea of fetal personhood. 116 00:06:37,279 --> 00:06:39,279 Speaker 1: I wouldn't say more seriously, but at least to be 117 00:06:39,320 --> 00:06:42,480 Speaker 1: more logically consistent. Right that vet this as a person 118 00:06:42,800 --> 00:06:45,240 Speaker 1: such that you can send people to prison. It may 119 00:06:45,320 --> 00:06:48,680 Speaker 1: be a person for reasons that could theoretically benefit a 120 00:06:48,760 --> 00:06:51,920 Speaker 1: pregnant person or woman, right, But I think the logistics 121 00:06:51,920 --> 00:06:55,320 Speaker 1: of actually working out how that will all work in 122 00:06:55,360 --> 00:06:58,960 Speaker 1: the real world is something the movement really hasn't done yet. 123 00:06:59,000 --> 00:07:01,400 Speaker 1: And I don't even know if a consensus within the 124 00:07:01,440 --> 00:07:05,640 Speaker 1: anti abortion movement about what fetal personhood is beyond just 125 00:07:05,839 --> 00:07:10,520 Speaker 1: a mandate to criminalize abortion. Arizona has a law granting 126 00:07:10,600 --> 00:07:16,360 Speaker 1: personhood defertilized eggs, embryos, and fetuses. So what does that 127 00:07:16,440 --> 00:07:20,240 Speaker 1: do if you have a fertilized egg, you decide you 128 00:07:20,280 --> 00:07:24,160 Speaker 1: don't want to go forward with with a pregnancy, and 129 00:07:24,560 --> 00:07:26,080 Speaker 1: you have to keep the egg. I mean, it just 130 00:07:26,240 --> 00:07:29,120 Speaker 1: raises a lot of questions in my mind. Yeah, I mean, 131 00:07:29,160 --> 00:07:32,080 Speaker 1: I don't know if this has really been worked out, right, 132 00:07:32,120 --> 00:07:35,200 Speaker 1: because I think that when the anti abortion movement first 133 00:07:35,200 --> 00:07:38,240 Speaker 1: developed this argument for personhood in the nineteen sixties, it 134 00:07:38,320 --> 00:07:42,720 Speaker 1: was entirely as an argument against the legalization of abortion. 135 00:07:43,320 --> 00:07:46,240 Speaker 1: And and then there was a moment in the seventies 136 00:07:46,320 --> 00:07:48,800 Speaker 1: when anti abortion leaders were hoping there would be a 137 00:07:48,840 --> 00:07:52,920 Speaker 1: constitutional amendment recognizing personhood, and at that point, you began 138 00:07:52,960 --> 00:07:56,120 Speaker 1: to get some conversations about Okay, well we're going to 139 00:07:56,200 --> 00:07:58,960 Speaker 1: recognize personhood, how are we going to actually implement that, 140 00:07:59,040 --> 00:08:01,560 Speaker 1: Who's going to be able to take care of these persons. 141 00:08:01,640 --> 00:08:04,640 Speaker 1: Is the government that's actually recognizing personhood going to do 142 00:08:04,680 --> 00:08:08,280 Speaker 1: anything or is it going to just offload that responsibility 143 00:08:08,400 --> 00:08:12,800 Speaker 1: onto onto women? Right? But you know, the constitutional amendment 144 00:08:12,840 --> 00:08:15,720 Speaker 1: wasn't going anywhere fast, and so those conversations sort of 145 00:08:15,760 --> 00:08:19,000 Speaker 1: stopped happening. Beyond the idea of personhood is a kind 146 00:08:19,040 --> 00:08:23,480 Speaker 1: of rallying cry or a justification for criminalization. So I 147 00:08:23,520 --> 00:08:27,120 Speaker 1: think we're at a moment now where there's definitely interest 148 00:08:27,160 --> 00:08:29,880 Speaker 1: in the anti abortion movement in personhood, but not consensus 149 00:08:29,880 --> 00:08:33,160 Speaker 1: on what it actually is. As you said before, these 150 00:08:33,440 --> 00:08:38,600 Speaker 1: fetal personhood laws, that's just a step to saying that 151 00:08:38,800 --> 00:08:42,760 Speaker 1: can have an abortion even if the mother's life is 152 00:08:42,800 --> 00:08:47,760 Speaker 1: in danger um, Right, So that's the goal. Yeah, I mean, 153 00:08:47,800 --> 00:08:49,520 Speaker 1: and I think I think there are a few sali 154 00:08:49,600 --> 00:08:52,240 Speaker 1: and things about that. One is that personhood is obviously 155 00:08:52,280 --> 00:08:54,880 Speaker 1: a national goal. This is not something the movement wants 156 00:08:54,920 --> 00:08:58,319 Speaker 1: to see stop in states like Georgian Arizona, because the 157 00:08:58,400 --> 00:09:00,360 Speaker 1: dream obviously if you have some kind of a national 158 00:09:00,360 --> 00:09:03,440 Speaker 1: personhood mandate is that there would no longer be you know, 159 00:09:03,520 --> 00:09:06,560 Speaker 1: the federal government allowed to authorize aborship pills, or there'll 160 00:09:06,640 --> 00:09:09,160 Speaker 1: no longer be aborship available in California and New York. 161 00:09:09,200 --> 00:09:13,040 Speaker 1: It would be illegal everywhere. And that's why there's some energy, 162 00:09:13,120 --> 00:09:17,839 Speaker 1: for example, in an executive order recognizing personhood, or a 163 00:09:18,000 --> 00:09:21,800 Speaker 1: federal statute recognizing personhood, or even we've already seen petitions 164 00:09:21,840 --> 00:09:24,680 Speaker 1: filed in the U. S. Supreme Court asking the court 165 00:09:24,760 --> 00:09:27,960 Speaker 1: to recognize that the idea of personhood is deeply rooted 166 00:09:27,960 --> 00:09:32,240 Speaker 1: in the nation's history and tradition. So I think long term, 167 00:09:32,280 --> 00:09:35,680 Speaker 1: you're you'd see this nationwide push. The other way personhood 168 00:09:35,679 --> 00:09:37,480 Speaker 1: comes out, as in the rise of this so called 169 00:09:37,520 --> 00:09:42,080 Speaker 1: abolitionist movement, which is a minority extremist faction within the 170 00:09:42,120 --> 00:09:45,240 Speaker 1: anti abortion movement that calls for the punishment of women. 171 00:09:45,920 --> 00:09:48,800 Speaker 1: They argue that, you know, a fetal personhood is a 172 00:09:48,920 --> 00:09:52,000 Speaker 1: thing that means that the killing of fetuses has to 173 00:09:52,040 --> 00:09:54,400 Speaker 1: be punished a homicide, just as the killing of anyone 174 00:09:54,400 --> 00:09:56,760 Speaker 1: else would be, and that anyone involved in that killing, 175 00:09:56,800 --> 00:09:59,439 Speaker 1: including women, has to be punished. So there are a 176 00:09:59,480 --> 00:10:01,679 Speaker 1: lot of move in parts and a lot of disagreements, 177 00:10:01,679 --> 00:10:05,480 Speaker 1: but I think the ultimate the reason personhood is compelling 178 00:10:05,520 --> 00:10:09,640 Speaker 1: to aborsition opponents, notwithstanding all these disagreements, is as as 179 00:10:09,679 --> 00:10:12,200 Speaker 1: a tool to an aborshion across the country, not just 180 00:10:12,280 --> 00:10:15,400 Speaker 1: in states that theoretically want to do it. In his 181 00:10:15,600 --> 00:10:22,840 Speaker 1: opinion in the Dobbs case, did Justice Samuel Alito referred 182 00:10:22,840 --> 00:10:28,040 Speaker 1: to personhood in any way I mean, not really Justice Alito. Um. 183 00:10:28,360 --> 00:10:32,679 Speaker 1: People who are personhood proponents like josh Hammer and Joshua 184 00:10:32,720 --> 00:10:36,000 Speaker 1: Cratick read Justice Alito as kind of giving a wink 185 00:10:36,080 --> 00:10:39,480 Speaker 1: and a nods personhood. There's nothing that explicit in the 186 00:10:39,559 --> 00:10:43,160 Speaker 1: Dobbs opinion. Justice Alito does refer to fetus is as 187 00:10:43,240 --> 00:10:47,160 Speaker 1: unborn children, and he's you know, quoting Mississippi statute when 188 00:10:47,200 --> 00:10:50,160 Speaker 1: he does that, but I think it's still strategic. Justice 189 00:10:50,160 --> 00:10:55,960 Speaker 1: Alito also differentiates a worshion from other substantive due process 190 00:10:56,040 --> 00:10:59,000 Speaker 1: rights like same sex marriage by emphasizing that abortion is 191 00:10:59,040 --> 00:11:01,439 Speaker 1: the taking of the life, which some saw as an 192 00:11:01,440 --> 00:11:04,559 Speaker 1: odd personhood. So I think, you know, you can really 193 00:11:05,000 --> 00:11:08,720 Speaker 1: read Dobbs either way, and personhood proponents have certainly taken 194 00:11:08,760 --> 00:11:10,880 Speaker 1: it as a positive sign. I think that the more 195 00:11:10,920 --> 00:11:13,480 Speaker 1: cautionary note, at least in the short term for person 196 00:11:13,520 --> 00:11:16,120 Speaker 1: and proponents as Brett Kavanaugh, who went to some length 197 00:11:16,200 --> 00:11:18,880 Speaker 1: to say, you know, the Constitution is neutral. It's not 198 00:11:18,960 --> 00:11:21,040 Speaker 1: pro life or pro choice, which some people took to 199 00:11:21,040 --> 00:11:23,760 Speaker 1: mean Justice Kavanaugh was not yet ready to hear a 200 00:11:23,800 --> 00:11:28,040 Speaker 1: personhood argument. Having said that, I think personhood proponents believe that, 201 00:11:28,600 --> 00:11:31,920 Speaker 1: you know, Justice Kavanaugh may be ready to reconsider, you know, 202 00:11:32,040 --> 00:11:33,880 Speaker 1: several years down the road. They don't take that as 203 00:11:33,880 --> 00:11:36,560 Speaker 1: a sort of permanent to you. They take it as 204 00:11:36,840 --> 00:11:39,240 Speaker 1: a kind of yellow light in the sense that he's 205 00:11:39,280 --> 00:11:41,720 Speaker 1: not ready to move quickly on that front. Wouldn't they 206 00:11:41,720 --> 00:11:47,800 Speaker 1: need some scientific evidence before they would declare that life 207 00:11:47,840 --> 00:11:51,160 Speaker 1: begins at conception? Yeah, I mean that there's there's some 208 00:11:51,240 --> 00:11:54,040 Speaker 1: real challenges about you know, standing and so on in 209 00:11:54,040 --> 00:11:56,880 Speaker 1: the In the pre ro era, abortion opponents asked to 210 00:11:56,880 --> 00:12:00,720 Speaker 1: be named guardians at LTEM, either for the fetus is 211 00:12:00,760 --> 00:12:04,480 Speaker 1: of specific patients or just you know, class action suits 212 00:12:04,520 --> 00:12:08,560 Speaker 1: on behalf of all fetuses potentially scheduled to be awarded 213 00:12:09,040 --> 00:12:13,280 Speaker 1: in particular jurisdictions. The petition before the Supreme Court now 214 00:12:13,360 --> 00:12:15,679 Speaker 1: also has to grapple with this question about, you know, 215 00:12:15,840 --> 00:12:19,560 Speaker 1: who's you know who's actually being represented, so that that's 216 00:12:19,600 --> 00:12:22,920 Speaker 1: going to be an ongoing challenge, and I think obviously 217 00:12:23,040 --> 00:12:27,040 Speaker 1: there's a certain amount of I think over confidence on 218 00:12:27,080 --> 00:12:30,160 Speaker 1: the part of the anti abortion movement now in terms 219 00:12:30,160 --> 00:12:32,560 Speaker 1: of the kind of politics it's practicing, the kind of 220 00:12:32,559 --> 00:12:38,480 Speaker 1: aspirations it's articulating, because I think the movement, after Dobbs, thinks, 221 00:12:38,520 --> 00:12:40,319 Speaker 1: you know, all things that are possible, and that may 222 00:12:40,440 --> 00:12:43,120 Speaker 1: still not be true, notwithstanding the fact that there's a 223 00:12:43,160 --> 00:12:48,120 Speaker 1: conservative supermajority on the Court, because if the Court declares 224 00:12:48,480 --> 00:12:52,640 Speaker 1: that a fetus is a person, then states who passed 225 00:12:52,760 --> 00:12:58,920 Speaker 1: laws that protect abortion those laws would be void. Right. Um, So, 226 00:12:59,000 --> 00:13:01,640 Speaker 1: I mean, and that's really the point, I think, because 227 00:13:02,320 --> 00:13:05,240 Speaker 1: if you're the anti abortion movement right now, you know 228 00:13:05,400 --> 00:13:07,800 Speaker 1: that you have laws that you like in a whole 229 00:13:07,880 --> 00:13:10,720 Speaker 1: variety of places, right but you know that in in America, 230 00:13:10,760 --> 00:13:13,320 Speaker 1: where travel is common in abortion pills can be bought 231 00:13:13,360 --> 00:13:15,079 Speaker 1: on the internet. It's going to be very hard to 232 00:13:15,120 --> 00:13:18,680 Speaker 1: actually make a meaningful change in abortion rates, especially if, 233 00:13:18,840 --> 00:13:21,120 Speaker 1: as is the case for the anti abortion movement, you're 234 00:13:21,120 --> 00:13:23,720 Speaker 1: aligned with a Republican party that does nothing to reduce 235 00:13:23,800 --> 00:13:26,240 Speaker 1: poverty or the reasons people may seek abortion when they 236 00:13:26,240 --> 00:13:28,800 Speaker 1: would otherwise prefer to carry a pregnancy to term. Right, 237 00:13:29,120 --> 00:13:33,360 Speaker 1: So I think again, the movement isn't really turn to 238 00:13:33,400 --> 00:13:36,520 Speaker 1: any of those anti poverty solutions. Instead, there's been this 239 00:13:36,720 --> 00:13:39,960 Speaker 1: escalating effort to prevent people from excessing abortion by any 240 00:13:40,000 --> 00:13:42,600 Speaker 1: means necessary. So that's why you're seeing some states talk, 241 00:13:42,679 --> 00:13:46,720 Speaker 1: for example, about barring travel for abortion or expand applying 242 00:13:46,760 --> 00:13:49,320 Speaker 1: their criminal laws out of state. But it would obviously 243 00:13:49,360 --> 00:13:52,400 Speaker 1: be easier in many ways if the movement just had 244 00:13:52,520 --> 00:13:55,719 Speaker 1: a single national band right, and then you wouldn't have 245 00:13:55,760 --> 00:13:57,360 Speaker 1: to worry about any of this. You could use the 246 00:13:57,400 --> 00:14:00,520 Speaker 1: federal government to enforce such a band on, even if 247 00:14:00,559 --> 00:14:03,280 Speaker 1: state officials were unwilling to do so, And so that 248 00:14:03,360 --> 00:14:08,200 Speaker 1: makes ironically, it kind of increases the movement's reliance on 249 00:14:08,320 --> 00:14:12,319 Speaker 1: controlling the Supreme Court, aligning with the National Republican Party, 250 00:14:12,320 --> 00:14:14,240 Speaker 1: all of these things. We were told we're all just 251 00:14:14,280 --> 00:14:16,480 Speaker 1: about getting rid of row in a postro America, the 252 00:14:16,480 --> 00:14:18,960 Speaker 1: anti abortion movement has I think even more interest than 253 00:14:18,960 --> 00:14:22,360 Speaker 1: those things. Thanks so much. Mary. That's Mary Ziegler, a 254 00:14:22,360 --> 00:14:26,800 Speaker 1: professor at U C. Davis Law School. Even before the 255 00:14:26,880 --> 00:14:31,320 Speaker 1: Supreme Court wiped out the constitutional right to abortion, the 256 00:14:31,440 --> 00:14:36,280 Speaker 1: prosecution of women suspected of purposefully or accidentally ending a 257 00:14:36,400 --> 00:14:40,800 Speaker 1: pregnancy was on the rise. According to reproductive rights lawyers. 258 00:14:41,000 --> 00:14:44,600 Speaker 1: There's been a movement to use state laws on child endangerment, 259 00:14:44,720 --> 00:14:49,600 Speaker 1: feed aside or murder to arrest women whose pregnancies ended prematurely, 260 00:14:49,840 --> 00:14:52,200 Speaker 1: and it may be a harbinger of what's to come. 261 00:14:52,520 --> 00:14:56,320 Speaker 1: Joining me is Bloomberg Legal reporter Patricia Hurtado. Even before 262 00:14:56,440 --> 00:14:59,480 Speaker 1: Roe was overturned, there have been cases where women have 263 00:14:59,560 --> 00:15:04,000 Speaker 1: been executed for miscarriages or stillbirths. Tell us about a 264 00:15:04,000 --> 00:15:06,360 Speaker 1: few of those well. One of them is a case 265 00:15:06,480 --> 00:15:10,600 Speaker 1: involving a woman named Dora Perez who went to the 266 00:15:10,720 --> 00:15:16,239 Speaker 1: hospital and pat a stillbirth, and later the health authorities 267 00:15:16,440 --> 00:15:20,760 Speaker 1: reported her to the local prosecutor and she was charged 268 00:15:20,800 --> 00:15:25,920 Speaker 1: originally with murdering her child for allegedly taking metamphetamine were 269 00:15:25,960 --> 00:15:29,480 Speaker 1: found in her system, not the child's system, so there 270 00:15:29,560 --> 00:15:33,200 Speaker 1: was allegations that she had basically killed her child, and 271 00:15:33,280 --> 00:15:36,240 Speaker 1: murder charges were filed against her. She ended up taking 272 00:15:36,360 --> 00:15:39,240 Speaker 1: a plea. She was facing like more than twenty years 273 00:15:39,280 --> 00:15:43,160 Speaker 1: in prison if she went to trial, so getting the 274 00:15:43,440 --> 00:15:46,440 Speaker 1: advice of a local lawyer that didn't know anything about 275 00:15:46,480 --> 00:15:49,920 Speaker 1: this she decided to plead guilty to a lower charge 276 00:15:49,920 --> 00:15:54,200 Speaker 1: of NaN's laughter for killing the stillborn child. It turns 277 00:15:54,200 --> 00:15:58,600 Speaker 1: out later when a real defense lawyers found out about 278 00:15:58,640 --> 00:16:01,720 Speaker 1: her case, she was laying wishing in jail for having 279 00:16:02,200 --> 00:16:05,560 Speaker 1: guilty to man spatter, and they started taking up her 280 00:16:05,600 --> 00:16:09,920 Speaker 1: case on appeal to overturn her conviction her guilty plea. 281 00:16:10,280 --> 00:16:13,720 Speaker 1: So that was finally resolved after four years. But it's 282 00:16:13,840 --> 00:16:17,160 Speaker 1: quite a long saga for this poor woman. Four years 283 00:16:17,160 --> 00:16:20,440 Speaker 1: in prison, and this is in California, which is in 284 00:16:20,520 --> 00:16:25,440 Speaker 1: the forefront of protecting abortion rights. Yeah, but Perez was 285 00:16:25,520 --> 00:16:29,320 Speaker 1: in the Central Valley of California, which is a very rural, 286 00:16:29,520 --> 00:16:35,240 Speaker 1: very poor, lots of immigrants, and pretty conservative area of California, 287 00:16:35,880 --> 00:16:39,840 Speaker 1: And so the d A prosecuted her for murdering her 288 00:16:39,960 --> 00:16:45,920 Speaker 1: stillborn child, and eventually the California Appeals Court concluded that 289 00:16:46,080 --> 00:16:50,280 Speaker 1: she couldn't have killed someone who was never born because 290 00:16:50,280 --> 00:16:52,680 Speaker 1: the child was still born, so that it was a 291 00:16:52,760 --> 00:16:57,480 Speaker 1: misapplication of the law and the law that Dora Perez 292 00:16:57,600 --> 00:17:00,960 Speaker 1: and this other woman, Chelsea Becker, were both executed in 293 00:17:01,080 --> 00:17:04,879 Speaker 1: California by the same DA. He said that it was 294 00:17:05,160 --> 00:17:08,399 Speaker 1: a law that was created in the nineteen seventies to 295 00:17:08,480 --> 00:17:12,639 Speaker 1: protect pregnant women from a third party attacking them and 296 00:17:12,720 --> 00:17:16,119 Speaker 1: killing the fetus. And it all started when a woman, 297 00:17:16,240 --> 00:17:18,840 Speaker 1: I believe she was a bank teller, she was shot 298 00:17:18,880 --> 00:17:21,840 Speaker 1: in the stomach by a bank robber and there was 299 00:17:21,880 --> 00:17:24,800 Speaker 1: such an outcry that her baby died because of this 300 00:17:24,880 --> 00:17:28,480 Speaker 1: bank robbery that they created this statute of the fetal 301 00:17:28,560 --> 00:17:32,119 Speaker 1: murder statute. But it only applies to a third party. 302 00:17:32,359 --> 00:17:37,240 Speaker 1: And what legal experts and abortion rights activists have said 303 00:17:37,480 --> 00:17:42,760 Speaker 1: is these are misapplications of laws originally designed to protect 304 00:17:42,760 --> 00:17:46,400 Speaker 1: the pregnant person and their child and now are actually 305 00:17:46,440 --> 00:17:50,840 Speaker 1: being applied against the pregnant person and giving the fetus 306 00:17:50,960 --> 00:17:54,560 Speaker 1: the same rights as the parents. Do any states have 307 00:17:54,720 --> 00:17:59,320 Speaker 1: laws that punish women who get abortions? Yeah, there are 308 00:17:59,400 --> 00:18:03,160 Speaker 1: states that have a totally outlawed abortions and they're still 309 00:18:03,200 --> 00:18:05,760 Speaker 1: fighting them out. Every day we see a new ruling 310 00:18:05,960 --> 00:18:10,119 Speaker 1: of how the state is interpreting the overturning of Rowe. 311 00:18:10,320 --> 00:18:14,520 Speaker 1: There's also prohibition against self managed abortions, and these would 312 00:18:14,520 --> 00:18:19,160 Speaker 1: be women who take those drugs to basically self induced 313 00:18:19,160 --> 00:18:23,520 Speaker 1: an abortion under a certain time period. There's an efforts 314 00:18:23,800 --> 00:18:27,359 Speaker 1: underway that is one of the major race women have 315 00:18:27,440 --> 00:18:31,359 Speaker 1: been using to manage their abortions because it's a lot 316 00:18:31,640 --> 00:18:34,320 Speaker 1: more convenient to do it chemically. But of course it 317 00:18:34,440 --> 00:18:36,960 Speaker 1: only takes place up to a certain period of time 318 00:18:37,000 --> 00:18:40,320 Speaker 1: it's allowable. What I was surprised to see June was 319 00:18:40,600 --> 00:18:46,159 Speaker 1: the amount of prosecutions under situations that just seemed like 320 00:18:46,520 --> 00:18:49,840 Speaker 1: it was bad science and the misapplication of the law. 321 00:18:50,440 --> 00:18:54,880 Speaker 1: For example, the mothers prosecuted for her baby dying bill born, 322 00:18:55,600 --> 00:18:58,920 Speaker 1: and they concluded that it was because there was mess 323 00:18:59,000 --> 00:19:02,280 Speaker 1: syntheta means her system, the mother's system, but there was 324 00:19:02,320 --> 00:19:04,960 Speaker 1: none detective in the baby. Her lawyers told me there's 325 00:19:05,000 --> 00:19:08,840 Speaker 1: no evidence that taking math amphetamine, although I'm not condoning it, 326 00:19:09,000 --> 00:19:12,280 Speaker 1: but that that would automatically result in the depth of 327 00:19:12,560 --> 00:19:17,640 Speaker 1: a fetus. And yet the prosecutor proffered and had an 328 00:19:17,640 --> 00:19:21,160 Speaker 1: expert witness that testified about this, And it wasn't until 329 00:19:21,280 --> 00:19:23,840 Speaker 1: later that her lawyers were able to take to the 330 00:19:23,880 --> 00:19:27,960 Speaker 1: appeals court that the baby's umbilical court had been pressed 331 00:19:28,040 --> 00:19:32,119 Speaker 1: against its neck during delivery, and that's shutting off of 332 00:19:32,280 --> 00:19:36,200 Speaker 1: bloods to the child would have killed it. So there's 333 00:19:36,359 --> 00:19:39,680 Speaker 1: there's a lot of unknowns with miscarriages and stillbirth some 334 00:19:41,160 --> 00:19:44,400 Speaker 1: of pregnancies and in miscarriage or stillbirth, And a lot 335 00:19:44,440 --> 00:19:47,400 Speaker 1: of the lawyers for these women say it's un unknowable, 336 00:19:47,600 --> 00:19:51,679 Speaker 1: and yet these prosecutors are using the law and making 337 00:19:52,160 --> 00:19:57,280 Speaker 1: conclusions and trying to convince judges to let these prosecutions 338 00:19:57,280 --> 00:19:59,800 Speaker 1: go for it. It's amazing to me because you know, 339 00:20:00,520 --> 00:20:03,720 Speaker 1: people don't know sometimes why they have a miscarriage. How 340 00:20:03,800 --> 00:20:07,120 Speaker 1: were these women discovered so to speak? Was it their 341 00:20:07,119 --> 00:20:11,199 Speaker 1: healthcare providers? Yeah, there's an indication now we have in 342 00:20:11,240 --> 00:20:14,520 Speaker 1: the case that this people might have remembered it. From May, 343 00:20:14,560 --> 00:20:17,760 Speaker 1: there was a woman named Lazelle Herrera in Texas and 344 00:20:17,920 --> 00:20:21,879 Speaker 1: she was arrested and charged with the murder for a 345 00:20:21,920 --> 00:20:26,960 Speaker 1: self induced abortion. Obstensively, I understand that she was apparently 346 00:20:27,040 --> 00:20:31,840 Speaker 1: taking you know, some medication like methopress down to enter pregnancy. 347 00:20:31,960 --> 00:20:35,040 Speaker 1: She went to the hospital and we understand from the 348 00:20:35,080 --> 00:20:39,440 Speaker 1: local district attorney who indicted her for murder that he 349 00:20:39,520 --> 00:20:43,439 Speaker 1: was informed by hospital staff. Now, the thing was extraordinary 350 00:20:43,440 --> 00:20:47,440 Speaker 1: about Lazelle Herrera's case, which was quickly made public by 351 00:20:47,720 --> 00:20:51,200 Speaker 1: an abortion rights activists and who came to her aid, 352 00:20:51,840 --> 00:20:55,280 Speaker 1: I mean, this woman was being held on murder charges 353 00:20:55,440 --> 00:20:59,359 Speaker 1: and something like five hundred thousand dollars dale in jail, 354 00:21:00,119 --> 00:21:04,840 Speaker 1: and allegedly she was reported because Texas has this vigilante 355 00:21:04,960 --> 00:21:08,800 Speaker 1: law called Senate Bill eight. But that's a civil statute 356 00:21:08,920 --> 00:21:12,280 Speaker 1: that allows people if they believe someone is helping someone 357 00:21:12,320 --> 00:21:15,560 Speaker 1: get an abortion, they can file a suit and file 358 00:21:15,600 --> 00:21:18,879 Speaker 1: a claim. But it's not a criminal statute. And yet 359 00:21:18,920 --> 00:21:22,919 Speaker 1: here's this poor woman what zal Herrera was prosecuted for 360 00:21:23,080 --> 00:21:26,080 Speaker 1: murder and the d A got an indictment against her 361 00:21:26,480 --> 00:21:30,520 Speaker 1: for murdering her fetus for a self induced abortion. But 362 00:21:30,840 --> 00:21:33,639 Speaker 1: there's a difference between a criminal statute and a civil 363 00:21:33,680 --> 00:21:38,119 Speaker 1: statute like SBA. Eventually there was such an outcry he 364 00:21:38,240 --> 00:21:41,199 Speaker 1: had to drop the charges. But the idea that he 365 00:21:41,240 --> 00:21:44,840 Speaker 1: could get an indictment based on a civil statute is 366 00:21:44,920 --> 00:21:48,200 Speaker 1: pretty extraordinary when you think about it. I remember that case. 367 00:21:48,400 --> 00:21:51,040 Speaker 1: It was incredibly odd that he would even try to 368 00:21:51,119 --> 00:21:54,600 Speaker 1: do that. Now, as you mentioned, many of the arrests 369 00:21:54,640 --> 00:21:58,680 Speaker 1: are related to drug use. Yeah, our reportings found out, 370 00:21:58,800 --> 00:22:01,320 Speaker 1: and it was kind of shocking to me that their 371 00:22:01,400 --> 00:22:06,439 Speaker 1: statutes on the books designed to protect children, toddlers whose 372 00:22:06,440 --> 00:22:09,760 Speaker 1: parents maybe operate a meth lab. So these laws were 373 00:22:09,800 --> 00:22:14,000 Speaker 1: created child endangerment laws to protect children from you know, say, 374 00:22:14,359 --> 00:22:17,760 Speaker 1: getting burned or in an explosion, or getting exposed to 375 00:22:17,800 --> 00:22:21,920 Speaker 1: toxic substances because their parents are making meth amphetamines in 376 00:22:21,960 --> 00:22:25,440 Speaker 1: the garage. But what these laws are now being used for, 377 00:22:25,920 --> 00:22:28,879 Speaker 1: which is kind of like that third party example I 378 00:22:28,960 --> 00:22:32,280 Speaker 1: gave about laws originally designed to protect the pregnant woman 379 00:22:32,320 --> 00:22:35,520 Speaker 1: and her fetus are now being used against the pregnant person. 380 00:22:36,000 --> 00:22:39,919 Speaker 1: And they're saying that the chemical endangerment or the child 381 00:22:40,080 --> 00:22:45,800 Speaker 1: endangerment is being done by the mother who exposes the child. 382 00:22:46,119 --> 00:22:48,440 Speaker 1: And some examples were given to me by some of 383 00:22:48,480 --> 00:22:51,639 Speaker 1: the lawyers. They've had cases where the woman took a 384 00:22:51,760 --> 00:22:55,240 Speaker 1: valiant that authorized by her doctor, or the woman was 385 00:22:55,320 --> 00:22:58,840 Speaker 1: like saying, a car accident and took a painkiller, and 386 00:22:58,880 --> 00:23:03,800 Speaker 1: then there's an episode of a miscarriageter still burst inexplicably right, 387 00:23:04,240 --> 00:23:06,560 Speaker 1: And then the woman goes to the hospital and then 388 00:23:06,560 --> 00:23:09,640 Speaker 1: suddenly they asked her what did you take? And then 389 00:23:09,640 --> 00:23:12,320 Speaker 1: she says, well that I took the prescription drug medication 390 00:23:12,400 --> 00:23:15,320 Speaker 1: given to me by my doctor, and they say, ah ha, 391 00:23:15,800 --> 00:23:19,360 Speaker 1: but the mother is taking it for herself. And one 392 00:23:19,440 --> 00:23:22,920 Speaker 1: court opinion I saw that analyze this said, if we 393 00:23:23,040 --> 00:23:27,080 Speaker 1: take this to the logical conclusion that the prosecutor had 394 00:23:27,160 --> 00:23:30,440 Speaker 1: operated under, then it would mean that any mother who 395 00:23:30,480 --> 00:23:35,520 Speaker 1: even takes an aspirant might face prosecution for endangering the 396 00:23:35,640 --> 00:23:38,879 Speaker 1: child under this theory, which is not what the laws 397 00:23:38,920 --> 00:23:43,720 Speaker 1: were designed to do. But it's becoming that the unborn 398 00:23:43,840 --> 00:23:48,119 Speaker 1: fetus is being given fetal personhood at the same level 399 00:23:48,320 --> 00:23:52,760 Speaker 1: as the pregnant person. Abortion rights and reproductive rights lawyers 400 00:23:52,800 --> 00:23:56,879 Speaker 1: have told me this is now going to possibly throw 401 00:23:57,000 --> 00:24:01,120 Speaker 1: everything into an uproar because you'll have is, you might 402 00:24:01,200 --> 00:24:04,959 Speaker 1: have a mother within a topic pregnancy, and now they 403 00:24:05,000 --> 00:24:08,520 Speaker 1: may not be able to perform the abortion that's necessary, 404 00:24:08,600 --> 00:24:12,240 Speaker 1: would never be a viable fetus, and the mother's life 405 00:24:12,280 --> 00:24:15,520 Speaker 1: may be in danger because of this new thinking that 406 00:24:15,600 --> 00:24:19,040 Speaker 1: fetal personhood, it's the pregnant woman's life equated the same 407 00:24:19,080 --> 00:24:23,080 Speaker 1: way as the fetix. About women have been arrested or 408 00:24:23,280 --> 00:24:27,359 Speaker 1: charged from two thousand six to two thousand twenty for 409 00:24:27,480 --> 00:24:31,880 Speaker 1: their actions during pregnancy. These lawyers cities women. These are 410 00:24:31,920 --> 00:24:36,760 Speaker 1: the lawyers and the trenches and their advocates for women say, listen, 411 00:24:37,160 --> 00:24:39,720 Speaker 1: how is it that this is happening? But not only 412 00:24:39,920 --> 00:24:43,080 Speaker 1: is it happening, that's happening at an escalated rate, and 413 00:24:43,080 --> 00:24:45,480 Speaker 1: they say that this is part of this whole effort 414 00:24:45,960 --> 00:24:49,399 Speaker 1: not only to undo row, but also the push. You 415 00:24:49,440 --> 00:24:53,520 Speaker 1: can see that suddenly fetal personhood is a fundamental right, 416 00:24:53,720 --> 00:24:56,680 Speaker 1: that the fetis has the same right as its mother, 417 00:24:57,080 --> 00:25:00,840 Speaker 1: and that you're gonna apply laws that originally we're designed 418 00:25:00,840 --> 00:25:04,520 Speaker 1: to protect the pregnant person from attacks by an outside 419 00:25:04,560 --> 00:25:06,760 Speaker 1: third party, and now you're going to use them against 420 00:25:06,840 --> 00:25:09,840 Speaker 1: the pregnant person. So those are the kinds of things 421 00:25:09,880 --> 00:25:13,320 Speaker 1: that we've seen that are being used currently and have 422 00:25:13,520 --> 00:25:17,200 Speaker 1: been used on an increasing basis. It's kind of staggering. 423 00:25:17,560 --> 00:25:21,880 Speaker 1: Thanks pat. That's Bloomberg Legal reporter Patricia Hurtado, and that's 424 00:25:21,880 --> 00:25:24,520 Speaker 1: it for this edition of the Bloomberg Law Show. Remember 425 00:25:24,560 --> 00:25:26,600 Speaker 1: you can always get the latest legal news on our 426 00:25:26,640 --> 00:25:30,760 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 427 00:25:31,000 --> 00:25:36,040 Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law, 428 00:25:36,440 --> 00:25:39,040 Speaker 1: And remember to tune into The Bloomberg Law Show every 429 00:25:39,080 --> 00:25:42,960 Speaker 1: week night at ten BM Wall Street Time. I'm June Grosso, 430 00:25:43,119 --> 00:25:44,720 Speaker 1: and you're listening to Bloomberg