1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio. 2 00:00:08,640 --> 00:00:12,480 Speaker 2: It's been almost three years since the Supreme Court overturned 3 00:00:12,640 --> 00:00:16,680 Speaker 2: Roe v. Wade and eliminated the constitutional right to abortion. 4 00:00:17,239 --> 00:00:20,799 Speaker 2: But that wasn't the endpoint for the anti abortion movement. 5 00:00:21,480 --> 00:00:25,960 Speaker 2: The next frontier is the battleover fetal personhood. That's according 6 00:00:26,000 --> 00:00:29,440 Speaker 2: to an expert on the law of reproduction, Mary Ziegler, 7 00:00:29,520 --> 00:00:33,200 Speaker 2: a professor at UC Davis Law School. Her latest book 8 00:00:33,240 --> 00:00:38,360 Speaker 2: is entitled Personhood, the New Civil War over Reproduction. So, Mary, 9 00:00:38,400 --> 00:00:41,400 Speaker 2: the idea of fetal personhood, I'm not sure I heard 10 00:00:41,400 --> 00:00:44,519 Speaker 2: about it so much until the last few years, but 11 00:00:44,600 --> 00:00:46,680 Speaker 2: you write that it's been the goal of the anti 12 00:00:46,760 --> 00:00:49,440 Speaker 2: abortion movement since the nineteen sixties. 13 00:00:49,880 --> 00:00:52,160 Speaker 3: Yeah, that's right, And I think in part you didn't 14 00:00:52,159 --> 00:00:55,360 Speaker 3: stir about it because the anti abortion movement was fixated 15 00:00:55,440 --> 00:00:58,400 Speaker 3: on a shorter term, kind of more realistical, which was 16 00:00:58,440 --> 00:01:02,600 Speaker 3: the reversal of Weighe. So people who saw Row as 17 00:01:02,680 --> 00:01:05,200 Speaker 3: kind of being the bulls eye weren't wrong. But I 18 00:01:05,200 --> 00:01:07,760 Speaker 3: think what's become clear in the past few years was 19 00:01:08,200 --> 00:01:11,279 Speaker 3: that that was never the endgame for the anti worship movement. 20 00:01:11,800 --> 00:01:14,400 Speaker 3: They were not going to be content with letting each 21 00:01:14,480 --> 00:01:18,080 Speaker 3: state set its own policy, and that really is clear 22 00:01:18,120 --> 00:01:20,120 Speaker 3: when you dig into the history of where the movement 23 00:01:20,200 --> 00:01:22,480 Speaker 3: came from and what it's been pursuing from the beginning. 24 00:01:22,720 --> 00:01:24,319 Speaker 1: Tell us a little bit about that history. 25 00:01:24,760 --> 00:01:26,840 Speaker 3: Yeah, so, just to start out with the levels that 26 00:01:26,959 --> 00:01:29,399 Speaker 3: what fetal person put is is the claim not that 27 00:01:29,880 --> 00:01:32,839 Speaker 3: just that human life begins when an egg is fertilized, 28 00:01:32,959 --> 00:01:35,520 Speaker 3: or that when an egg is fertilized you have a separate, 29 00:01:35,600 --> 00:01:39,440 Speaker 3: unique human being, it's also the claim that when that happens, 30 00:01:39,480 --> 00:01:44,840 Speaker 3: constitutional rights begin. So initially that argument was kind of 31 00:01:44,880 --> 00:01:48,720 Speaker 3: a strategy. So the anti worship movement in the sixties 32 00:01:48,800 --> 00:01:52,200 Speaker 3: was starting to see states reform their criminal bands, which 33 00:01:52,200 --> 00:01:55,360 Speaker 3: all dated from the nineteenth century, and arguments that had 34 00:01:55,360 --> 00:01:58,000 Speaker 3: worked for decades to back up those bands were starting 35 00:01:58,000 --> 00:02:01,640 Speaker 3: to fail. Arguments like well, if wegalize abortion, people will 36 00:02:01,640 --> 00:02:04,600 Speaker 3: have sex outside of marriage, or we don't really need 37 00:02:04,600 --> 00:02:08,639 Speaker 3: to legalize abortion because pregnancy isn't that unsafe anymore. Those 38 00:02:08,760 --> 00:02:12,720 Speaker 3: arguments were falling flat. So some anti abortion activists, most 39 00:02:12,720 --> 00:02:15,079 Speaker 3: of whom were Catholic at the time, began arguing that 40 00:02:15,120 --> 00:02:18,640 Speaker 3: you just couldn't liberalize abortion laws because it was unconstitutional. 41 00:02:19,280 --> 00:02:21,960 Speaker 3: But then these arguments kind of took on a life 42 00:02:21,960 --> 00:02:27,320 Speaker 3: of their own. They became compelling to a range of conservatives, 43 00:02:27,360 --> 00:02:30,920 Speaker 3: not just conservative Catholics. They really kind of lasted in 44 00:02:30,919 --> 00:02:34,200 Speaker 3: the anti abortion movement for more than half a century 45 00:02:34,200 --> 00:02:37,320 Speaker 3: as a rallying cry, even as I think it's pretty 46 00:02:37,320 --> 00:02:40,000 Speaker 3: clear today and it was clear in the past, that 47 00:02:40,080 --> 00:02:43,320 Speaker 3: people in the movement and outside the movement disagree on 48 00:02:43,760 --> 00:02:45,799 Speaker 3: what it means to value feel life and what you'd 49 00:02:45,800 --> 00:02:47,640 Speaker 3: have to do to enforce that, like what it would 50 00:02:47,639 --> 00:02:50,560 Speaker 3: mean on the ground for ivs, for contraception, for abortion, 51 00:02:50,840 --> 00:02:52,639 Speaker 3: even for pregnancy. 52 00:02:52,720 --> 00:02:56,280 Speaker 2: So how do they move together if they don't have 53 00:02:56,400 --> 00:02:59,880 Speaker 2: a clear definition of what fetal personhood means. 54 00:03:00,560 --> 00:03:03,360 Speaker 3: Well, So for a long time, having a clear definition 55 00:03:03,520 --> 00:03:07,119 Speaker 3: was an advantage, right, because female personhood for a long 56 00:03:07,120 --> 00:03:10,120 Speaker 3: time was sort of like the moonshot, right, like the 57 00:03:10,200 --> 00:03:13,760 Speaker 3: sort of dream that united everybody in the movement, and 58 00:03:13,840 --> 00:03:16,080 Speaker 3: so no one really had to figure out the nitty 59 00:03:16,120 --> 00:03:18,560 Speaker 3: gritty about what it would mean first a IBF for 60 00:03:19,040 --> 00:03:22,120 Speaker 3: punishing women for abortion, because no one was going to 61 00:03:22,160 --> 00:03:24,120 Speaker 3: be able to do any of those things because of 62 00:03:24,240 --> 00:03:27,399 Speaker 3: ro What we've seen in a way now is that 63 00:03:27,760 --> 00:03:30,680 Speaker 3: it's possible that the US Supreme Court could recognize feal 64 00:03:30,760 --> 00:03:35,280 Speaker 3: person It's possible that state supreme courts could accord fetus's 65 00:03:35,400 --> 00:03:40,040 Speaker 3: constitutional rights. It's possible that states could fill any clearly 66 00:03:40,120 --> 00:03:42,800 Speaker 3: enforceable fetal rights. So now all these questions that were 67 00:03:42,880 --> 00:03:45,600 Speaker 3: wants to sort of like an abstraction for people in 68 00:03:45,600 --> 00:03:49,240 Speaker 3: the anti abortion movement are now a kind of pressing priority. 69 00:03:49,720 --> 00:03:52,040 Speaker 3: And that's why we're starting to see more conflict about it. 70 00:03:52,120 --> 00:03:55,040 Speaker 3: Right before everybody could kind of table those disagreements and 71 00:03:56,000 --> 00:03:59,640 Speaker 3: get together and mobilize around the big picture. And that's 72 00:03:59,720 --> 00:04:01,760 Speaker 3: no underly ef feasible alternative. 73 00:04:02,440 --> 00:04:04,040 Speaker 1: More than and I didn't realize this either. 74 00:04:04,320 --> 00:04:07,800 Speaker 2: More than a third of the states have fetal personhood 75 00:04:08,360 --> 00:04:10,360 Speaker 2: laws on the books, and some have been on the 76 00:04:10,400 --> 00:04:11,520 Speaker 2: books for decades. 77 00:04:12,240 --> 00:04:13,680 Speaker 1: Where does that fit in. 78 00:04:14,400 --> 00:04:16,919 Speaker 3: It's really unclear what's going to happen with those laws. 79 00:04:16,960 --> 00:04:20,039 Speaker 3: So how those laws got going for a time was 80 00:04:20,080 --> 00:04:24,400 Speaker 3: that anti abortion groups thought that they needed to kind 81 00:04:24,400 --> 00:04:27,560 Speaker 3: of plant the seeds for constitutional fetal rights in areas 82 00:04:27,560 --> 00:04:30,119 Speaker 3: that didn't have anything to do about abortion, because roe 83 00:04:30,160 --> 00:04:34,719 Speaker 3: was this stumbling lack. So they began to, for example, 84 00:04:34,760 --> 00:04:39,000 Speaker 3: focus on fetal homicide laws or laws that allowed wrongful 85 00:04:39,040 --> 00:04:42,440 Speaker 3: death suits in the case of someone who died in utero. 86 00:04:42,600 --> 00:04:42,760 Speaker 4: Right. 87 00:04:42,839 --> 00:04:46,360 Speaker 3: So they're all of these strategies that feeded these laws 88 00:04:46,360 --> 00:04:49,920 Speaker 3: in places that have protections in some instances for legal 89 00:04:49,960 --> 00:04:53,159 Speaker 3: abortion or IBF were both, but a lot of the 90 00:04:53,240 --> 00:04:56,360 Speaker 3: time it's sort of unclear how enforceable some of these 91 00:04:56,440 --> 00:04:58,680 Speaker 3: laws are. Some of them just sound like throat clearing 92 00:04:58,720 --> 00:05:01,160 Speaker 3: about the value of unborn la some of them are 93 00:05:01,200 --> 00:05:04,000 Speaker 3: just narrow They apply in a specific legal context but 94 00:05:04,080 --> 00:05:07,560 Speaker 3: not outside of it. So one of the really unpredictable 95 00:05:07,600 --> 00:05:10,920 Speaker 3: things is which of these laws are state courts going 96 00:05:10,960 --> 00:05:15,760 Speaker 3: to turn into meaningful limits and which are going to 97 00:05:15,800 --> 00:05:19,080 Speaker 3: just remain kind of symbolic. So last year, when the 98 00:05:19,080 --> 00:05:22,760 Speaker 3: Alabama Supreme Court issued a ruling that essentially halted IVF 99 00:05:22,839 --> 00:05:25,320 Speaker 3: in that state, the state law had been on the 100 00:05:25,320 --> 00:05:27,840 Speaker 3: books for a while, right, but no one had really 101 00:05:27,920 --> 00:05:30,839 Speaker 3: known that the state supreme Court would or could turn 102 00:05:30,880 --> 00:05:33,720 Speaker 3: it into something that essentially ended yes in the state 103 00:05:33,800 --> 00:05:36,120 Speaker 3: for a time. So we're living in a reality now 104 00:05:36,160 --> 00:05:38,640 Speaker 3: where anti abortion groups are trying to get more of 105 00:05:38,680 --> 00:05:41,400 Speaker 3: these personhood laws on the books when we already have 106 00:05:41,520 --> 00:05:43,599 Speaker 3: a lot of personhood laws on the books, and we 107 00:05:43,680 --> 00:05:46,880 Speaker 3: just don't know how state courts and ultimately federal courts 108 00:05:46,880 --> 00:05:49,320 Speaker 3: are going to look at them. The endgame there, of course, 109 00:05:49,440 --> 00:05:52,720 Speaker 3: is not just a state by state approach either. It's 110 00:05:52,800 --> 00:05:56,039 Speaker 3: to create a kind of conservative chorus of demands for 111 00:05:56,120 --> 00:06:00,159 Speaker 3: fetal personhood that anti abortion lawyers can point to in 112 00:06:00,200 --> 00:06:03,280 Speaker 3: the US Supreme Court, just as they pointed to red 113 00:06:03,279 --> 00:06:06,640 Speaker 3: state demands to overall row right. So the goal eventually 114 00:06:06,720 --> 00:06:09,200 Speaker 3: is a federal judicial decision, not a state outcome. But 115 00:06:09,279 --> 00:06:11,280 Speaker 3: the state outcomes are part of that bigger picture. 116 00:06:12,120 --> 00:06:16,760 Speaker 2: Is there disagreement about the legal path to secure fetal 117 00:06:16,800 --> 00:06:19,200 Speaker 2: personhood or has there been disagreement? 118 00:06:20,080 --> 00:06:20,240 Speaker 4: Yeah? 119 00:06:20,320 --> 00:06:22,320 Speaker 3: There has I mean I think at the moment there's 120 00:06:22,360 --> 00:06:26,640 Speaker 3: definitely a focus on the federal judiciary for the unsurprising 121 00:06:26,720 --> 00:06:30,400 Speaker 3: reason that anti abortion groups have been taking some losses 122 00:06:30,800 --> 00:06:34,520 Speaker 3: when it comes to voters. Right, voters have been reluctant 123 00:06:34,560 --> 00:06:37,919 Speaker 3: to even embrace the bands that are already on the books, 124 00:06:38,000 --> 00:06:41,919 Speaker 3: much less fetal personhood, which, if you understand it the 125 00:06:41,960 --> 00:06:47,760 Speaker 3: way abortion opponents have, it could essentially make it unconstitutional 126 00:06:48,560 --> 00:06:51,159 Speaker 3: for a blue state or swing state or a red 127 00:06:51,200 --> 00:06:55,120 Speaker 3: state to pass about initiative unreproductive rights or a law 128 00:06:55,160 --> 00:06:58,480 Speaker 3: protecting ibs. So abortion opponents, I think are aware that 129 00:06:58,480 --> 00:07:00,800 Speaker 3: that would not be an easy agenda to sell the 130 00:07:00,880 --> 00:07:04,680 Speaker 3: voters right now, So there's broad consensus that the only 131 00:07:04,760 --> 00:07:07,680 Speaker 3: way forward is to rely on the US Supreme Court. 132 00:07:07,760 --> 00:07:11,000 Speaker 3: There's only five conservative justices you need to persuade to 133 00:07:11,040 --> 00:07:14,440 Speaker 3: get that outcome versus you know, a majority of American 134 00:07:14,520 --> 00:07:19,440 Speaker 3: voters in any state, much less nationwide. So there's consensus there, 135 00:07:19,480 --> 00:07:23,080 Speaker 3: But once you get beyond that big picture, there's a 136 00:07:23,120 --> 00:07:26,040 Speaker 3: lot of infighting, and I think we started to see 137 00:07:26,040 --> 00:07:28,280 Speaker 3: that more and more with each legislative session. 138 00:07:28,920 --> 00:07:32,480 Speaker 2: So let's discuss the Dobbs decision, which, for the first 139 00:07:32,560 --> 00:07:36,320 Speaker 2: time the Court took away a constitutional right and what 140 00:07:36,480 --> 00:07:40,440 Speaker 2: many see as a flawed opinion by Justice Samuel Alito, 141 00:07:41,080 --> 00:07:44,800 Speaker 2: particularly with his interpretation of history. Yeah. 142 00:07:44,880 --> 00:07:47,760 Speaker 3: Well, one of the really interesting features of Dobbs is, 143 00:07:48,160 --> 00:07:53,000 Speaker 3: on the one hand, Dobbs doesn't say anything about fetal rights, 144 00:07:53,240 --> 00:07:55,600 Speaker 3: and that was surprising, right. I think most people were 145 00:07:55,640 --> 00:07:59,600 Speaker 3: expecting at least one of the justices to reference these 146 00:07:59,640 --> 00:08:02,480 Speaker 3: theories about fetal rights that abortion opponents had developed and 147 00:08:02,520 --> 00:08:04,520 Speaker 3: that we're in the Amikus briefs or friend of Court 148 00:08:04,560 --> 00:08:07,360 Speaker 3: priests and dogs. On the other hand, the account of 149 00:08:07,440 --> 00:08:11,800 Speaker 3: history that Justice Alito gives in Dobbs, which is essentially 150 00:08:12,120 --> 00:08:16,240 Speaker 3: in Justice Alito's version of things, abortion was always criminalized, 151 00:08:16,320 --> 00:08:19,640 Speaker 3: or at least viewed with disfavor, and that both establishes 152 00:08:19,680 --> 00:08:21,960 Speaker 3: that there couldn't be a right to abortion in the 153 00:08:21,960 --> 00:08:26,600 Speaker 3: eyes of personhood proponents. It also suggests that the framers 154 00:08:26,640 --> 00:08:31,360 Speaker 3: of the Constitution viewed thetuses as people with constitutional rights. Now, 155 00:08:31,960 --> 00:08:34,520 Speaker 3: you know, the Court doesn't formally embrace that, but it's 156 00:08:34,559 --> 00:08:37,640 Speaker 3: easy to see a parallel between the way people who 157 00:08:37,760 --> 00:08:40,560 Speaker 3: embrace fetal personhood see our past and the way Dobbs 158 00:08:40,600 --> 00:08:43,520 Speaker 3: portrays our past, which is one of the reasons we've 159 00:08:43,559 --> 00:08:46,800 Speaker 3: seen I think people get energized about the idea that 160 00:08:47,240 --> 00:08:49,840 Speaker 3: the Supreme Court may embrace this idea of fetal person 161 00:08:49,880 --> 00:08:52,240 Speaker 3: had later, even if it's not likely to do so today. 162 00:08:53,240 --> 00:08:55,760 Speaker 2: You know, I would say that that's like a far 163 00:08:55,840 --> 00:08:59,520 Speaker 2: flung theory and the Court won't embrace it. But then 164 00:08:59,559 --> 00:09:02,280 Speaker 2: I thought that the Court would not get rid of 165 00:09:02,320 --> 00:09:05,880 Speaker 2: the constitutional right to abortion. I mean, have you seen 166 00:09:06,160 --> 00:09:09,920 Speaker 2: in the concurrences or the sense of any of the 167 00:09:10,120 --> 00:09:12,960 Speaker 2: justices this embrace of fetal personhood. 168 00:09:13,200 --> 00:09:15,120 Speaker 1: I think Alito did say, correct me. 169 00:09:15,120 --> 00:09:18,760 Speaker 2: If I'm wrong in Dabbs something like life begins at conception. 170 00:09:19,600 --> 00:09:21,440 Speaker 3: Yeah, I mean it's hard to say. I think you're 171 00:09:21,480 --> 00:09:24,319 Speaker 3: really tewa freading if you're trying to get a definitive account. 172 00:09:24,360 --> 00:09:26,600 Speaker 3: I think the problem for the fetal person to movement 173 00:09:26,600 --> 00:09:29,600 Speaker 3: at the moment in some ways is justice spread Kavanaugh, 174 00:09:29,640 --> 00:09:31,920 Speaker 3: who wrote a concurrence in Dobbs, more or less committing 175 00:09:32,000 --> 00:09:34,920 Speaker 3: himself to the position that the Constitution doesn't protect any 176 00:09:35,000 --> 00:09:37,720 Speaker 3: right having to do with abortion, whether a fetal right 177 00:09:37,840 --> 00:09:40,800 Speaker 3: or right for women or anything. Really, and so that 178 00:09:40,840 --> 00:09:44,120 Speaker 3: doesn't mean Kavanaugh can't change his mind or backpedal, but 179 00:09:44,280 --> 00:09:46,760 Speaker 3: it's going to take I think time and lots of 180 00:09:46,800 --> 00:09:50,240 Speaker 3: this sort of state by state work to convince him 181 00:09:50,240 --> 00:09:53,319 Speaker 3: to change his mind. Having said that, the majority in Dogs, 182 00:09:53,360 --> 00:09:57,120 Speaker 3: as you point out, relies a lot on the importance 183 00:09:57,160 --> 00:09:59,559 Speaker 3: of unborn life. And how that shows up in particular 184 00:09:59,640 --> 00:10:02,520 Speaker 3: is the court work is accused by the descending justices 185 00:10:02,600 --> 00:10:05,760 Speaker 3: and some of the parties of threatening other rights like 186 00:10:05,800 --> 00:10:08,560 Speaker 3: the right to contraception, the right for same sex marriage, 187 00:10:08,760 --> 00:10:12,040 Speaker 3: rights inter racial marriage, and justice. Alito's response to all 188 00:10:12,080 --> 00:10:14,960 Speaker 3: of that is abortion is different because it takes potential 189 00:10:15,000 --> 00:10:18,000 Speaker 3: life or unborn life, which is certainly not a full 190 00:10:18,000 --> 00:10:21,960 Speaker 3: blown embrace of fetal personhood, but it's also certainly consistent 191 00:10:22,000 --> 00:10:24,920 Speaker 3: with the idea of fetal personhood. So again, do I 192 00:10:24,920 --> 00:10:29,439 Speaker 3: think the Supreme Court's going to embrace fetal personhood tomorrow? No, 193 00:10:29,640 --> 00:10:32,559 Speaker 3: and neither does anybody in the anti abortion movement. That's 194 00:10:32,600 --> 00:10:34,560 Speaker 3: not true. There are definitely people who are pretty in 195 00:10:34,600 --> 00:10:37,160 Speaker 3: federal court litigating about it, but a lot of them 196 00:10:37,160 --> 00:10:40,679 Speaker 3: are thinking this is sort of the next great White whale, right, 197 00:10:40,720 --> 00:10:43,600 Speaker 3: this is the next getting rid of Roby Wade, and 198 00:10:43,640 --> 00:10:47,080 Speaker 3: it's it's a project that could take a decade or 199 00:10:47,120 --> 00:10:52,319 Speaker 3: more and obviously might take further transformation of the Supreme Court. 200 00:10:52,400 --> 00:10:55,120 Speaker 3: We know Donald Trump will have an opportunity potentially to 201 00:10:55,160 --> 00:10:58,280 Speaker 3: nominate some justices, but the question will be whether he 202 00:10:58,320 --> 00:11:02,240 Speaker 3: can actually move the court considerably to the right, or 203 00:11:02,280 --> 00:11:05,520 Speaker 3: whether instead he'll be replacing some of the most conservative 204 00:11:05,600 --> 00:11:07,640 Speaker 3: members of the court and kind of firming up the 205 00:11:07,640 --> 00:11:08,320 Speaker 3: status quo. 206 00:11:08,840 --> 00:11:15,360 Speaker 2: Does fetal personhood go hand in hand with criminalization of 207 00:11:15,400 --> 00:11:17,000 Speaker 2: abortion well in. 208 00:11:16,920 --> 00:11:20,560 Speaker 3: The United States today. Yes. One of the interesting questions 209 00:11:20,679 --> 00:11:24,160 Speaker 3: that sort of drove this fight about personhood was does 210 00:11:24,440 --> 00:11:29,319 Speaker 3: valuing fetal life or recognizing fetal rights require you to criminalize, 211 00:11:29,440 --> 00:11:32,920 Speaker 3: you know, abortion, helping people get abortions, IDs, helping people 212 00:11:32,920 --> 00:11:36,040 Speaker 3: get ivs, Like, what does that look like? And at 213 00:11:36,120 --> 00:11:39,800 Speaker 3: various points you would have abortion opponents give the answer 214 00:11:39,840 --> 00:11:42,640 Speaker 3: that some other countries have given, which is that if 215 00:11:42,640 --> 00:11:45,960 Speaker 3: you recognize fetal rights, the best way to do that 216 00:11:46,120 --> 00:11:49,080 Speaker 3: is to give more rights to the person carrying that life, 217 00:11:49,640 --> 00:11:52,080 Speaker 3: the pregnant woman, right. And the way you would do 218 00:11:52,120 --> 00:11:55,240 Speaker 3: that would be, for example, to give that person more 219 00:11:55,280 --> 00:11:59,920 Speaker 3: financial support, access to prenatal care. It's not inevitable to 220 00:12:00,040 --> 00:12:03,240 Speaker 3: assume that the way you protect life in the womb 221 00:12:04,120 --> 00:12:08,720 Speaker 3: is by criminalizing anything. Right. But I think over time, 222 00:12:09,080 --> 00:12:12,240 Speaker 3: for a whole bunch of reasons, having everything to do 223 00:12:12,360 --> 00:12:15,880 Speaker 3: with the increase in rates and of incarceration in the US, 224 00:12:16,080 --> 00:12:18,520 Speaker 3: did the partnership the anti abortion movement formed with the 225 00:12:18,559 --> 00:12:23,160 Speaker 3: Republican Party. The US anti abortion movement has increasingly equated 226 00:12:23,280 --> 00:12:27,840 Speaker 3: rights for an unborn child or embryo or fetus with criminalization. 227 00:12:28,400 --> 00:12:30,319 Speaker 3: So I think one of the things you learned from 228 00:12:30,320 --> 00:12:32,720 Speaker 3: the history is one this is a sort of bizarre 229 00:12:32,720 --> 00:12:36,120 Speaker 3: and uniquely American answer to this question, but also too 230 00:12:36,160 --> 00:12:38,880 Speaker 3: that there may be other answers to the question. And 231 00:12:38,920 --> 00:12:41,880 Speaker 3: you see this sometimes even in polling QW in May 232 00:12:41,960 --> 00:12:45,880 Speaker 3: twenty twenty two, not long before Dobbs, found that a 233 00:12:45,920 --> 00:12:49,600 Speaker 3: full third of people responding to the poll said they 234 00:12:49,600 --> 00:12:52,720 Speaker 3: thought life began at conception and fetus, this had rights, 235 00:12:52,760 --> 00:12:56,120 Speaker 3: and that abortion shouldn't be criminalized. So even now in 236 00:12:56,120 --> 00:12:59,240 Speaker 3: the United States, as polarized as we are, there's some 237 00:12:59,360 --> 00:13:03,160 Speaker 3: Americans who think along those lines, right. So one interesting 238 00:13:03,240 --> 00:13:05,800 Speaker 3: question is would it be possible to have that kind 239 00:13:05,840 --> 00:13:10,120 Speaker 3: of dialogue again or are we so kind of mired 240 00:13:10,200 --> 00:13:12,600 Speaker 3: in this fight about criminalization that there's no way to 241 00:13:12,640 --> 00:13:14,360 Speaker 3: think or talk like that at the present. 242 00:13:14,600 --> 00:13:16,920 Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue 243 00:13:16,920 --> 00:13:20,920 Speaker 2: this conversation with You See Davis Law professor Mary Ziegler. 244 00:13:21,160 --> 00:13:24,199 Speaker 2: We'll talk about the next battleground in the war over abortion. 245 00:13:24,720 --> 00:13:29,160 Speaker 2: I'm June Grosso and you're listening to Bloomberg. I've been 246 00:13:29,200 --> 00:13:32,120 Speaker 2: talking to Professor Mary Ziegler of You See Davis Law 247 00:13:32,160 --> 00:13:37,000 Speaker 2: School about her new book entitled Personhood The New Civil. 248 00:13:36,720 --> 00:13:38,120 Speaker 1: War over Reproduction. 249 00:13:38,440 --> 00:13:42,280 Speaker 2: So let's discuss the Dobbs decision, which for the first time, 250 00:13:42,320 --> 00:13:46,240 Speaker 2: the court took away a constitutional right and what many 251 00:13:46,240 --> 00:13:51,160 Speaker 2: see as a flawed opinion by Justice Samuel Leto, particularly 252 00:13:51,160 --> 00:13:54,320 Speaker 2: with his interpretation of history. Yeah. 253 00:13:54,360 --> 00:13:57,839 Speaker 3: Well, one of the interesting features of Dobbs is, on 254 00:13:57,880 --> 00:14:02,280 Speaker 3: the one hand, Dobbs doesn't say anything about fetal rights, 255 00:14:02,720 --> 00:14:05,120 Speaker 3: and that was surprising, right. I think most people were 256 00:14:05,120 --> 00:14:09,120 Speaker 3: expecting at least one of the justices to reference these 257 00:14:09,160 --> 00:14:12,000 Speaker 3: theories about fetal rights that abortion opponents had developed, and 258 00:14:12,000 --> 00:14:14,040 Speaker 3: that we're in the Amikus briss Or Friend of Court 259 00:14:14,040 --> 00:14:16,880 Speaker 3: Priests and Dobs. On the other hand, the account of 260 00:14:16,960 --> 00:14:21,320 Speaker 3: history that Justice Alito gives in Dobbs, which is essentially 261 00:14:21,640 --> 00:14:25,760 Speaker 3: in Justice Alito's version of things, abortion was always criminalized 262 00:14:25,840 --> 00:14:29,119 Speaker 3: or at least viewed with disfavor, and that both establishes 263 00:14:29,200 --> 00:14:31,440 Speaker 3: that there couldn't be a right to abortion in the 264 00:14:31,480 --> 00:14:36,120 Speaker 3: eyes of personhood proponents. It also suggests that the framers 265 00:14:36,120 --> 00:14:40,840 Speaker 3: of the Constitution viewed thetuses as people with constitutional rights. Now, 266 00:14:41,480 --> 00:14:44,040 Speaker 3: you know, the Court doesn't formally embrace that, but it's 267 00:14:44,080 --> 00:14:47,120 Speaker 3: easy to see a parallel between the way people who 268 00:14:47,280 --> 00:14:50,080 Speaker 3: embrace fetal personhold see our past and the way Dobbs 269 00:14:50,120 --> 00:14:53,280 Speaker 3: portrays our past, which is one of the reasons we've seen. 270 00:14:53,360 --> 00:14:56,840 Speaker 3: I think people get energized about the idea that the 271 00:14:56,880 --> 00:14:59,840 Speaker 3: Supreme Court may embrace this idea of fetal person had later, 272 00:15:00,000 --> 00:15:01,720 Speaker 3: even if it's not likely to do so today. 273 00:15:02,720 --> 00:15:05,240 Speaker 2: You know, I would say that that's like a far 274 00:15:05,360 --> 00:15:09,040 Speaker 2: flung theory and the Court won't embrace it. But then 275 00:15:09,080 --> 00:15:11,800 Speaker 2: I thought that the Court would not get rid of 276 00:15:11,840 --> 00:15:15,400 Speaker 2: the constitutional right to abortion. I mean, have you seen 277 00:15:15,640 --> 00:15:19,400 Speaker 2: in the concurrences or the sense of any of the 278 00:15:19,640 --> 00:15:22,480 Speaker 2: justices this embrace of fetal personhood. 279 00:15:22,480 --> 00:15:24,280 Speaker 1: I think Alito did say. 280 00:15:24,280 --> 00:15:26,960 Speaker 2: Correct me if I'm wrong in Dabs something like life 281 00:15:27,000 --> 00:15:28,280 Speaker 2: begins at conception. 282 00:15:29,080 --> 00:15:30,960 Speaker 3: Yeah, I mean it's hard to say. I think you're 283 00:15:31,000 --> 00:15:33,800 Speaker 3: really tewy freading if you're trying to get a definitive account. 284 00:15:33,840 --> 00:15:36,120 Speaker 3: I think the problem for the fetal Persons of movement 285 00:15:36,120 --> 00:15:39,160 Speaker 3: at the moment, in some ways is justice spread Kavanaugh, 286 00:15:39,160 --> 00:15:41,400 Speaker 3: who wrote a concurrence in Dobbs more or less committing 287 00:15:41,480 --> 00:15:44,440 Speaker 3: himself to the position that the Constitution doesn't protect any 288 00:15:44,520 --> 00:15:47,200 Speaker 3: right having to do with abortion, whether a fetal right 289 00:15:47,320 --> 00:15:50,320 Speaker 3: or right for women or anything. Really, And so that 290 00:15:50,360 --> 00:15:53,640 Speaker 3: doesn't mean Kavanaugh can't change his mind or backpedal, but 291 00:15:53,800 --> 00:15:56,280 Speaker 3: it's going to take I think time and lots of 292 00:15:56,320 --> 00:15:59,680 Speaker 3: this sort of state by state work to convince him 293 00:15:59,720 --> 00:16:02,960 Speaker 3: to change. Having said that, the majority in Dogs, as 294 00:16:03,000 --> 00:16:06,720 Speaker 3: you point out, relies a lot on the importance of 295 00:16:06,800 --> 00:16:09,240 Speaker 3: unborn life. And how that shows up in particular, is 296 00:16:09,280 --> 00:16:12,720 Speaker 3: the Court is accused by the descending justices and some 297 00:16:12,840 --> 00:16:15,600 Speaker 3: of the parties of threatening other rights like the right 298 00:16:15,640 --> 00:16:19,480 Speaker 3: to contraception, the right for same sex marriage, rights, interracial marriage, 299 00:16:19,520 --> 00:16:22,360 Speaker 3: and justice. Alito's response to all of that is abortion 300 00:16:22,480 --> 00:16:25,560 Speaker 3: is different because it takes potential life or unborn life, 301 00:16:25,560 --> 00:16:29,520 Speaker 3: which is certainly not a full blown embrace of fetal personhood, 302 00:16:29,560 --> 00:16:32,920 Speaker 3: but it's also certainly consistent with the idea of fetal personhood. 303 00:16:33,000 --> 00:16:35,560 Speaker 3: So again, do I think the Supreme Court's going to 304 00:16:35,600 --> 00:16:40,400 Speaker 3: embrace fetal personhood tomorrow? No, And neither does anybody in 305 00:16:40,440 --> 00:16:42,640 Speaker 3: the anti abortion movement. Oh that's not true. There are 306 00:16:42,640 --> 00:16:45,680 Speaker 3: definitely people who are party in Federal Court litigating about it, 307 00:16:45,720 --> 00:16:48,200 Speaker 3: but a lot of them are thinking this is sort 308 00:16:48,240 --> 00:16:50,640 Speaker 3: of the next great white whale, right, this is the 309 00:16:50,720 --> 00:16:53,640 Speaker 3: next getting rid of Roby Wade, And it's it's a 310 00:16:53,680 --> 00:16:56,840 Speaker 3: project that could take, you know, a decade or more, 311 00:16:56,880 --> 00:17:01,840 Speaker 3: and obviously might take further transformation of the Supreme Court. 312 00:17:01,920 --> 00:17:04,639 Speaker 3: We know Donald Trump will have an opportunity potentially to 313 00:17:04,680 --> 00:17:07,800 Speaker 3: nominate some justices, but the question will be whether he 314 00:17:07,800 --> 00:17:11,760 Speaker 3: can actually move the court considerably to the right or 315 00:17:11,800 --> 00:17:15,080 Speaker 3: whether instead he'll be replacing some of the most conservative 316 00:17:15,080 --> 00:17:17,119 Speaker 3: members of the court and kind of firming up the 317 00:17:17,160 --> 00:17:17,800 Speaker 3: status quo. 318 00:17:18,359 --> 00:17:25,360 Speaker 2: Does fetal personhood go hand in hand with criminalization of abortion? 319 00:17:25,920 --> 00:17:27,760 Speaker 3: Well in the United States today. 320 00:17:28,040 --> 00:17:28,240 Speaker 1: Yes. 321 00:17:28,520 --> 00:17:31,199 Speaker 3: One of the interesting questions that sort of drove this 322 00:17:31,280 --> 00:17:36,040 Speaker 3: fight about personhood was does valuing fetal life or recognizing 323 00:17:36,040 --> 00:17:40,200 Speaker 3: fetal rights require you to criminalize you know, abortion, helping 324 00:17:40,200 --> 00:17:43,359 Speaker 3: people get abortions, IDs, helping people get ivs? Like, what 325 00:17:43,400 --> 00:17:46,640 Speaker 3: does that look like? And at various points you would 326 00:17:46,680 --> 00:17:50,600 Speaker 3: have abortion opponents give the answer that some other countries 327 00:17:50,600 --> 00:17:53,639 Speaker 3: have given, which is that if you recognize fetal rights, 328 00:17:54,320 --> 00:17:56,280 Speaker 3: the best way to do that is to give more 329 00:17:56,359 --> 00:18:00,440 Speaker 3: rights to the person carrying that life, the pregnant woman, right. 330 00:18:00,600 --> 00:18:03,160 Speaker 3: And the way you would do that would be, for example, 331 00:18:03,280 --> 00:18:07,640 Speaker 3: to give that person more financial support, access to prenatal care. 332 00:18:08,240 --> 00:18:11,520 Speaker 3: It's not inevitable to assume that the way you protect 333 00:18:11,840 --> 00:18:17,080 Speaker 3: life in the womb is by criminalizing anything, right, But 334 00:18:17,240 --> 00:18:20,480 Speaker 3: I think over time, for a whole bunch of reasons, 335 00:18:20,680 --> 00:18:24,000 Speaker 3: having everything to do with the increase in rates of 336 00:18:24,040 --> 00:18:27,159 Speaker 3: incarceration in the US. Did the partnership the anti abortion 337 00:18:27,240 --> 00:18:30,960 Speaker 3: movement formed with the Republican Party. The US anti abortion 338 00:18:31,040 --> 00:18:34,840 Speaker 3: movement has increasingly equated rights for an unborn child or 339 00:18:34,880 --> 00:18:38,840 Speaker 3: embryo or fetus with criminalization. So I think one of 340 00:18:38,920 --> 00:18:41,280 Speaker 3: the things you learned from the history is one this 341 00:18:41,320 --> 00:18:44,000 Speaker 3: is a sort of bizarre and uniquely American answer to 342 00:18:44,040 --> 00:18:47,160 Speaker 3: this question, but also too that there may be other 343 00:18:47,240 --> 00:18:49,640 Speaker 3: answers to the question. And you see this sometimes even 344 00:18:49,680 --> 00:18:53,520 Speaker 3: in polling QW in May twenty twenty two, not long 345 00:18:53,560 --> 00:18:57,560 Speaker 3: before Dobbs found that a full third of people responding 346 00:18:57,600 --> 00:18:59,879 Speaker 3: to the poll said they thought life began a ca 347 00:19:00,040 --> 00:19:04,200 Speaker 3: inception and fetus's head rights and that abortion shouldn't be criminalized. 348 00:19:04,520 --> 00:19:07,560 Speaker 3: So even now in the United States, as polarized as 349 00:19:07,600 --> 00:19:11,280 Speaker 3: we are, there's some Americans who think along those lines, right. 350 00:19:11,400 --> 00:19:14,679 Speaker 3: So one interesting question is would it be possible to 351 00:19:14,720 --> 00:19:17,879 Speaker 3: have that kind of dialogue again or are we so 352 00:19:18,520 --> 00:19:21,600 Speaker 3: kind of mired in this fight about criminalization that there's 353 00:19:21,600 --> 00:19:23,800 Speaker 3: no way to think or talk like that at the present. 354 00:19:24,480 --> 00:19:28,080 Speaker 2: You mentioned the case in Alabama where people suddenly woke 355 00:19:28,160 --> 00:19:32,560 Speaker 2: up to the fact that in vitro fertilization was in jeopardy. 356 00:19:33,160 --> 00:19:38,360 Speaker 2: How does fetal personhood affect in vitro fertilization and contraception. 357 00:19:39,000 --> 00:19:42,399 Speaker 3: Yeah, with respect to in vitro fertilization, obviously, the anti 358 00:19:42,400 --> 00:19:45,840 Speaker 3: abortion movement has become much more outspoken about in vitro 359 00:19:45,880 --> 00:19:49,719 Speaker 3: fertilization as it's become more outspoken about personhood. Right if 360 00:19:49,760 --> 00:19:52,400 Speaker 3: you're in the archives of these groups, they've been involved 361 00:19:52,400 --> 00:19:55,360 Speaker 3: with both a long time that now those I think 362 00:19:55,440 --> 00:19:58,879 Speaker 3: demands have become more open and more pressing. There's different 363 00:19:59,000 --> 00:20:03,280 Speaker 3: positions in the been about whether recognizing personhood would require 364 00:20:03,520 --> 00:20:07,560 Speaker 3: that IBS be more or less shut down. The majority 365 00:20:07,600 --> 00:20:10,800 Speaker 3: position is that IVF would have to be radically changed, 366 00:20:11,359 --> 00:20:14,240 Speaker 3: essentially in a way that would require that only one 367 00:20:14,280 --> 00:20:18,240 Speaker 3: embryo could be created and implanted at a time, because 368 00:20:18,280 --> 00:20:22,320 Speaker 3: personhood is inconsistent with either the destruction of embryos or 369 00:20:22,680 --> 00:20:26,640 Speaker 3: the indefinite preservation of embryos. So that of course would 370 00:20:26,680 --> 00:20:30,440 Speaker 3: have pretty major impacts on families using IVS. It would 371 00:20:30,440 --> 00:20:33,600 Speaker 3: increase its cost, it would decrease its efficacy. It maybe 372 00:20:33,720 --> 00:20:36,880 Speaker 3: sort of drive IVF under simply by making it so 373 00:20:36,920 --> 00:20:39,920 Speaker 3: ineffective that it wouldn't have much appeal to families struggling 374 00:20:39,920 --> 00:20:43,840 Speaker 3: with infertility. The effects on contraception are a little bit 375 00:20:43,840 --> 00:20:47,320 Speaker 3: different because a lot of groups that believe in personhood 376 00:20:47,880 --> 00:20:51,360 Speaker 3: have deep disagreements about how common contraceptives work. They reject 377 00:20:51,680 --> 00:20:56,080 Speaker 3: the conclusions drawn by groups like ACOG about what defines 378 00:20:56,119 --> 00:21:01,240 Speaker 3: the pregnancy and about how, for example, emergency contraceptive IDs 379 00:21:01,359 --> 00:21:04,399 Speaker 3: or even the birth control pill work. So they argue 380 00:21:04,440 --> 00:21:08,960 Speaker 3: that all of those common contraceptives in fact operate as abortizations, 381 00:21:09,359 --> 00:21:13,960 Speaker 3: and therefore, to the extent personhood requires us and worship, 382 00:21:14,040 --> 00:21:17,680 Speaker 3: it also requires us to end access to those common contraceptives. 383 00:21:18,040 --> 00:21:21,439 Speaker 2: To me, the numbers were stunning that in twenty twenty 384 00:21:21,480 --> 00:21:25,040 Speaker 2: three and twenty twenty four there are more than a 385 00:21:25,119 --> 00:21:27,240 Speaker 2: million abortions in the US, and that's some of the 386 00:21:27,320 --> 00:21:29,280 Speaker 2: highest numbers in a decade. 387 00:21:29,760 --> 00:21:31,160 Speaker 1: So how does that equate with. 388 00:21:31,280 --> 00:21:34,560 Speaker 2: The end of the constitutional right to abortion? 389 00:21:35,080 --> 00:21:39,440 Speaker 3: I think history teaches us that absent really extraordinary circumstances, 390 00:21:39,480 --> 00:21:42,639 Speaker 3: what tends to drive the abortion beat is not just 391 00:21:42,720 --> 00:21:48,000 Speaker 3: supply meaning how accessible is abortion, but also demand right. 392 00:21:48,080 --> 00:21:51,639 Speaker 3: So what is happening in people's lives that they're considering 393 00:21:52,440 --> 00:21:55,800 Speaker 3: terminating a pregnancy, and that can have any things to 394 00:21:55,840 --> 00:22:00,960 Speaker 3: do with access to contraception, the health of the economy, inflation, 395 00:22:02,119 --> 00:22:07,720 Speaker 3: even at an individual level, people's health outcomes, exposure to racism. Right, 396 00:22:07,760 --> 00:22:10,720 Speaker 3: people are making these decisions about whether they themselves skill 397 00:22:10,800 --> 00:22:14,720 Speaker 3: they can have a child or another child given their 398 00:22:14,760 --> 00:22:20,359 Speaker 3: present reality. So it's unsurprising that states are unable to 399 00:22:20,480 --> 00:22:23,760 Speaker 3: eliminate demand. They're not necessarily even trying very hard to 400 00:22:23,800 --> 00:22:27,160 Speaker 3: eliminate demand. There's not been a lot of state provided 401 00:22:27,680 --> 00:22:31,480 Speaker 3: new resources since dogs. States that said, have mostly outsourced 402 00:22:31,480 --> 00:22:35,880 Speaker 3: that task to private religious charities. So I think we're 403 00:22:35,920 --> 00:22:39,320 Speaker 3: not likely to see that change, and that's borne out 404 00:22:39,359 --> 00:22:43,280 Speaker 3: by history too. It's very hard to criminalize your way 405 00:22:43,960 --> 00:22:47,920 Speaker 3: into eliminating a phenomenon, whether that's abortion or drinking alcohol. 406 00:22:48,000 --> 00:22:50,520 Speaker 3: I think usually more needs to be done to even 407 00:22:50,600 --> 00:22:53,120 Speaker 3: make any kind of significant difference if that's what your 408 00:22:53,119 --> 00:22:53,600 Speaker 3: goal is. 409 00:22:53,920 --> 00:22:57,320 Speaker 2: What do you think the next big fight is for 410 00:22:57,600 --> 00:23:01,080 Speaker 2: abortion opponents? Is it the Commps Stock Act, is it 411 00:23:01,240 --> 00:23:03,280 Speaker 2: shield laws or is it something different? 412 00:23:03,600 --> 00:23:06,919 Speaker 3: Yeah, I think the most likely short term battle is 413 00:23:06,960 --> 00:23:08,960 Speaker 3: probably going to be over Sheila's And the reason I 414 00:23:09,000 --> 00:23:12,000 Speaker 3: say that is because what the anti abortion movement would 415 00:23:12,119 --> 00:23:15,800 Speaker 3: like before fetal personhood. What it would like first from 416 00:23:15,880 --> 00:23:19,359 Speaker 3: President Trump is judges who would be sympathetic to fetal personhood. 417 00:23:19,760 --> 00:23:22,800 Speaker 3: Donald Trump has four years to transform the federal courts 418 00:23:22,840 --> 00:23:25,280 Speaker 3: again and to put more people on the courts like 419 00:23:25,320 --> 00:23:28,760 Speaker 3: Matthew Pasmerrick, who's already needed coded references to personhood and 420 00:23:28,840 --> 00:23:31,400 Speaker 3: his opinions. The second thing they want in the short 421 00:23:31,480 --> 00:23:34,119 Speaker 3: term would be some kind of federal limit on abortion, 422 00:23:34,920 --> 00:23:37,359 Speaker 3: like the interpretation of the Compstock Act as a band 423 00:23:37,800 --> 00:23:39,920 Speaker 3: or a change in the rules governing access to with 424 00:23:40,080 --> 00:23:43,600 Speaker 3: a pristone. But you know, we're past one hundred daymark 425 00:23:44,000 --> 00:23:47,560 Speaker 3: of the Trump administration, and while we have no idea 426 00:23:47,640 --> 00:23:50,639 Speaker 3: necessarily what's coming next, Trump has been moving at a 427 00:23:50,680 --> 00:23:53,400 Speaker 3: breakneck speed on his other priorities and has not done 428 00:23:53,480 --> 00:23:55,840 Speaker 3: much on abortion. So I think we're starting to see 429 00:23:56,440 --> 00:24:00,360 Speaker 3: anti abortion groups look for other ways forward. And one 430 00:24:00,400 --> 00:24:02,520 Speaker 3: of the things I think they're trying to do by 431 00:24:02,560 --> 00:24:05,800 Speaker 3: attacking shie laws is to create a precedent where red 432 00:24:05,840 --> 00:24:09,159 Speaker 3: states can project their power across state lines, even if 433 00:24:09,160 --> 00:24:11,680 Speaker 3: the Trump administration is not ready to have some kind 434 00:24:11,720 --> 00:24:14,240 Speaker 3: of top down mandate that would shut down access in 435 00:24:14,320 --> 00:24:14,960 Speaker 3: blue states. 436 00:24:15,320 --> 00:24:18,639 Speaker 2: Finally, Mary, what was your main goal in writing the book? 437 00:24:18,760 --> 00:24:20,800 Speaker 2: What do you hope people will get from reading it? 438 00:24:21,280 --> 00:24:24,639 Speaker 3: Well? I think in part I was reacting to the 439 00:24:24,680 --> 00:24:28,040 Speaker 3: fact that people seem to think that it was over 440 00:24:29,000 --> 00:24:32,639 Speaker 3: after Dobbs, at least for the anti abortion side, and 441 00:24:32,720 --> 00:24:34,440 Speaker 3: the fight was going to be a fight about when 442 00:24:34,520 --> 00:24:37,800 Speaker 3: and whether reproductive rights were going to come back at 443 00:24:37,800 --> 00:24:42,879 Speaker 3: the national level. And I think people fundamentally misunderstood that 444 00:24:43,160 --> 00:24:47,639 Speaker 3: the fight wasn't over for conservatives either, and that reproductive 445 00:24:47,680 --> 00:24:50,800 Speaker 3: rights could be much more restricted than they currently are, 446 00:24:51,119 --> 00:24:53,080 Speaker 3: and to understand that if that happened, it would have 447 00:24:53,200 --> 00:24:56,600 Speaker 3: implications not just for people who are abortion seekers, but 448 00:24:56,640 --> 00:24:59,359 Speaker 3: for lots of other people too. So to kind of 449 00:24:59,400 --> 00:25:01,960 Speaker 3: help people to understand where are we really now that 450 00:25:02,040 --> 00:25:04,639 Speaker 3: Roe is gone? And the answer is, you know, we 451 00:25:04,760 --> 00:25:07,600 Speaker 3: don't know. But it's not necessarily going to be a 452 00:25:07,720 --> 00:25:10,400 Speaker 3: path toward the restoration of something like Roe. It could 453 00:25:10,560 --> 00:25:14,560 Speaker 3: very much go in the other direction, particularly with Donald 454 00:25:14,600 --> 00:25:19,639 Speaker 3: Trump's judges taking seats in sports across the country. So 455 00:25:19,680 --> 00:25:23,479 Speaker 3: I think waking people up to that reality and showing 456 00:25:23,520 --> 00:25:26,920 Speaker 3: them that that reality would have stakes for them, even 457 00:25:26,960 --> 00:25:29,720 Speaker 3: if they don't anticipate ever wanting an abortion or even 458 00:25:29,760 --> 00:25:31,160 Speaker 3: being willing to have an abortion. 459 00:25:31,680 --> 00:25:33,919 Speaker 2: It's always important to see the whole picture, and I 460 00:25:33,920 --> 00:25:36,960 Speaker 2: think your book helps us do that. Thanks so much 461 00:25:37,000 --> 00:25:40,000 Speaker 2: for joining me. Mary. That's Professor Mary Ziegler of UC 462 00:25:40,200 --> 00:25:44,320 Speaker 2: Davis Law School. Once again, her book is Personhood, the 463 00:25:44,400 --> 00:25:49,120 Speaker 2: New Civil War over reproduction. Perhaps it's the public's fascination 464 00:25:49,400 --> 00:25:53,960 Speaker 2: with true crime and conspiracy theories that's made Karen Reid's 465 00:25:54,000 --> 00:25:57,919 Speaker 2: second murder trial must see viewing. Reid's first trial was 466 00:25:57,960 --> 00:26:02,600 Speaker 2: twenty nine days of testimony inside and outside the courtroom. 467 00:26:03,160 --> 00:26:06,640 Speaker 2: A Boston police officer killed during a blizzard and left 468 00:26:06,680 --> 00:26:10,600 Speaker 2: to die in the snow with no eye witnesses his girlfriend, 469 00:26:10,720 --> 00:26:13,760 Speaker 2: a well to do white female, charged with murder, the 470 00:26:13,800 --> 00:26:17,520 Speaker 2: defense allegations of an extensive frame up and a police 471 00:26:17,600 --> 00:26:21,679 Speaker 2: cover up, and finally the jury deadlocked and unable to 472 00:26:21,720 --> 00:26:25,120 Speaker 2: reach a verdict. Her second trial promises to be more 473 00:26:25,160 --> 00:26:28,720 Speaker 2: of the same, although this time the prosecution called the 474 00:26:28,800 --> 00:26:30,840 Speaker 2: victim's mother Peggy o'keef. 475 00:26:31,760 --> 00:26:34,320 Speaker 4: He's bruised up, his eyes were closed. 476 00:26:34,359 --> 00:26:38,040 Speaker 2: She recalled Karen Reid, shouting at her in the hospital hallway. 477 00:26:38,600 --> 00:26:40,200 Speaker 1: Peg is he dead? As he did? Peg? 478 00:26:40,240 --> 00:26:40,480 Speaker 4: Peg? 479 00:26:40,560 --> 00:26:40,960 Speaker 3: Is he did? 480 00:26:41,720 --> 00:26:44,560 Speaker 2: Joining me? His trial attorney David Ring, a partner at 481 00:26:44,640 --> 00:26:47,800 Speaker 2: Tailor and Ring Dave. The first time around, the trial 482 00:26:47,960 --> 00:26:52,280 Speaker 2: judge declared a mistrial after the jury said it was deadlocked. 483 00:26:52,880 --> 00:26:57,000 Speaker 2: Never asked them why they were hung up, but several 484 00:26:57,119 --> 00:27:00,840 Speaker 2: jurors reached out to defense attorneys tell us what has so. 485 00:27:01,040 --> 00:27:04,600 Speaker 4: In the first trial, Karen Reid was charged with three counts, 486 00:27:04,720 --> 00:27:07,440 Speaker 4: the most serious being the second degree murder, and then 487 00:27:07,480 --> 00:27:12,000 Speaker 4: the next, also very serious, was vehicular manslaughter while intoxicated, 488 00:27:12,119 --> 00:27:14,080 Speaker 4: and the third count was leaving the scene of a 489 00:27:14,119 --> 00:27:19,080 Speaker 4: serious injury. Well after several days of deliberations that the 490 00:27:19,160 --> 00:27:21,800 Speaker 4: jurors had sent several notes to the judge saying they 491 00:27:21,800 --> 00:27:24,840 Speaker 4: had had an impasse, and so finally, when it became 492 00:27:24,920 --> 00:27:28,920 Speaker 4: clear they couldn't reach a verdict, the judge declared a mistrial. 493 00:27:29,440 --> 00:27:33,000 Speaker 4: The only problem with that was neither the judge or 494 00:27:33,040 --> 00:27:36,240 Speaker 4: the defense attorneys said, hey, had you reached a verdict 495 00:27:36,240 --> 00:27:39,520 Speaker 4: on any of the three counts. They just assumed that 496 00:27:39,600 --> 00:27:43,119 Speaker 4: they meant they had an impass on all three counts. So, 497 00:27:43,280 --> 00:27:47,440 Speaker 4: after this mistrial was declared, some of the jurors came 498 00:27:47,560 --> 00:27:51,560 Speaker 4: forward and told the defense attorney that the jury had 499 00:27:51,600 --> 00:27:56,480 Speaker 4: in fact acquitted Karen Reid of second degree murder and 500 00:27:56,600 --> 00:28:00,600 Speaker 4: of leaving the scene of a serious injury. They had 501 00:28:00,760 --> 00:28:05,280 Speaker 4: taken those verdicts in court, she wouldn't be facing those 502 00:28:05,320 --> 00:28:08,840 Speaker 4: same charges again in her second trial. And so the 503 00:28:08,920 --> 00:28:12,080 Speaker 4: defense from the last few months has tried to get 504 00:28:12,240 --> 00:28:16,160 Speaker 4: some court to listen to that argument, and they've been 505 00:28:16,240 --> 00:28:20,640 Speaker 4: unsuccessful each and every time. Why because those verdicts were 506 00:28:20,720 --> 00:28:23,400 Speaker 4: never announced in open court. 507 00:28:23,680 --> 00:28:23,880 Speaker 1: Yeah. 508 00:28:23,880 --> 00:28:26,920 Speaker 2: So Reid even found a petition with the US Supreme 509 00:28:27,000 --> 00:28:30,080 Speaker 2: Court arguing that a second trial on those counts, the 510 00:28:30,160 --> 00:28:34,400 Speaker 2: jury had reached a unanimous but unannounced verdict of acquittal 511 00:28:34,760 --> 00:28:37,560 Speaker 2: should be barred by the double jeopardy clause. But the 512 00:28:37,600 --> 00:28:40,320 Speaker 2: court turned her down. It seemed like a real reach 513 00:28:40,440 --> 00:28:43,959 Speaker 2: to me, basing it on what happened in the jury 514 00:28:44,040 --> 00:28:47,400 Speaker 2: room that wasn't announced in the court room when you're 515 00:28:47,440 --> 00:28:49,880 Speaker 2: not supposed to delve into jury deliberations. 516 00:28:50,440 --> 00:28:53,520 Speaker 4: That's exactly right, and that's why they were unsuccessful. And 517 00:28:53,560 --> 00:28:56,440 Speaker 4: there are several appeals to try to have this double 518 00:28:56,520 --> 00:29:00,560 Speaker 4: jeopardy argument heard by a court. Look, if the judge 519 00:29:00,960 --> 00:29:03,680 Speaker 4: in the first trial had said, hey, jury, have you 520 00:29:03,760 --> 00:29:07,240 Speaker 4: reached a verdict on any of the three counts, the 521 00:29:07,320 --> 00:29:09,560 Speaker 4: jury would have said, yes, we have, and then it 522 00:29:09,600 --> 00:29:13,400 Speaker 4: would have been announced in court and now she'd only 523 00:29:13,440 --> 00:29:17,960 Speaker 4: be facing one count of vehicular manslaughter. But because that 524 00:29:18,080 --> 00:29:22,440 Speaker 4: did not happen, she's facing a second degree murder charge 525 00:29:22,480 --> 00:29:24,280 Speaker 4: along with the vehicular manslaughter. 526 00:29:24,880 --> 00:29:28,120 Speaker 2: The second trial compared to the first, what does a 527 00:29:28,160 --> 00:29:29,240 Speaker 2: retrial mean? 528 00:29:29,760 --> 00:29:30,200 Speaker 1: Usually? 529 00:29:30,480 --> 00:29:34,160 Speaker 2: I think that a retrial favors the prosecution because you 530 00:29:34,240 --> 00:29:36,080 Speaker 2: know what the defense is going to be. But this 531 00:29:36,280 --> 00:29:39,840 Speaker 2: case is so different. Does one side have an upper 532 00:29:39,840 --> 00:29:40,840 Speaker 2: hand on a retrial? 533 00:29:41,760 --> 00:29:45,240 Speaker 4: Well, boy, you know, I agree with you that generally speaking, 534 00:29:45,400 --> 00:29:49,480 Speaker 4: a second trial generally favors the prosecution for that exact reason, 535 00:29:49,600 --> 00:29:53,760 Speaker 4: because there's no surprises, and the prosecution knows maybe where 536 00:29:54,120 --> 00:29:57,160 Speaker 4: they can improve from the first trial. They've seen all 537 00:29:57,200 --> 00:30:00,000 Speaker 4: the witnesses, they've probably talked to some of the jurors 538 00:30:00,040 --> 00:30:02,720 Speaker 4: said Okay, why weren't you convinced beyond a reasonable doubt? 539 00:30:02,760 --> 00:30:05,800 Speaker 4: And they fix all that for the second trial. In 540 00:30:05,840 --> 00:30:08,800 Speaker 4: this particular case, it is going to be very interesting 541 00:30:08,840 --> 00:30:15,080 Speaker 4: because both sides have some very compelling evidence and arguments 542 00:30:15,080 --> 00:30:18,720 Speaker 4: that favor their respective positions, and I'm not sure that's 543 00:30:18,800 --> 00:30:21,320 Speaker 4: going to change at all in the second trial. I'm 544 00:30:21,320 --> 00:30:23,720 Speaker 4: not sure it can change at all, and it very 545 00:30:23,760 --> 00:30:26,800 Speaker 4: well could be we end up with another jury that's 546 00:30:26,840 --> 00:30:29,480 Speaker 4: reaching them pass and can't make a decision. But time 547 00:30:29,520 --> 00:30:30,040 Speaker 4: will tell. 548 00:30:30,480 --> 00:30:33,080 Speaker 2: What do you know that the prosecution and the defense 549 00:30:33,200 --> 00:30:35,560 Speaker 2: have the second time around that they didn't have the 550 00:30:35,560 --> 00:30:36,480 Speaker 2: first time around. 551 00:30:37,040 --> 00:30:39,520 Speaker 4: Well, a couple things, And one of the most important 552 00:30:39,520 --> 00:30:42,680 Speaker 4: things for the prosecution is they have a new prosecutor. 553 00:30:43,280 --> 00:30:45,320 Speaker 4: And I think it's fair to say that in the 554 00:30:45,360 --> 00:30:50,560 Speaker 4: first trial the prosecutor was underwhelming, to say the least. 555 00:30:50,720 --> 00:30:53,560 Speaker 4: He just was not charismatic and he did not put 556 00:30:53,600 --> 00:30:59,520 Speaker 4: together a coherent, compelling case we've already seen. In this 557 00:30:59,560 --> 00:31:03,200 Speaker 4: second trial, they brought in a special prosecutor. He's really 558 00:31:03,240 --> 00:31:07,160 Speaker 4: a defense attorney. They brought him in specifically to try 559 00:31:07,240 --> 00:31:10,720 Speaker 4: this second trial. They're allowed to do that names Hank Brennan, 560 00:31:11,040 --> 00:31:13,720 Speaker 4: and you can tell already he knows how to put 561 00:31:13,760 --> 00:31:16,600 Speaker 4: on a compelling case and he's doing it in a 562 00:31:16,720 --> 00:31:21,080 Speaker 4: very very compelling manner as to how he's presented witnesses 563 00:31:21,160 --> 00:31:24,080 Speaker 4: so far. The other important thing that's going to be 564 00:31:24,120 --> 00:31:27,600 Speaker 4: different in this second case is that this judge has 565 00:31:27,720 --> 00:31:32,400 Speaker 4: curtailed or limited some of the evidence that the defense 566 00:31:33,120 --> 00:31:35,959 Speaker 4: was able to put forward in the first trial, and 567 00:31:36,000 --> 00:31:39,680 Speaker 4: one of the most significant ones is the defense kind 568 00:31:39,680 --> 00:31:43,160 Speaker 4: of pointed the finger at some of these other people 569 00:31:43,280 --> 00:31:46,840 Speaker 4: in the house, saying, hey, these people had a motive 570 00:31:46,920 --> 00:31:51,720 Speaker 4: for perhaps getting in a fight and even killing John O'Keeffe. 571 00:31:51,920 --> 00:31:55,280 Speaker 4: And the judge has already spent one of those people aside, 572 00:31:55,320 --> 00:31:57,400 Speaker 4: say you can't point the finger at that person, there's 573 00:31:57,440 --> 00:32:00,000 Speaker 4: no evidence of that, and very well may do it 574 00:32:00,120 --> 00:32:02,040 Speaker 4: for some others, which you know, that was a big 575 00:32:02,080 --> 00:32:04,720 Speaker 4: part of the defense arguments in the first case, was 576 00:32:04,760 --> 00:32:06,800 Speaker 4: pointing the finger at some of these people who lived 577 00:32:06,800 --> 00:32:09,840 Speaker 4: in the home, and John O'Keefe was found in the 578 00:32:09,880 --> 00:32:11,680 Speaker 4: snow dead outside of that home. 579 00:32:12,240 --> 00:32:13,680 Speaker 1: Something that I've never heard of before. 580 00:32:13,680 --> 00:32:16,880 Speaker 2: But one of the jurors from the first trial was 581 00:32:16,920 --> 00:32:20,080 Speaker 2: a lawyer, and she's now on the defense team. 582 00:32:20,600 --> 00:32:23,880 Speaker 1: She's not a criminal lawyer. It just strikes me as odd, 583 00:32:25,040 --> 00:32:25,680 Speaker 1: very odd. 584 00:32:25,960 --> 00:32:28,959 Speaker 4: I mean, this case has it all, it really does. 585 00:32:29,120 --> 00:32:33,200 Speaker 4: You have a juror from trial on who now is 586 00:32:33,320 --> 00:32:36,560 Speaker 4: working for the defense team on trial too. I'm not 587 00:32:36,640 --> 00:32:40,200 Speaker 4: sure I've seen that before ever, So that's highly unusual. 588 00:32:40,520 --> 00:32:43,640 Speaker 4: And let's face that Karen Reid has assembled a very 589 00:32:43,880 --> 00:32:47,480 Speaker 4: very impressive defense team. Alan Jackson's one of the finest 590 00:32:47,560 --> 00:32:50,239 Speaker 4: criminal defense lawyers in the nation, and he did a 591 00:32:50,240 --> 00:32:53,040 Speaker 4: fabulous job in the first trial. I'm sure he'll do 592 00:32:53,080 --> 00:32:56,600 Speaker 4: a fabulous job in this second trial. She also just 593 00:32:56,640 --> 00:32:59,040 Speaker 4: has a team of lawyers. They come into the court room. 594 00:32:59,040 --> 00:33:02,200 Speaker 4: It's like a small law It's pretty amazing. But she 595 00:33:02,520 --> 00:33:06,240 Speaker 4: certainly not hurting for having legal help in this second trial. 596 00:33:06,600 --> 00:33:09,600 Speaker 2: And we can expect the defense to once again attack 597 00:33:10,080 --> 00:33:14,080 Speaker 2: former state trooper Michael Proctor, who led the investigation but 598 00:33:14,120 --> 00:33:15,640 Speaker 2: has since been fired. 599 00:33:15,680 --> 00:33:18,960 Speaker 4: And that was a huge part of I think why 600 00:33:18,720 --> 00:33:21,920 Speaker 4: we saw a jury unable to reach a decision because 601 00:33:21,960 --> 00:33:26,720 Speaker 4: the lead investigator, whose name is Michael Proctor, engaged in 602 00:33:26,960 --> 00:33:31,320 Speaker 4: serious misconduct in the course of this investigation. You know, 603 00:33:31,800 --> 00:33:36,480 Speaker 4: he texted some very vulgar comments about Karen Reed to 604 00:33:37,160 --> 00:33:41,080 Speaker 4: other police officers and to his friends and really showed 605 00:33:41,120 --> 00:33:45,400 Speaker 4: a bias against her, you know, a bias in investigating her. 606 00:33:45,400 --> 00:33:48,000 Speaker 4: And the defense seized on that and said this was 607 00:33:48,000 --> 00:33:52,920 Speaker 4: a biased investigation from the start. So jump ahead, now 608 00:33:52,960 --> 00:33:55,800 Speaker 4: we're in the second trial. Well, Michael Proctor has been 609 00:33:55,920 --> 00:34:00,960 Speaker 4: fired from his position as a Massachusetts State police But 610 00:34:01,080 --> 00:34:05,200 Speaker 4: again I think the prosecution, they're stuck with him. They're 611 00:34:05,240 --> 00:34:06,920 Speaker 4: going to have to put him on the stand, and 612 00:34:06,960 --> 00:34:09,480 Speaker 4: they're going to have to do whatever they can to 613 00:34:09,560 --> 00:34:12,719 Speaker 4: try to limit his bad behavior and somehow try to 614 00:34:13,080 --> 00:34:17,840 Speaker 4: uphold his investigation by saying, hey, his investigation was legitimate. 615 00:34:18,280 --> 00:34:21,080 Speaker 4: All these comments he made about Karen Reid, he's been 616 00:34:21,120 --> 00:34:21,919 Speaker 4: punished for those. 617 00:34:22,280 --> 00:34:26,120 Speaker 2: I confess that I didn't follow the first case very closely. 618 00:34:26,480 --> 00:34:31,200 Speaker 2: So the defense has argued that someone else killed O'Keefe 619 00:34:31,440 --> 00:34:34,320 Speaker 2: during a party at a fellow officer's house and dumped 620 00:34:34,360 --> 00:34:37,399 Speaker 2: him outside, and that Reid has been framed in this 621 00:34:37,680 --> 00:34:45,080 Speaker 2: widespread conspiracy among law enforcement officers from different agencies, paramedics, 622 00:34:45,200 --> 00:34:47,320 Speaker 2: the homeowners, the after party. 623 00:34:47,400 --> 00:34:47,720 Speaker 1: Guess. 624 00:34:47,920 --> 00:34:51,240 Speaker 2: I mean, for the jury to believe that she didn't 625 00:34:51,280 --> 00:34:54,319 Speaker 2: do this, do they have to believe that there's such 626 00:34:54,400 --> 00:34:57,160 Speaker 2: a widespread conspiracy to frame her. 627 00:34:57,440 --> 00:34:59,680 Speaker 4: They don't have to believe that. They don't have to 628 00:34:59,680 --> 00:35:03,160 Speaker 4: believe that there's a conspiracy to frame her. But that 629 00:35:03,360 --> 00:35:06,880 Speaker 4: is the centerpiece of the defense case, and parts of 630 00:35:06,920 --> 00:35:10,600 Speaker 4: it are very compelling. I mean, there's some very very 631 00:35:10,640 --> 00:35:15,840 Speaker 4: strange things that took place in the investigation of this incident. 632 00:35:15,960 --> 00:35:19,480 Speaker 4: Once John O'Keefe was found in the snow, and yes, 633 00:35:19,600 --> 00:35:22,799 Speaker 4: there's law enforcement lived in the house. They were having 634 00:35:22,800 --> 00:35:27,520 Speaker 4: an after party there. Karen Reid and John O'Keeffe pulled 635 00:35:27,600 --> 00:35:30,600 Speaker 4: up to the house, and what happens at that point 636 00:35:30,760 --> 00:35:36,000 Speaker 4: going forward is hotly in dispute. The prosecution's position is 637 00:35:36,040 --> 00:35:40,040 Speaker 4: that Karen Reid and O'Keefe were in an argument. Karen 638 00:35:40,080 --> 00:35:43,759 Speaker 4: Reid was very drunk and when O'Keefe got out of 639 00:35:43,800 --> 00:35:46,040 Speaker 4: the car, she was so mad at him she backed 640 00:35:46,080 --> 00:35:49,680 Speaker 4: into him, knocked him unconscious, and he laid out in 641 00:35:49,760 --> 00:35:52,960 Speaker 4: the snow. She left the scene and he never woke up, 642 00:35:52,960 --> 00:35:56,400 Speaker 4: and he died out there in the snow. The defense position, 643 00:35:56,920 --> 00:35:58,960 Speaker 4: on the other hand, is that they may have been 644 00:35:59,000 --> 00:36:02,760 Speaker 4: in a fight, but reed left. John O'Keeffe went into 645 00:36:02,840 --> 00:36:05,800 Speaker 4: that house and was in that house for some period 646 00:36:05,800 --> 00:36:08,600 Speaker 4: of time that something happened in that house. There was 647 00:36:08,640 --> 00:36:12,920 Speaker 4: a fight or something, and he was killed and then 648 00:36:13,239 --> 00:36:16,040 Speaker 4: he was dumped out in the snow in the front yard. 649 00:36:16,320 --> 00:36:18,759 Speaker 4: And I know that sounds like a wild theory, but 650 00:36:18,880 --> 00:36:21,799 Speaker 4: it worked in the first trial. And there's actually some 651 00:36:22,120 --> 00:36:26,520 Speaker 4: testimony and evidence where it's an eyebrow raiser, like something 652 00:36:26,520 --> 00:36:29,680 Speaker 4: weird's going on here. So it's going to be interesting 653 00:36:29,719 --> 00:36:31,320 Speaker 4: how this second trial plays out. 654 00:36:31,719 --> 00:36:34,239 Speaker 2: Tell me what you think the strongest evidence for the 655 00:36:34,280 --> 00:36:37,520 Speaker 2: prosecution is and the strongest evidence for the defense. 656 00:36:38,080 --> 00:36:42,120 Speaker 4: The strongest evidence for the prosecution is Karen Reid's blood 657 00:36:42,120 --> 00:36:46,120 Speaker 4: alcohol level, which was very high, and by her own admissions, 658 00:36:46,239 --> 00:36:49,920 Speaker 4: she drank a lot that night. The relationship between her 659 00:36:49,920 --> 00:36:54,880 Speaker 4: and O'Keefe was deteriorating, and there's evidence that the rear 660 00:36:55,120 --> 00:36:59,239 Speaker 4: of her SUV there's a broken tail light, and there's 661 00:36:59,640 --> 00:37:02,960 Speaker 4: a lot of evidence that she backed into him, knocking 662 00:37:03,040 --> 00:37:06,560 Speaker 4: him down, knocking him unconscious, and that he never got 663 00:37:06,840 --> 00:37:09,520 Speaker 4: up because of the snow and the cold weather, and 664 00:37:09,560 --> 00:37:12,279 Speaker 4: he died a hypothermia and of his injuries. There's a 665 00:37:12,280 --> 00:37:15,479 Speaker 4: lot of evidence of that. But for the defense, there's 666 00:37:15,520 --> 00:37:19,480 Speaker 4: also some compelling evidence because of Michael Proctor and his 667 00:37:19,800 --> 00:37:25,440 Speaker 4: absolutely unprofessional investigation and his bias comments throughout the investigation, 668 00:37:26,200 --> 00:37:30,080 Speaker 4: and also the conduct of these other law enforcement officers 669 00:37:30,080 --> 00:37:32,760 Speaker 4: who were at this party and who lived in this house. 670 00:37:33,320 --> 00:37:36,040 Speaker 4: They never came out to give an interview. They said 671 00:37:36,080 --> 00:37:39,279 Speaker 4: that O'Keeffe never stepped foot in the house. There's a 672 00:37:39,320 --> 00:37:45,399 Speaker 4: lot of really suspicious things that took place that make 673 00:37:45,520 --> 00:37:50,520 Speaker 4: one perhaps have reasonable doubt about Reed's guilt. 674 00:37:50,840 --> 00:37:54,239 Speaker 2: It sounds a little like the OJ Simpson defense, you know, 675 00:37:54,320 --> 00:37:58,720 Speaker 2: the sloppy police work and the investigator is biased against him. 676 00:37:59,080 --> 00:38:02,080 Speaker 4: Well, it does, And you know what, I think everyone 677 00:38:02,120 --> 00:38:04,600 Speaker 4: who watched the first trial will agree that there was 678 00:38:04,680 --> 00:38:08,680 Speaker 4: sloppy police work, that some of the investigation was below par, 679 00:38:09,000 --> 00:38:12,239 Speaker 4: and that hurt the prosecution's case. And I think they 680 00:38:12,280 --> 00:38:15,960 Speaker 4: also agree that there's some evidence that just causes one 681 00:38:16,000 --> 00:38:19,000 Speaker 4: to say, we're not getting the whole story here. Something 682 00:38:19,120 --> 00:38:22,239 Speaker 4: doesn't quite add up. And so again, this is an 683 00:38:22,320 --> 00:38:25,960 Speaker 4: incidant without any witnesses. There's no one there's no video, 684 00:38:26,080 --> 00:38:31,080 Speaker 4: there's no eyewitness who saw what happened outside that home 685 00:38:31,280 --> 00:38:34,520 Speaker 4: that night. There's no one that can say for sure that, hey, 686 00:38:34,520 --> 00:38:36,920 Speaker 4: this car back to o'keef and hit him. There's no 687 00:38:36,960 --> 00:38:40,400 Speaker 4: one that can say that. It's all based upon forensic 688 00:38:40,480 --> 00:38:44,439 Speaker 4: evidence and digital evidence and iPhone evidence and things like that. 689 00:38:44,840 --> 00:38:48,200 Speaker 4: And on the other hand, there's really no compelling or 690 00:38:48,320 --> 00:38:51,440 Speaker 4: eyewitness testimony that o'keef went into the house and that 691 00:38:51,560 --> 00:38:54,600 Speaker 4: something happened in there. It's all kind of speculation and 692 00:38:54,760 --> 00:38:58,480 Speaker 4: conspiracy theories. That's what makes this case so fascinating. 693 00:38:58,920 --> 00:39:04,040 Speaker 2: There are also from Reid that the prosecution is going 694 00:39:04,160 --> 00:39:05,520 Speaker 2: to use against her. 695 00:39:05,719 --> 00:39:09,920 Speaker 4: Here's what Karen Reid may regret having done in the 696 00:39:09,960 --> 00:39:14,040 Speaker 4: past few months. Karen Reid did not testify at her 697 00:39:14,080 --> 00:39:17,200 Speaker 4: first trial, nor did she have to. She has every 698 00:39:17,320 --> 00:39:19,719 Speaker 4: right not to take the stand, and she didn't. In 699 00:39:19,760 --> 00:39:23,920 Speaker 4: the meantime, little did we know, she was assisting in 700 00:39:24,000 --> 00:39:28,000 Speaker 4: the filming of a documentary that's now been out on 701 00:39:28,160 --> 00:39:30,879 Speaker 4: Max called A Body in the Snow, where she gave 702 00:39:30,960 --> 00:39:35,279 Speaker 4: extensive interviews about what happened that night, at least her 703 00:39:35,360 --> 00:39:38,160 Speaker 4: version of what happened, and all sorts of things. And 704 00:39:38,239 --> 00:39:41,120 Speaker 4: since this trial, and she's given a lot of other 705 00:39:41,200 --> 00:39:44,239 Speaker 4: interviews to a lot of media outlets. So in this 706 00:39:44,360 --> 00:39:48,760 Speaker 4: second trial, the prosecution has ceased upon some of those 707 00:39:49,040 --> 00:39:51,560 Speaker 4: interviews and some of the statements she made in those 708 00:39:51,600 --> 00:39:55,480 Speaker 4: interviews that don't necessarily help her, and they've been able 709 00:39:55,520 --> 00:39:59,560 Speaker 4: to play those snippets to this jury. And so I 710 00:39:59,640 --> 00:40:03,960 Speaker 4: think so far that's actually hurt Karen Reid, the fact 711 00:40:04,000 --> 00:40:08,399 Speaker 4: that she decided to talk to the media and some 712 00:40:08,440 --> 00:40:11,920 Speaker 4: of the things she said don't help her cause. And 713 00:40:12,080 --> 00:40:14,319 Speaker 4: I think that may come back to haunt her in 714 00:40:14,400 --> 00:40:15,600 Speaker 4: this second trial. 715 00:40:16,520 --> 00:40:19,319 Speaker 2: And just tell us about some of the things that 716 00:40:19,960 --> 00:40:23,360 Speaker 2: give you pause and might give a juror pause about 717 00:40:23,360 --> 00:40:24,080 Speaker 2: her guilt. 718 00:40:24,680 --> 00:40:27,359 Speaker 4: There's things that just don't add up, Like he's got 719 00:40:27,360 --> 00:40:30,759 Speaker 4: all these scratches on his arm, and the defenses that's 720 00:40:30,800 --> 00:40:33,840 Speaker 4: from the dog bite the dog in the house, bid him. 721 00:40:34,040 --> 00:40:37,080 Speaker 4: Then mysteriously the owners of the dog in the house 722 00:40:37,120 --> 00:40:39,480 Speaker 4: they get rid of the dog. And these phone calls 723 00:40:39,640 --> 00:40:41,919 Speaker 4: between the people that were in the house that night, 724 00:40:42,120 --> 00:40:44,200 Speaker 4: like four in the morning, and this and that, and 725 00:40:44,280 --> 00:40:46,480 Speaker 4: you know, some of them have gone to their own houses. 726 00:40:46,719 --> 00:40:49,640 Speaker 4: So there's these phone calls back and forth, and Alan 727 00:40:49,760 --> 00:40:51,640 Speaker 4: Jackson was you know, got all these cell phone regor 728 00:40:51,719 --> 00:40:54,399 Speaker 4: Why why'd you call him at four in the morning, Oh, 729 00:40:54,440 --> 00:40:56,560 Speaker 4: that was a butt dial. Why did you call him 730 00:40:56,600 --> 00:40:58,400 Speaker 4: back at four oh one in the morning, Well that 731 00:40:58,480 --> 00:41:00,960 Speaker 4: was a butt dial too, And so there's all these 732 00:41:01,000 --> 00:41:03,560 Speaker 4: little things like that that add up that had this 733 00:41:03,760 --> 00:41:06,360 Speaker 4: jury saying, you know, we're not quite sure what happened, 734 00:41:06,440 --> 00:41:07,680 Speaker 4: so we're not going to convict her. 735 00:41:07,760 --> 00:41:10,720 Speaker 2: You can never tell what will be important to a jury. 736 00:41:11,080 --> 00:41:11,960 Speaker 1: Thanks so much, Dave. 737 00:41:12,560 --> 00:41:15,680 Speaker 2: That's trial attorney David Ring of Taylor and Ring. And 738 00:41:15,719 --> 00:41:17,880 Speaker 2: that's it for this edition of the Bloomberg Law Show. 739 00:41:18,200 --> 00:41:20,560 Speaker 2: Remember you can always get the latest legal news on 740 00:41:20,600 --> 00:41:24,880 Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 741 00:41:25,080 --> 00:41:30,120 Speaker 2: and at www dot bloomberg dot com, slash podcast slash Law, 742 00:41:30,520 --> 00:41:33,080 Speaker 2: and remember to tune into The Bloomberg Law Show every 743 00:41:33,160 --> 00:41:34,840 Speaker 2: weeknight at ten pm. 744 00:41:34,640 --> 00:41:35,520 Speaker 1: Wall Street Time. 745 00:41:36,080 --> 00:41:38,799 Speaker 2: I'm June Grosso and you're listening to Bloomberg