Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Speaker 2: It's been almost three years since the Supreme Court overturned
Speaker 2: Roe v. Wade and eliminated the constitutional right to abortion.
Speaker 2: But that wasn't the endpoint for the anti abortion movement.
Speaker 2: The next frontier is the battleover fetal personhood. That's according
Speaker 2: to an expert on the law of reproduction, Mary Ziegler,
Speaker 2: a professor at UC Davis Law School. Her latest book
Speaker 2: is entitled Personhood, the New Civil War over Reproduction. So, Mary,
Speaker 2: the idea of fetal personhood, I'm not sure I heard
Speaker 2: about it so much until the last few years, but
Speaker 2: you write that it's been the goal of the anti
Speaker 2: abortion movement since the nineteen sixties.
Speaker 3: Yeah, that's right, And I think in part you didn't
Speaker 3: stir about it because the anti abortion movement was fixated
Speaker 3: on a shorter term, kind of more realistical, which was
Speaker 3: the reversal of Weighe. So people who saw Row as
Speaker 3: kind of being the bulls eye weren't wrong. But I
Speaker 3: think what's become clear in the past few years was
Speaker 3: that that was never the endgame for the anti worship movement.
Speaker 3: They were not going to be content with letting each
Speaker 3: state set its own policy, and that really is clear
Speaker 3: when you dig into the history of where the movement
Speaker 3: came from and what it's been pursuing from the beginning.
Speaker 1: Tell us a little bit about that history.
Speaker 3: Yeah, so, just to start out with the levels that
Speaker 3: what fetal person put is is the claim not that
Speaker 3: just that human life begins when an egg is fertilized,
Speaker 3: or that when an egg is fertilized you have a separate,
Speaker 3: unique human being, it's also the claim that when that happens,
Speaker 3: constitutional rights begin. So initially that argument was kind of
Speaker 3: a strategy. So the anti worship movement in the sixties
Speaker 3: was starting to see states reform their criminal bands, which
Speaker 3: all dated from the nineteenth century, and arguments that had
Speaker 3: worked for decades to back up those bands were starting
Speaker 3: to fail. Arguments like well, if wegalize abortion, people will
Speaker 3: have sex outside of marriage, or we don't really need
Speaker 3: to legalize abortion because pregnancy isn't that unsafe anymore. Those
Speaker 3: arguments were falling flat. So some anti abortion activists, most
Speaker 3: of whom were Catholic at the time, began arguing that
Speaker 3: you just couldn't liberalize abortion laws because it was unconstitutional.
Speaker 3: But then these arguments kind of took on a life
Speaker 3: of their own. They became compelling to a range of conservatives,
Speaker 3: not just conservative Catholics. They really kind of lasted in
Speaker 3: the anti abortion movement for more than half a century
Speaker 3: as a rallying cry, even as I think it's pretty
Speaker 3: clear today and it was clear in the past, that
Speaker 3: people in the movement and outside the movement disagree on
Speaker 3: what it means to value feel life and what you'd
Speaker 3: have to do to enforce that, like what it would
Speaker 3: mean on the ground for ivs, for contraception, for abortion,
Speaker 3: even for pregnancy.
Speaker 2: So how do they move together if they don't have
Speaker 2: a clear definition of what fetal personhood means.
Speaker 3: Well, So for a long time, having a clear definition
Speaker 3: was an advantage, right, because female personhood for a long
Speaker 3: time was sort of like the moonshot, right, like the
Speaker 3: sort of dream that united everybody in the movement, and
Speaker 3: so no one really had to figure out the nitty
Speaker 3: gritty about what it would mean first a IBF for
Speaker 3: punishing women for abortion, because no one was going to
Speaker 3: be able to do any of those things because of
Speaker 3: ro What we've seen in a way now is that
Speaker 3: it's possible that the US Supreme Court could recognize feal
Speaker 3: person It's possible that state supreme courts could accord fetus's
Speaker 3: constitutional rights. It's possible that states could fill any clearly
Speaker 3: enforceable fetal rights. So now all these questions that were
Speaker 3: wants to sort of like an abstraction for people in
Speaker 3: the anti abortion movement are now a kind of pressing priority.
Speaker 3: And that's why we're starting to see more conflict about it.
Speaker 3: Right before everybody could kind of table those disagreements and
Speaker 3: get together and mobilize around the big picture. And that's
Speaker 3: no underly ef feasible alternative.
Speaker 1: More than and I didn't realize this either.
Speaker 2: More than a third of the states have fetal personhood
Speaker 2: laws on the books, and some have been on the
Speaker 2: books for decades.
Speaker 1: Where does that fit in.
Speaker 3: It's really unclear what's going to happen with those laws.
Speaker 3: So how those laws got going for a time was
Speaker 3: that anti abortion groups thought that they needed to kind
Speaker 3: of plant the seeds for constitutional fetal rights in areas
Speaker 3: that didn't have anything to do about abortion, because roe
Speaker 3: was this stumbling lack. So they began to, for example,
Speaker 3: focus on fetal homicide laws or laws that allowed wrongful
Speaker 3: death suits in the case of someone who died in utero.
Speaker 4: Right.
Speaker 3: So they're all of these strategies that feeded these laws
Speaker 3: in places that have protections in some instances for legal
Speaker 3: abortion or IBF were both, but a lot of the
Speaker 3: time it's sort of unclear how enforceable some of these
Speaker 3: laws are. Some of them just sound like throat clearing
Speaker 3: about the value of unborn la some of them are
Speaker 3: just narrow They apply in a specific legal context but
Speaker 3: not outside of it. So one of the really unpredictable
Speaker 3: things is which of these laws are state courts going
Speaker 3: to turn into meaningful limits and which are going to
Speaker 3: just remain kind of symbolic. So last year, when the
Speaker 3: Alabama Supreme Court issued a ruling that essentially halted IVF
Speaker 3: in that state, the state law had been on the
Speaker 3: books for a while, right, but no one had really
Speaker 3: known that the state supreme Court would or could turn
Speaker 3: it into something that essentially ended yes in the state
Speaker 3: for a time. So we're living in a reality now
Speaker 3: where anti abortion groups are trying to get more of
Speaker 3: these personhood laws on the books when we already have
Speaker 3: a lot of personhood laws on the books, and we
Speaker 3: just don't know how state courts and ultimately federal courts
Speaker 3: are going to look at them. The endgame there, of course,
Speaker 3: is not just a state by state approach either. It's
Speaker 3: to create a kind of conservative chorus of demands for
Speaker 3: fetal personhood that anti abortion lawyers can point to in
Speaker 3: the US Supreme Court, just as they pointed to red
Speaker 3: state demands to overall row right. So the goal eventually
Speaker 3: is a federal judicial decision, not a state outcome. But
Speaker 3: the state outcomes are part of that bigger picture.
Speaker 2: Is there disagreement about the legal path to secure fetal
Speaker 2: personhood or has there been disagreement?
Speaker 4: Yeah?
Speaker 3: There has I mean I think at the moment there's
Speaker 3: definitely a focus on the federal judiciary for the unsurprising
Speaker 3: reason that anti abortion groups have been taking some losses
Speaker 3: when it comes to voters. Right, voters have been reluctant
Speaker 3: to even embrace the bands that are already on the books,
Speaker 3: much less fetal personhood, which, if you understand it the
Speaker 3: way abortion opponents have, it could essentially make it unconstitutional
Speaker 3: for a blue state or swing state or a red
Speaker 3: state to pass about initiative unreproductive rights or a law
Speaker 3: protecting ibs. So abortion opponents, I think are aware that
Speaker 3: that would not be an easy agenda to sell the
Speaker 3: voters right now, So there's broad consensus that the only
Speaker 3: way forward is to rely on the US Supreme Court.
Speaker 3: There's only five conservative justices you need to persuade to
Speaker 3: get that outcome versus you know, a majority of American
Speaker 3: voters in any state, much less nationwide. So there's consensus there,
Speaker 3: But once you get beyond that big picture, there's a
Speaker 3: lot of infighting, and I think we started to see
Speaker 3: that more and more with each legislative session.
Speaker 2: So let's discuss the Dobbs decision, which, for the first
Speaker 2: time the Court took away a constitutional right and what
Speaker 2: many see as a flawed opinion by Justice Samuel Alito,
Speaker 2: particularly with his interpretation of history. Yeah.
Speaker 3: Well, one of the really interesting features of Dobbs is,
Speaker 3: on the one hand, Dobbs doesn't say anything about fetal rights,
Speaker 3: and that was surprising, right. I think most people were
Speaker 3: expecting at least one of the justices to reference these
Speaker 3: theories about fetal rights that abortion opponents had developed and
Speaker 3: that we're in the Amikus briefs or friend of Court
Speaker 3: priests and dogs. On the other hand, the account of
Speaker 3: history that Justice Alito gives in Dobbs, which is essentially
Speaker 3: in Justice Alito's version of things, abortion was always criminalized,
Speaker 3: or at least viewed with disfavor, and that both establishes
Speaker 3: that there couldn't be a right to abortion in the
Speaker 3: eyes of personhood proponents. It also suggests that the framers
Speaker 3: of the Constitution viewed thetuses as people with constitutional rights. Now,
Speaker 3: you know, the Court doesn't formally embrace that, but it's
Speaker 3: easy to see a parallel between the way people who
Speaker 3: embrace fetal personhood see our past and the way Dobbs
Speaker 3: portrays our past, which is one of the reasons we've
Speaker 3: seen I think people get energized about the idea that
Speaker 3: the Supreme Court may embrace this idea of fetal person
Speaker 3: had later, even if it's not likely to do so today.
Speaker 2: You know, I would say that that's like a far
Speaker 2: flung theory and the Court won't embrace it. But then
Speaker 2: I thought that the Court would not get rid of
Speaker 2: the constitutional right to abortion. I mean, have you seen
Speaker 2: in the concurrences or the sense of any of the
Speaker 2: justices this embrace of fetal personhood.
Speaker 1: I think Alito did say, correct me.
Speaker 2: If I'm wrong in Dabbs something like life begins at conception.
Speaker 3: Yeah, I mean it's hard to say. I think you're
Speaker 3: really tewa freading if you're trying to get a definitive account.
Speaker 3: I think the problem for the fetal person to movement
Speaker 3: at the moment in some ways is justice spread Kavanaugh,
Speaker 3: who wrote a concurrence in Dobbs, more or less committing
Speaker 3: himself to the position that the Constitution doesn't protect any
Speaker 3: right having to do with abortion, whether a fetal right
Speaker 3: or right for women or anything. Really, and so that
Speaker 3: doesn't mean Kavanaugh can't change his mind or backpedal, but
Speaker 3: it's going to take I think time and lots of
Speaker 3: this sort of state by state work to convince him
Speaker 3: to change his mind. Having said that, the majority in Dogs,
Speaker 3: as you point out, relies a lot on the importance
Speaker 3: of unborn life. And how that shows up in particular
Speaker 3: is the court work is accused by the descending justices
Speaker 3: and some of the parties of threatening other rights like
Speaker 3: the right to contraception, the right for same sex marriage,
Speaker 3: rights inter racial marriage, and justice. Alito's response to all
Speaker 3: of that is abortion is different because it takes potential
Speaker 3: life or unborn life, which is certainly not a full
Speaker 3: blown embrace of fetal personhood, but it's also certainly consistent
Speaker 3: with the idea of fetal personhood. So again, do I
Speaker 3: think the Supreme Court's going to embrace fetal personhood tomorrow? No,
Speaker 3: and neither does anybody in the anti abortion movement. That's
Speaker 3: not true. There are definitely people who are pretty in
Speaker 3: federal court litigating about it, but a lot of them
Speaker 3: are thinking this is sort of the next great White whale, right,
Speaker 3: this is the next getting rid of Roby Wade, and
Speaker 3: it's it's a project that could take a decade or
Speaker 3: more and obviously might take further transformation of the Supreme Court.
Speaker 3: We know Donald Trump will have an opportunity potentially to
Speaker 3: nominate some justices, but the question will be whether he
Speaker 3: can actually move the court considerably to the right, or
Speaker 3: whether instead he'll be replacing some of the most conservative
Speaker 3: members of the court and kind of firming up the
Speaker 3: status quo.
Speaker 2: Does fetal personhood go hand in hand with criminalization of
Speaker 2: abortion well in.
Speaker 3: The United States today. Yes. One of the interesting questions
Speaker 3: that sort of drove this fight about personhood was does
Speaker 3: valuing fetal life or recognizing fetal rights require you to criminalize,
Speaker 3: you know, abortion, helping people get abortions, IDs, helping people
Speaker 3: get ivs, Like, what does that look like? And at
Speaker 3: various points you would have abortion opponents give the answer
Speaker 3: that some other countries have given, which is that if
Speaker 3: you recognize fetal rights, the best way to do that
Speaker 3: is to give more rights to the person carrying that life,
Speaker 3: the pregnant woman, right. And the way you would do
Speaker 3: that would be, for example, to give that person more
Speaker 3: financial support, access to prenatal care. It's not inevitable to
Speaker 3: assume that the way you protect life in the womb
Speaker 3: is by criminalizing anything. Right. But I think over time,
Speaker 3: for a whole bunch of reasons, having everything to do
Speaker 3: with the increase in rates and of incarceration in the US,
Speaker 3: did the partnership the anti abortion movement formed with the
Speaker 3: Republican Party. The US anti abortion movement has increasingly equated
Speaker 3: rights for an unborn child or embryo or fetus with criminalization.
Speaker 3: So I think one of the things you learned from
Speaker 3: the history is one this is a sort of bizarre
Speaker 3: and uniquely American answer to this question, but also too
Speaker 3: that there may be other answers to the question. And
Speaker 3: you see this sometimes even in polling QW in May
Speaker 3: twenty twenty two, not long before Dobbs, found that a
Speaker 3: full third of people responding to the poll said they
Speaker 3: thought life began at conception and fetus, this had rights,
Speaker 3: and that abortion shouldn't be criminalized. So even now in
Speaker 3: the United States, as polarized as we are, there's some
Speaker 3: Americans who think along those lines, right. So one interesting
Speaker 3: question is would it be possible to have that kind
Speaker 3: of dialogue again or are we so kind of mired
Speaker 3: in this fight about criminalization that there's no way to
Speaker 3: think or talk like that at the present.
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 2: this conversation with You See Davis Law professor Mary Ziegler.
Speaker 2: We'll talk about the next battleground in the war over abortion.
Speaker 2: I'm June Grosso and you're listening to Bloomberg. I've been
Speaker 2: talking to Professor Mary Ziegler of You See Davis Law
Speaker 2: School about her new book entitled Personhood The New Civil.
Speaker 1: War over Reproduction.
Speaker 2: So let's discuss the Dobbs decision, which for the first time,
Speaker 2: the court took away a constitutional right and what many
Speaker 2: see as a flawed opinion by Justice Samuel Leto, particularly
Speaker 2: with his interpretation of history. Yeah.
Speaker 3: Well, one of the interesting features of Dobbs is, on
Speaker 3: the one hand, Dobbs doesn't say anything about fetal rights,
Speaker 3: and that was surprising, right. I think most people were
Speaker 3: expecting at least one of the justices to reference these
Speaker 3: theories about fetal rights that abortion opponents had developed, and
Speaker 3: that we're in the Amikus briss Or Friend of Court
Speaker 3: Priests and Dobs. On the other hand, the account of
Speaker 3: history that Justice Alito gives in Dobbs, which is essentially
Speaker 3: in Justice Alito's version of things, abortion was always criminalized
Speaker 3: or at least viewed with disfavor, and that both establishes
Speaker 3: that there couldn't be a right to abortion in the
Speaker 3: eyes of personhood proponents. It also suggests that the framers
Speaker 3: of the Constitution viewed thetuses as people with constitutional rights. Now,
Speaker 3: you know, the Court doesn't formally embrace that, but it's
Speaker 3: easy to see a parallel between the way people who
Speaker 3: embrace fetal personhold see our past and the way Dobbs
Speaker 3: portrays our past, which is one of the reasons we've seen.
Speaker 3: I think people get energized about the idea that the
Speaker 3: Supreme Court may embrace this idea of fetal person had later,
Speaker 3: even if it's not likely to do so today.
Speaker 2: You know, I would say that that's like a far
Speaker 2: flung theory and the Court won't embrace it. But then
Speaker 2: I thought that the Court would not get rid of
Speaker 2: the constitutional right to abortion. I mean, have you seen
Speaker 2: in the concurrences or the sense of any of the
Speaker 2: justices this embrace of fetal personhood.
Speaker 1: I think Alito did say.
Speaker 2: Correct me if I'm wrong in Dabs something like life
Speaker 2: begins at conception.
Speaker 3: Yeah, I mean it's hard to say. I think you're
Speaker 3: really tewy freading if you're trying to get a definitive account.
Speaker 3: I think the problem for the fetal Persons of movement
Speaker 3: at the moment, in some ways is justice spread Kavanaugh,
Speaker 3: who wrote a concurrence in Dobbs more or less committing
Speaker 3: himself to the position that the Constitution doesn't protect any
Speaker 3: right having to do with abortion, whether a fetal right
Speaker 3: or right for women or anything. Really, And so that
Speaker 3: doesn't mean Kavanaugh can't change his mind or backpedal, but
Speaker 3: it's going to take I think time and lots of
Speaker 3: this sort of state by state work to convince him
Speaker 3: to change. Having said that, the majority in Dogs, as
Speaker 3: you point out, relies a lot on the importance of
Speaker 3: unborn life. And how that shows up in particular, is
Speaker 3: the Court is accused by the descending justices and some
Speaker 3: of the parties of threatening other rights like the right
Speaker 3: to contraception, the right for same sex marriage, rights, interracial marriage,
Speaker 3: and justice. Alito's response to all of that is abortion
Speaker 3: is different because it takes potential life or unborn life,
Speaker 3: which is certainly not a full blown embrace of fetal personhood,
Speaker 3: but it's also certainly consistent with the idea of fetal personhood.
Speaker 3: So again, do I think the Supreme Court's going to
Speaker 3: embrace fetal personhood tomorrow? No, And neither does anybody in
Speaker 3: the anti abortion movement. Oh that's not true. There are
Speaker 3: definitely people who are party in Federal Court litigating about it,
Speaker 3: but a lot of them are thinking this is sort
Speaker 3: of the next great white whale, right, this is the
Speaker 3: next getting rid of Roby Wade, And it's it's a
Speaker 3: project that could take, you know, a decade or more,
Speaker 3: and obviously might take further transformation of the Supreme Court.
Speaker 3: We know Donald Trump will have an opportunity potentially to
Speaker 3: nominate some justices, but the question will be whether he
Speaker 3: can actually move the court considerably to the right or
Speaker 3: whether instead he'll be replacing some of the most conservative
Speaker 3: members of the court and kind of firming up the
Speaker 3: status quo.
Speaker 2: Does fetal personhood go hand in hand with criminalization of abortion?
Speaker 3: Well in the United States today.
Speaker 1: Yes.
Speaker 3: One of the interesting questions that sort of drove this
Speaker 3: fight about personhood was does valuing fetal life or recognizing
Speaker 3: fetal rights require you to criminalize you know, abortion, helping
Speaker 3: people get abortions, IDs, helping people get ivs? Like, what
Speaker 3: does that look like? And at various points you would
Speaker 3: have abortion opponents give the answer that some other countries
Speaker 3: have given, which is that if you recognize fetal rights,
Speaker 3: the best way to do that is to give more
Speaker 3: rights to the person carrying that life, the pregnant woman, right.
Speaker 3: And the way you would do that would be, for example,
Speaker 3: to give that person more financial support, access to prenatal care.
Speaker 3: It's not inevitable to assume that the way you protect
Speaker 3: life in the womb is by criminalizing anything, right, But
Speaker 3: I think over time, for a whole bunch of reasons,
Speaker 3: having everything to do with the increase in rates of
Speaker 3: incarceration in the US. Did the partnership the anti abortion
Speaker 3: movement formed with the Republican Party. The US anti abortion
Speaker 3: movement has increasingly equated rights for an unborn child or
Speaker 3: embryo or fetus with criminalization. So I think one of
Speaker 3: the things you learned from the history is one this
Speaker 3: is a sort of bizarre and uniquely American answer to
Speaker 3: this question, but also too that there may be other
Speaker 3: answers to the question. And you see this sometimes even
Speaker 3: in polling QW in May twenty twenty two, not long
Speaker 3: before Dobbs found that a full third of people responding
Speaker 3: to the poll said they thought life began a ca
Speaker 3: inception and fetus's head rights and that abortion shouldn't be criminalized.
Speaker 3: So even now in the United States, as polarized as
Speaker 3: we are, there's some Americans who think along those lines, right.
Speaker 3: So one interesting question is would it be possible to
Speaker 3: have that kind of dialogue again or are we so
Speaker 3: kind of mired in this fight about criminalization that there's
Speaker 3: no way to think or talk like that at the present.
Speaker 2: You mentioned the case in Alabama where people suddenly woke
Speaker 2: up to the fact that in vitro fertilization was in jeopardy.
Speaker 2: How does fetal personhood affect in vitro fertilization and contraception.
Speaker 3: Yeah, with respect to in vitro fertilization, obviously, the anti
Speaker 3: abortion movement has become much more outspoken about in vitro
Speaker 3: fertilization as it's become more outspoken about personhood. Right if
Speaker 3: you're in the archives of these groups, they've been involved
Speaker 3: with both a long time that now those I think
Speaker 3: demands have become more open and more pressing. There's different
Speaker 3: positions in the been about whether recognizing personhood would require
Speaker 3: that IBS be more or less shut down. The majority
Speaker 3: position is that IVF would have to be radically changed,
Speaker 3: essentially in a way that would require that only one
Speaker 3: embryo could be created and implanted at a time, because
Speaker 3: personhood is inconsistent with either the destruction of embryos or
Speaker 3: the indefinite preservation of embryos. So that of course would
Speaker 3: have pretty major impacts on families using IVS. It would
Speaker 3: increase its cost, it would decrease its efficacy. It maybe
Speaker 3: sort of drive IVF under simply by making it so
Speaker 3: ineffective that it wouldn't have much appeal to families struggling
Speaker 3: with infertility. The effects on contraception are a little bit
Speaker 3: different because a lot of groups that believe in personhood
Speaker 3: have deep disagreements about how common contraceptives work. They reject
Speaker 3: the conclusions drawn by groups like ACOG about what defines
Speaker 3: the pregnancy and about how, for example, emergency contraceptive IDs
Speaker 3: or even the birth control pill work. So they argue
Speaker 3: that all of those common contraceptives in fact operate as abortizations,
Speaker 3: and therefore, to the extent personhood requires us and worship,
Speaker 3: it also requires us to end access to those common contraceptives.
Speaker 2: To me, the numbers were stunning that in twenty twenty
Speaker 2: three and twenty twenty four there are more than a
Speaker 2: million abortions in the US, and that's some of the
Speaker 2: highest numbers in a decade.
Speaker 1: So how does that equate with.
Speaker 2: The end of the constitutional right to abortion?
Speaker 3: I think history teaches us that absent really extraordinary circumstances,
Speaker 3: what tends to drive the abortion beat is not just
Speaker 3: supply meaning how accessible is abortion, but also demand right.
Speaker 3: So what is happening in people's lives that they're considering
Speaker 3: terminating a pregnancy, and that can have any things to
Speaker 3: do with access to contraception, the health of the economy, inflation,
Speaker 3: even at an individual level, people's health outcomes, exposure to racism. Right,
Speaker 3: people are making these decisions about whether they themselves skill
Speaker 3: they can have a child or another child given their
Speaker 3: present reality. So it's unsurprising that states are unable to
Speaker 3: eliminate demand. They're not necessarily even trying very hard to
Speaker 3: eliminate demand. There's not been a lot of state provided
Speaker 3: new resources since dogs. States that said, have mostly outsourced
Speaker 3: that task to private religious charities. So I think we're
Speaker 3: not likely to see that change, and that's borne out
Speaker 3: by history too. It's very hard to criminalize your way
Speaker 3: into eliminating a phenomenon, whether that's abortion or drinking alcohol.
Speaker 3: I think usually more needs to be done to even
Speaker 3: make any kind of significant difference if that's what your
Speaker 3: goal is.
Speaker 2: What do you think the next big fight is for
Speaker 2: abortion opponents? Is it the Commps Stock Act, is it
Speaker 2: shield laws or is it something different?
Speaker 3: Yeah, I think the most likely short term battle is
Speaker 3: probably going to be over Sheila's And the reason I
Speaker 3: say that is because what the anti abortion movement would
Speaker 3: like before fetal personhood. What it would like first from
Speaker 3: President Trump is judges who would be sympathetic to fetal personhood.
Speaker 3: Donald Trump has four years to transform the federal courts
Speaker 3: again and to put more people on the courts like
Speaker 3: Matthew Pasmerrick, who's already needed coded references to personhood and
Speaker 3: his opinions. The second thing they want in the short
Speaker 3: term would be some kind of federal limit on abortion,
Speaker 3: like the interpretation of the Compstock Act as a band
Speaker 3: or a change in the rules governing access to with
Speaker 3: a pristone. But you know, we're past one hundred daymark
Speaker 3: of the Trump administration, and while we have no idea
Speaker 3: necessarily what's coming next, Trump has been moving at a
Speaker 3: breakneck speed on his other priorities and has not done
Speaker 3: much on abortion. So I think we're starting to see
Speaker 3: anti abortion groups look for other ways forward. And one
Speaker 3: of the things I think they're trying to do by
Speaker 3: attacking shie laws is to create a precedent where red
Speaker 3: states can project their power across state lines, even if
Speaker 3: the Trump administration is not ready to have some kind
Speaker 3: of top down mandate that would shut down access in
Speaker 3: blue states.
Speaker 2: Finally, Mary, what was your main goal in writing the book?
Speaker 2: What do you hope people will get from reading it?
Speaker 3: Well? I think in part I was reacting to the
Speaker 3: fact that people seem to think that it was over
Speaker 3: after Dobbs, at least for the anti abortion side, and
Speaker 3: the fight was going to be a fight about when
Speaker 3: and whether reproductive rights were going to come back at
Speaker 3: the national level. And I think people fundamentally misunderstood that
Speaker 3: the fight wasn't over for conservatives either, and that reproductive
Speaker 3: rights could be much more restricted than they currently are,
Speaker 3: and to understand that if that happened, it would have
Speaker 3: implications not just for people who are abortion seekers, but
Speaker 3: for lots of other people too. So to kind of
Speaker 3: help people to understand where are we really now that
Speaker 3: Roe is gone? And the answer is, you know, we
Speaker 3: don't know. But it's not necessarily going to be a
Speaker 3: path toward the restoration of something like Roe. It could
Speaker 3: very much go in the other direction, particularly with Donald
Speaker 3: Trump's judges taking seats in sports across the country. So
Speaker 3: I think waking people up to that reality and showing
Speaker 3: them that that reality would have stakes for them, even
Speaker 3: if they don't anticipate ever wanting an abortion or even
Speaker 3: being willing to have an abortion.
Speaker 2: It's always important to see the whole picture, and I
Speaker 2: think your book helps us do that. Thanks so much
Speaker 2: for joining me. Mary. That's Professor Mary Ziegler of UC
Speaker 2: Davis Law School. Once again, her book is Personhood, the
Speaker 2: New Civil War over reproduction. Perhaps it's the public's fascination
Speaker 2: with true crime and conspiracy theories that's made Karen Reid's
Speaker 2: second murder trial must see viewing. Reid's first trial was
Speaker 2: twenty nine days of testimony inside and outside the courtroom.
Speaker 2: A Boston police officer killed during a blizzard and left
Speaker 2: to die in the snow with no eye witnesses his girlfriend,
Speaker 2: a well to do white female, charged with murder, the
Speaker 2: defense allegations of an extensive frame up and a police
Speaker 2: cover up, and finally the jury deadlocked and unable to
Speaker 2: reach a verdict. Her second trial promises to be more
Speaker 2: of the same, although this time the prosecution called the
Speaker 2: victim's mother Peggy o'keef.
Speaker 4: He's bruised up, his eyes were closed.
Speaker 2: She recalled Karen Reid, shouting at her in the hospital hallway.
Speaker 1: Peg is he dead? As he did? Peg?
Speaker 4: Peg?
Speaker 3: Is he did?
Speaker 2: Joining me? His trial attorney David Ring, a partner at
Speaker 2: Tailor and Ring Dave. The first time around, the trial
Speaker 2: judge declared a mistrial after the jury said it was deadlocked.
Speaker 2: Never asked them why they were hung up, but several
Speaker 2: jurors reached out to defense attorneys tell us what has so.
Speaker 4: In the first trial, Karen Reid was charged with three counts,
Speaker 4: the most serious being the second degree murder, and then
Speaker 4: the next, also very serious, was vehicular manslaughter while intoxicated,
Speaker 4: and the third count was leaving the scene of a
Speaker 4: serious injury. Well after several days of deliberations that the
Speaker 4: jurors had sent several notes to the judge saying they
Speaker 4: had had an impasse, and so finally, when it became
Speaker 4: clear they couldn't reach a verdict, the judge declared a mistrial.
Speaker 4: The only problem with that was neither the judge or
Speaker 4: the defense attorneys said, hey, had you reached a verdict
Speaker 4: on any of the three counts. They just assumed that
Speaker 4: they meant they had an impass on all three counts. So,
Speaker 4: after this mistrial was declared, some of the jurors came
Speaker 4: forward and told the defense attorney that the jury had
Speaker 4: in fact acquitted Karen Reid of second degree murder and
Speaker 4: of leaving the scene of a serious injury. They had
Speaker 4: taken those verdicts in court, she wouldn't be facing those
Speaker 4: same charges again in her second trial. And so the
Speaker 4: defense from the last few months has tried to get
Speaker 4: some court to listen to that argument, and they've been
Speaker 4: unsuccessful each and every time. Why because those verdicts were
Speaker 4: never announced in open court.
Speaker 1: Yeah.
Speaker 2: So Reid even found a petition with the US Supreme
Speaker 2: Court arguing that a second trial on those counts, the
Speaker 2: jury had reached a unanimous but unannounced verdict of acquittal
Speaker 2: should be barred by the double jeopardy clause. But the
Speaker 2: court turned her down. It seemed like a real reach
Speaker 2: to me, basing it on what happened in the jury
Speaker 2: room that wasn't announced in the court room when you're
Speaker 2: not supposed to delve into jury deliberations.
Speaker 4: That's exactly right, and that's why they were unsuccessful. And
Speaker 4: there are several appeals to try to have this double
Speaker 4: jeopardy argument heard by a court. Look, if the judge
Speaker 4: in the first trial had said, hey, jury, have you
Speaker 4: reached a verdict on any of the three counts, the
Speaker 4: jury would have said, yes, we have, and then it
Speaker 4: would have been announced in court and now she'd only
Speaker 4: be facing one count of vehicular manslaughter. But because that
Speaker 4: did not happen, she's facing a second degree murder charge
Speaker 4: along with the vehicular manslaughter.
Speaker 2: The second trial compared to the first, what does a
Speaker 2: retrial mean?
Speaker 1: Usually?
Speaker 2: I think that a retrial favors the prosecution because you
Speaker 2: know what the defense is going to be. But this
Speaker 2: case is so different. Does one side have an upper
Speaker 2: hand on a retrial?
Speaker 4: Well, boy, you know, I agree with you that generally speaking,
Speaker 4: a second trial generally favors the prosecution for that exact reason,
Speaker 4: because there's no surprises, and the prosecution knows maybe where
Speaker 4: they can improve from the first trial. They've seen all
Speaker 4: the witnesses, they've probably talked to some of the jurors
Speaker 4: said Okay, why weren't you convinced beyond a reasonable doubt?
Speaker 4: And they fix all that for the second trial. In
Speaker 4: this particular case, it is going to be very interesting
Speaker 4: because both sides have some very compelling evidence and arguments
Speaker 4: that favor their respective positions, and I'm not sure that's
Speaker 4: going to change at all in the second trial. I'm
Speaker 4: not sure it can change at all, and it very
Speaker 4: well could be we end up with another jury that's
Speaker 4: reaching them pass and can't make a decision. But time
Speaker 4: will tell.
Speaker 2: What do you know that the prosecution and the defense
Speaker 2: have the second time around that they didn't have the
Speaker 2: first time around.
Speaker 4: Well, a couple things, And one of the most important
Speaker 4: things for the prosecution is they have a new prosecutor.
Speaker 4: And I think it's fair to say that in the
Speaker 4: first trial the prosecutor was underwhelming, to say the least.
Speaker 4: He just was not charismatic and he did not put
Speaker 4: together a coherent, compelling case we've already seen. In this
Speaker 4: second trial, they brought in a special prosecutor. He's really
Speaker 4: a defense attorney. They brought him in specifically to try
Speaker 4: this second trial. They're allowed to do that names Hank Brennan,
Speaker 4: and you can tell already he knows how to put
Speaker 4: on a compelling case and he's doing it in a
Speaker 4: very very compelling manner as to how he's presented witnesses
Speaker 4: so far. The other important thing that's going to be
Speaker 4: different in this second case is that this judge has
Speaker 4: curtailed or limited some of the evidence that the defense
Speaker 4: was able to put forward in the first trial, and
Speaker 4: one of the most significant ones is the defense kind
Speaker 4: of pointed the finger at some of these other people
Speaker 4: in the house, saying, hey, these people had a motive
Speaker 4: for perhaps getting in a fight and even killing John O'Keeffe.
Speaker 4: And the judge has already spent one of those people aside,
Speaker 4: say you can't point the finger at that person, there's
Speaker 4: no evidence of that, and very well may do it
Speaker 4: for some others, which you know, that was a big
Speaker 4: part of the defense arguments in the first case, was
Speaker 4: pointing the finger at some of these people who lived
Speaker 4: in the home, and John O'Keefe was found in the
Speaker 4: snow dead outside of that home.
Speaker 1: Something that I've never heard of before.
Speaker 2: But one of the jurors from the first trial was
Speaker 2: a lawyer, and she's now on the defense team.
Speaker 1: She's not a criminal lawyer. It just strikes me as odd,
Speaker 1: very odd.
Speaker 4: I mean, this case has it all, it really does.
Speaker 4: You have a juror from trial on who now is
Speaker 4: working for the defense team on trial too. I'm not
Speaker 4: sure I've seen that before ever, So that's highly unusual.
Speaker 4: And let's face that Karen Reid has assembled a very
Speaker 4: very impressive defense team. Alan Jackson's one of the finest
Speaker 4: criminal defense lawyers in the nation, and he did a
Speaker 4: fabulous job in the first trial. I'm sure he'll do
Speaker 4: a fabulous job in this second trial. She also just
Speaker 4: has a team of lawyers. They come into the court room.
Speaker 4: It's like a small law It's pretty amazing. But she
Speaker 4: certainly not hurting for having legal help in this second trial.
Speaker 2: And we can expect the defense to once again attack
Speaker 2: former state trooper Michael Proctor, who led the investigation but
Speaker 2: has since been fired.
Speaker 4: And that was a huge part of I think why
Speaker 4: we saw a jury unable to reach a decision because
Speaker 4: the lead investigator, whose name is Michael Proctor, engaged in
Speaker 4: serious misconduct in the course of this investigation. You know,
Speaker 4: he texted some very vulgar comments about Karen Reed to
Speaker 4: other police officers and to his friends and really showed
Speaker 4: a bias against her, you know, a bias in investigating her.
Speaker 4: And the defense seized on that and said this was
Speaker 4: a biased investigation from the start. So jump ahead, now
Speaker 4: we're in the second trial. Well, Michael Proctor has been
Speaker 4: fired from his position as a Massachusetts State police But
Speaker 4: again I think the prosecution, they're stuck with him. They're
Speaker 4: going to have to put him on the stand, and
Speaker 4: they're going to have to do whatever they can to
Speaker 4: try to limit his bad behavior and somehow try to
Speaker 4: uphold his investigation by saying, hey, his investigation was legitimate.
Speaker 4: All these comments he made about Karen Reid, he's been
Speaker 4: punished for those.
Speaker 2: I confess that I didn't follow the first case very closely.
Speaker 2: So the defense has argued that someone else killed O'Keefe
Speaker 2: during a party at a fellow officer's house and dumped
Speaker 2: him outside, and that Reid has been framed in this
Speaker 2: widespread conspiracy among law enforcement officers from different agencies, paramedics,
Speaker 2: the homeowners, the after party.
Speaker 1: Guess.
Speaker 2: I mean, for the jury to believe that she didn't
Speaker 2: do this, do they have to believe that there's such
Speaker 2: a widespread conspiracy to frame her.
Speaker 4: They don't have to believe that. They don't have to
Speaker 4: believe that there's a conspiracy to frame her. But that
Speaker 4: is the centerpiece of the defense case, and parts of
Speaker 4: it are very compelling. I mean, there's some very very
Speaker 4: strange things that took place in the investigation of this incident.
Speaker 4: Once John O'Keefe was found in the snow, and yes,
Speaker 4: there's law enforcement lived in the house. They were having
Speaker 4: an after party there. Karen Reid and John O'Keeffe pulled
Speaker 4: up to the house, and what happens at that point
Speaker 4: going forward is hotly in dispute. The prosecution's position is
Speaker 4: that Karen Reid and O'Keefe were in an argument. Karen
Speaker 4: Reid was very drunk and when O'Keefe got out of
Speaker 4: the car, she was so mad at him she backed
Speaker 4: into him, knocked him unconscious, and he laid out in
Speaker 4: the snow. She left the scene and he never woke up,
Speaker 4: and he died out there in the snow. The defense position,
Speaker 4: on the other hand, is that they may have been
Speaker 4: in a fight, but reed left. John O'Keeffe went into
Speaker 4: that house and was in that house for some period
Speaker 4: of time that something happened in that house. There was
Speaker 4: a fight or something, and he was killed and then
Speaker 4: he was dumped out in the snow in the front yard.
Speaker 4: And I know that sounds like a wild theory, but
Speaker 4: it worked in the first trial. And there's actually some
Speaker 4: testimony and evidence where it's an eyebrow raiser, like something
Speaker 4: weird's going on here. So it's going to be interesting
Speaker 4: how this second trial plays out.
Speaker 2: Tell me what you think the strongest evidence for the
Speaker 2: prosecution is and the strongest evidence for the defense.
Speaker 4: The strongest evidence for the prosecution is Karen Reid's blood
Speaker 4: alcohol level, which was very high, and by her own admissions,
Speaker 4: she drank a lot that night. The relationship between her
Speaker 4: and O'Keefe was deteriorating, and there's evidence that the rear
Speaker 4: of her SUV there's a broken tail light, and there's
Speaker 4: a lot of evidence that she backed into him, knocking
Speaker 4: him down, knocking him unconscious, and that he never got
Speaker 4: up because of the snow and the cold weather, and
Speaker 4: he died a hypothermia and of his injuries. There's a
Speaker 4: lot of evidence of that. But for the defense, there's
Speaker 4: also some compelling evidence because of Michael Proctor and his
Speaker 4: absolutely unprofessional investigation and his bias comments throughout the investigation,
Speaker 4: and also the conduct of these other law enforcement officers
Speaker 4: who were at this party and who lived in this house.
Speaker 4: They never came out to give an interview. They said
Speaker 4: that O'Keeffe never stepped foot in the house. There's a
Speaker 4: lot of really suspicious things that took place that make
Speaker 4: one perhaps have reasonable doubt about Reed's guilt.
Speaker 2: It sounds a little like the OJ Simpson defense, you know,
Speaker 2: the sloppy police work and the investigator is biased against him.
Speaker 4: Well, it does, And you know what, I think everyone
Speaker 4: who watched the first trial will agree that there was
Speaker 4: sloppy police work, that some of the investigation was below par,
Speaker 4: and that hurt the prosecution's case. And I think they
Speaker 4: also agree that there's some evidence that just causes one
Speaker 4: to say, we're not getting the whole story here. Something
Speaker 4: doesn't quite add up. And so again, this is an
Speaker 4: incidant without any witnesses. There's no one there's no video,
Speaker 4: there's no eyewitness who saw what happened outside that home
Speaker 4: that night. There's no one that can say for sure that, hey,
Speaker 4: this car back to o'keef and hit him. There's no
Speaker 4: one that can say that. It's all based upon forensic
Speaker 4: evidence and digital evidence and iPhone evidence and things like that.
Speaker 4: And on the other hand, there's really no compelling or
Speaker 4: eyewitness testimony that o'keef went into the house and that
Speaker 4: something happened in there. It's all kind of speculation and
Speaker 4: conspiracy theories. That's what makes this case so fascinating.
Speaker 2: There are also from Reid that the prosecution is going
Speaker 2: to use against her.
Speaker 4: Here's what Karen Reid may regret having done in the
Speaker 4: past few months. Karen Reid did not testify at her
Speaker 4: first trial, nor did she have to. She has every
Speaker 4: right not to take the stand, and she didn't. In
Speaker 4: the meantime, little did we know, she was assisting in
Speaker 4: the filming of a documentary that's now been out on
Speaker 4: Max called A Body in the Snow, where she gave
Speaker 4: extensive interviews about what happened that night, at least her
Speaker 4: version of what happened, and all sorts of things. And
Speaker 4: since this trial, and she's given a lot of other
Speaker 4: interviews to a lot of media outlets. So in this
Speaker 4: second trial, the prosecution has ceased upon some of those
Speaker 4: interviews and some of the statements she made in those
Speaker 4: interviews that don't necessarily help her, and they've been able
Speaker 4: to play those snippets to this jury. And so I
Speaker 4: think so far that's actually hurt Karen Reid, the fact
Speaker 4: that she decided to talk to the media and some
Speaker 4: of the things she said don't help her cause. And
Speaker 4: I think that may come back to haunt her in
Speaker 4: this second trial.
Speaker 2: And just tell us about some of the things that
Speaker 2: give you pause and might give a juror pause about
Speaker 2: her guilt.
Speaker 4: There's things that just don't add up, Like he's got
Speaker 4: all these scratches on his arm, and the defenses that's
Speaker 4: from the dog bite the dog in the house, bid him.
Speaker 4: Then mysteriously the owners of the dog in the house
Speaker 4: they get rid of the dog. And these phone calls
Speaker 4: between the people that were in the house that night,
Speaker 4: like four in the morning, and this and that, and
Speaker 4: you know, some of them have gone to their own houses.
Speaker 4: So there's these phone calls back and forth, and Alan
Speaker 4: Jackson was you know, got all these cell phone regor
Speaker 4: Why why'd you call him at four in the morning, Oh,
Speaker 4: that was a butt dial. Why did you call him
Speaker 4: back at four oh one in the morning, Well that
Speaker 4: was a butt dial too, And so there's all these
Speaker 4: little things like that that add up that had this
Speaker 4: jury saying, you know, we're not quite sure what happened,
Speaker 4: so we're not going to convict her.
Speaker 2: You can never tell what will be important to a jury.
Speaker 1: Thanks so much, Dave.
Speaker 2: That's trial attorney David Ring of Taylor and Ring. And
Speaker 2: that's it for this edition of the Bloomberg Law Show.
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Speaker 1: Wall Street Time.
Speaker 2: I'm June Grosso and you're listening to Bloomberg