WEBVTT - The Next Battle Over Abortion 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grosseol from Bloomberg Radio. 0:00:08.640 --> 0:00:12.480 It's been almost three years since the Supreme Court overturned 0:00:12.640 --> 0:00:16.680 Roe v. Wade and eliminated the constitutional right to abortion. 0:00:17.239 --> 0:00:20.799 But that wasn't the endpoint for the anti abortion movement. 0:00:21.480 --> 0:00:25.960 The next frontier is the battleover fetal personhood. That's according 0:00:26.000 --> 0:00:29.440 to an expert on the law of reproduction, Mary Ziegler, 0:00:29.520 --> 0:00:33.200 a professor at UC Davis Law School. Her latest book 0:00:33.240 --> 0:00:38.360 is entitled Personhood, the New Civil War over Reproduction. So, Mary, 0:00:38.400 --> 0:00:41.400 the idea of fetal personhood, I'm not sure I heard 0:00:41.400 --> 0:00:44.519 about it so much until the last few years, but 0:00:44.600 --> 0:00:46.680 you write that it's been the goal of the anti 0:00:46.760 --> 0:00:49.440 abortion movement since the nineteen sixties. 0:00:49.880 --> 0:00:52.160 Yeah, that's right, And I think in part you didn't 0:00:52.159 --> 0:00:55.360 stir about it because the anti abortion movement was fixated 0:00:55.440 --> 0:00:58.400 on a shorter term, kind of more realistical, which was 0:00:58.440 --> 0:01:02.600 the reversal of Weighe. So people who saw Row as 0:01:02.680 --> 0:01:05.200 kind of being the bulls eye weren't wrong. But I 0:01:05.200 --> 0:01:07.760 think what's become clear in the past few years was 0:01:08.200 --> 0:01:11.279 that that was never the endgame for the anti worship movement. 0:01:11.800 --> 0:01:14.400 They were not going to be content with letting each 0:01:14.480 --> 0:01:18.080 state set its own policy, and that really is clear 0:01:18.120 --> 0:01:20.120 when you dig into the history of where the movement 0:01:20.200 --> 0:01:22.480 came from and what it's been pursuing from the beginning. 0:01:22.720 --> 0:01:24.319 Tell us a little bit about that history. 0:01:24.760 --> 0:01:26.840 Yeah, so, just to start out with the levels that 0:01:26.959 --> 0:01:29.399 what fetal person put is is the claim not that 0:01:29.880 --> 0:01:32.839 just that human life begins when an egg is fertilized, 0:01:32.959 --> 0:01:35.520 or that when an egg is fertilized you have a separate, 0:01:35.600 --> 0:01:39.440 unique human being, it's also the claim that when that happens, 0:01:39.480 --> 0:01:44.840 constitutional rights begin. So initially that argument was kind of 0:01:44.880 --> 0:01:48.720 a strategy. So the anti worship movement in the sixties 0:01:48.800 --> 0:01:52.200 was starting to see states reform their criminal bands, which 0:01:52.200 --> 0:01:55.360 all dated from the nineteenth century, and arguments that had 0:01:55.360 --> 0:01:58.000 worked for decades to back up those bands were starting 0:01:58.000 --> 0:02:01.640 to fail. Arguments like well, if wegalize abortion, people will 0:02:01.640 --> 0:02:04.600 have sex outside of marriage, or we don't really need 0:02:04.600 --> 0:02:08.639 to legalize abortion because pregnancy isn't that unsafe anymore. Those 0:02:08.760 --> 0:02:12.720 arguments were falling flat. So some anti abortion activists, most 0:02:12.720 --> 0:02:15.079 of whom were Catholic at the time, began arguing that 0:02:15.120 --> 0:02:18.640 you just couldn't liberalize abortion laws because it was unconstitutional. 0:02:19.280 --> 0:02:21.960 But then these arguments kind of took on a life 0:02:21.960 --> 0:02:27.320 of their own. They became compelling to a range of conservatives, 0:02:27.360 --> 0:02:30.920 not just conservative Catholics. They really kind of lasted in 0:02:30.919 --> 0:02:34.200 the anti abortion movement for more than half a century 0:02:34.200 --> 0:02:37.320 as a rallying cry, even as I think it's pretty 0:02:37.320 --> 0:02:40.000 clear today and it was clear in the past, that 0:02:40.080 --> 0:02:43.320 people in the movement and outside the movement disagree on 0:02:43.760 --> 0:02:45.799 what it means to value feel life and what you'd 0:02:45.800 --> 0:02:47.640 have to do to enforce that, like what it would 0:02:47.639 --> 0:02:50.560 mean on the ground for ivs, for contraception, for abortion, 0:02:50.840 --> 0:02:52.639 even for pregnancy. 0:02:52.720 --> 0:02:56.280 So how do they move together if they don't have 0:02:56.400 --> 0:02:59.880 a clear definition of what fetal personhood means. 0:03:00.560 --> 0:03:03.360 Well, So for a long time, having a clear definition 0:03:03.520 --> 0:03:07.119 was an advantage, right, because female personhood for a long 0:03:07.120 --> 0:03:10.120 time was sort of like the moonshot, right, like the 0:03:10.200 --> 0:03:13.760 sort of dream that united everybody in the movement, and 0:03:13.840 --> 0:03:16.080 so no one really had to figure out the nitty 0:03:16.120 --> 0:03:18.560 gritty about what it would mean first a IBF for 0:03:19.040 --> 0:03:22.120 punishing women for abortion, because no one was going to 0:03:22.160 --> 0:03:24.120 be able to do any of those things because of 0:03:24.240 --> 0:03:27.399 ro What we've seen in a way now is that 0:03:27.760 --> 0:03:30.680 it's possible that the US Supreme Court could recognize feal 0:03:30.760 --> 0:03:35.280 person It's possible that state supreme courts could accord fetus's 0:03:35.400 --> 0:03:40.040 constitutional rights. It's possible that states could fill any clearly 0:03:40.120 --> 0:03:42.800 enforceable fetal rights. So now all these questions that were 0:03:42.880 --> 0:03:45.600 wants to sort of like an abstraction for people in 0:03:45.600 --> 0:03:49.240 the anti abortion movement are now a kind of pressing priority. 0:03:49.720 --> 0:03:52.040 And that's why we're starting to see more conflict about it. 0:03:52.120 --> 0:03:55.040 Right before everybody could kind of table those disagreements and 0:03:56.000 --> 0:03:59.640 get together and mobilize around the big picture. And that's 0:03:59.720 --> 0:04:01.760 no underly ef feasible alternative. 0:04:02.440 --> 0:04:04.040 More than and I didn't realize this either. 0:04:04.320 --> 0:04:07.800 More than a third of the states have fetal personhood 0:04:08.360 --> 0:04:10.360 laws on the books, and some have been on the 0:04:10.400 --> 0:04:11.520 books for decades. 0:04:12.240 --> 0:04:13.680 Where does that fit in. 0:04:14.400 --> 0:04:16.919 It's really unclear what's going to happen with those laws. 0:04:16.960 --> 0:04:20.039 So how those laws got going for a time was 0:04:20.080 --> 0:04:24.400 that anti abortion groups thought that they needed to kind 0:04:24.400 --> 0:04:27.560 of plant the seeds for constitutional fetal rights in areas 0:04:27.560 --> 0:04:30.119 that didn't have anything to do about abortion, because roe 0:04:30.160 --> 0:04:34.719 was this stumbling lack. So they began to, for example, 0:04:34.760 --> 0:04:39.000 focus on fetal homicide laws or laws that allowed wrongful 0:04:39.040 --> 0:04:42.440 death suits in the case of someone who died in utero. 0:04:42.600 --> 0:04:42.760 Right. 0:04:42.839 --> 0:04:46.360 So they're all of these strategies that feeded these laws 0:04:46.360 --> 0:04:49.920 in places that have protections in some instances for legal 0:04:49.960 --> 0:04:53.159 abortion or IBF were both, but a lot of the 0:04:53.240 --> 0:04:56.360 time it's sort of unclear how enforceable some of these 0:04:56.440 --> 0:04:58.680 laws are. Some of them just sound like throat clearing 0:04:58.720 --> 0:05:01.160 about the value of unborn la some of them are 0:05:01.200 --> 0:05:04.000 just narrow They apply in a specific legal context but 0:05:04.080 --> 0:05:07.560 not outside of it. So one of the really unpredictable 0:05:07.600 --> 0:05:10.920 things is which of these laws are state courts going 0:05:10.960 --> 0:05:15.760 to turn into meaningful limits and which are going to 0:05:15.800 --> 0:05:19.080 just remain kind of symbolic. So last year, when the 0:05:19.080 --> 0:05:22.760 Alabama Supreme Court issued a ruling that essentially halted IVF 0:05:22.839 --> 0:05:25.320 in that state, the state law had been on the 0:05:25.320 --> 0:05:27.840 books for a while, right, but no one had really 0:05:27.920 --> 0:05:30.839 known that the state supreme Court would or could turn 0:05:30.880 --> 0:05:33.720 it into something that essentially ended yes in the state 0:05:33.800 --> 0:05:36.120 for a time. So we're living in a reality now 0:05:36.160 --> 0:05:38.640 where anti abortion groups are trying to get more of 0:05:38.680 --> 0:05:41.400 these personhood laws on the books when we already have 0:05:41.520 --> 0:05:43.599 a lot of personhood laws on the books, and we 0:05:43.680 --> 0:05:46.880 just don't know how state courts and ultimately federal courts 0:05:46.880 --> 0:05:49.320 are going to look at them. The endgame there, of course, 0:05:49.440 --> 0:05:52.720 is not just a state by state approach either. It's 0:05:52.800 --> 0:05:56.039 to create a kind of conservative chorus of demands for 0:05:56.120 --> 0:06:00.159 fetal personhood that anti abortion lawyers can point to in 0:06:00.200 --> 0:06:03.280 the US Supreme Court, just as they pointed to red 0:06:03.279 --> 0:06:06.640 state demands to overall row right. So the goal eventually 0:06:06.720 --> 0:06:09.200 is a federal judicial decision, not a state outcome. But 0:06:09.279 --> 0:06:11.280 the state outcomes are part of that bigger picture. 0:06:12.120 --> 0:06:16.760 Is there disagreement about the legal path to secure fetal 0:06:16.800 --> 0:06:19.200 personhood or has there been disagreement? 0:06:20.080 --> 0:06:20.240 Yeah? 0:06:20.320 --> 0:06:22.320 There has I mean I think at the moment there's 0:06:22.360 --> 0:06:26.640 definitely a focus on the federal judiciary for the unsurprising 0:06:26.720 --> 0:06:30.400 reason that anti abortion groups have been taking some losses 0:06:30.800 --> 0:06:34.520 when it comes to voters. Right, voters have been reluctant 0:06:34.560 --> 0:06:37.919 to even embrace the bands that are already on the books, 0:06:38.000 --> 0:06:41.919 much less fetal personhood, which, if you understand it the 0:06:41.960 --> 0:06:47.760 way abortion opponents have, it could essentially make it unconstitutional 0:06:48.560 --> 0:06:51.159 for a blue state or swing state or a red 0:06:51.200 --> 0:06:55.120 state to pass about initiative unreproductive rights or a law 0:06:55.160 --> 0:06:58.480 protecting ibs. So abortion opponents, I think are aware that 0:06:58.480 --> 0:07:00.800 that would not be an easy agenda to sell the 0:07:00.880 --> 0:07:04.680 voters right now, So there's broad consensus that the only 0:07:04.760 --> 0:07:07.680 way forward is to rely on the US Supreme Court. 0:07:07.760 --> 0:07:11.000 There's only five conservative justices you need to persuade to 0:07:11.040 --> 0:07:14.440 get that outcome versus you know, a majority of American 0:07:14.520 --> 0:07:19.440 voters in any state, much less nationwide. So there's consensus there, 0:07:19.480 --> 0:07:23.080 But once you get beyond that big picture, there's a 0:07:23.120 --> 0:07:26.040 lot of infighting, and I think we started to see 0:07:26.040 --> 0:07:28.280 that more and more with each legislative session. 0:07:28.920 --> 0:07:32.480 So let's discuss the Dobbs decision, which, for the first 0:07:32.560 --> 0:07:36.320 time the Court took away a constitutional right and what 0:07:36.480 --> 0:07:40.440 many see as a flawed opinion by Justice Samuel Alito, 0:07:41.080 --> 0:07:44.800 particularly with his interpretation of history. Yeah. 0:07:44.880 --> 0:07:47.760 Well, one of the really interesting features of Dobbs is, 0:07:48.160 --> 0:07:53.000 on the one hand, Dobbs doesn't say anything about fetal rights, 0:07:53.240 --> 0:07:55.600 and that was surprising, right. I think most people were 0:07:55.640 --> 0:07:59.600 expecting at least one of the justices to reference these 0:07:59.640 --> 0:08:02.480 theories about fetal rights that abortion opponents had developed and 0:08:02.520 --> 0:08:04.520 that we're in the Amikus briefs or friend of Court 0:08:04.560 --> 0:08:07.360 priests and dogs. On the other hand, the account of 0:08:07.440 --> 0:08:11.800 history that Justice Alito gives in Dobbs, which is essentially 0:08:12.120 --> 0:08:16.240 in Justice Alito's version of things, abortion was always criminalized, 0:08:16.320 --> 0:08:19.640 or at least viewed with disfavor, and that both establishes 0:08:19.680 --> 0:08:21.960 that there couldn't be a right to abortion in the 0:08:21.960 --> 0:08:26.600 eyes of personhood proponents. It also suggests that the framers 0:08:26.640 --> 0:08:31.360 of the Constitution viewed thetuses as people with constitutional rights. Now, 0:08:31.960 --> 0:08:34.520 you know, the Court doesn't formally embrace that, but it's 0:08:34.559 --> 0:08:37.640 easy to see a parallel between the way people who 0:08:37.760 --> 0:08:40.560 embrace fetal personhood see our past and the way Dobbs 0:08:40.600 --> 0:08:43.520 portrays our past, which is one of the reasons we've 0:08:43.559 --> 0:08:46.800 seen I think people get energized about the idea that 0:08:47.240 --> 0:08:49.840 the Supreme Court may embrace this idea of fetal person 0:08:49.880 --> 0:08:52.240 had later, even if it's not likely to do so today. 0:08:53.240 --> 0:08:55.760 You know, I would say that that's like a far 0:08:55.840 --> 0:08:59.520 flung theory and the Court won't embrace it. But then 0:08:59.559 --> 0:09:02.280 I thought that the Court would not get rid of 0:09:02.320 --> 0:09:05.880 the constitutional right to abortion. I mean, have you seen 0:09:06.160 --> 0:09:09.920 in the concurrences or the sense of any of the 0:09:10.120 --> 0:09:12.960 justices this embrace of fetal personhood. 0:09:13.200 --> 0:09:15.120 I think Alito did say, correct me. 0:09:15.120 --> 0:09:18.760 If I'm wrong in Dabbs something like life begins at conception. 0:09:19.600 --> 0:09:21.440 Yeah, I mean it's hard to say. I think you're 0:09:21.480 --> 0:09:24.319 really tewa freading if you're trying to get a definitive account. 0:09:24.360 --> 0:09:26.600 I think the problem for the fetal person to movement 0:09:26.600 --> 0:09:29.600 at the moment in some ways is justice spread Kavanaugh, 0:09:29.640 --> 0:09:31.920 who wrote a concurrence in Dobbs, more or less committing 0:09:32.000 --> 0:09:34.920 himself to the position that the Constitution doesn't protect any 0:09:35.000 --> 0:09:37.720 right having to do with abortion, whether a fetal right 0:09:37.840 --> 0:09:40.800 or right for women or anything. Really, and so that 0:09:40.840 --> 0:09:44.120 doesn't mean Kavanaugh can't change his mind or backpedal, but 0:09:44.280 --> 0:09:46.760 it's going to take I think time and lots of 0:09:46.800 --> 0:09:50.240 this sort of state by state work to convince him 0:09:50.240 --> 0:09:53.319 to change his mind. Having said that, the majority in Dogs, 0:09:53.360 --> 0:09:57.120 as you point out, relies a lot on the importance 0:09:57.160 --> 0:09:59.559 of unborn life. And how that shows up in particular 0:09:59.640 --> 0:10:02.520 is the court work is accused by the descending justices 0:10:02.600 --> 0:10:05.760 and some of the parties of threatening other rights like 0:10:05.800 --> 0:10:08.560 the right to contraception, the right for same sex marriage, 0:10:08.760 --> 0:10:12.040 rights inter racial marriage, and justice. Alito's response to all 0:10:12.080 --> 0:10:14.960 of that is abortion is different because it takes potential 0:10:15.000 --> 0:10:18.000 life or unborn life, which is certainly not a full 0:10:18.000 --> 0:10:21.960 blown embrace of fetal personhood, but it's also certainly consistent 0:10:22.000 --> 0:10:24.920 with the idea of fetal personhood. So again, do I 0:10:24.920 --> 0:10:29.439 think the Supreme Court's going to embrace fetal personhood tomorrow? No, 0:10:29.640 --> 0:10:32.559 and neither does anybody in the anti abortion movement. That's 0:10:32.600 --> 0:10:34.560 not true. There are definitely people who are pretty in 0:10:34.600 --> 0:10:37.160 federal court litigating about it, but a lot of them 0:10:37.160 --> 0:10:40.679 are thinking this is sort of the next great White whale, right, 0:10:40.720 --> 0:10:43.600 this is the next getting rid of Roby Wade, and 0:10:43.640 --> 0:10:47.080 it's it's a project that could take a decade or 0:10:47.120 --> 0:10:52.319 more and obviously might take further transformation of the Supreme Court. 0:10:52.400 --> 0:10:55.120 We know Donald Trump will have an opportunity potentially to 0:10:55.160 --> 0:10:58.280 nominate some justices, but the question will be whether he 0:10:58.320 --> 0:11:02.240 can actually move the court considerably to the right, or 0:11:02.280 --> 0:11:05.520 whether instead he'll be replacing some of the most conservative 0:11:05.600 --> 0:11:07.640 members of the court and kind of firming up the 0:11:07.640 --> 0:11:08.320 status quo. 0:11:08.840 --> 0:11:15.360 Does fetal personhood go hand in hand with criminalization of 0:11:15.400 --> 0:11:17.000 abortion well in. 0:11:16.920 --> 0:11:20.560 The United States today. Yes. One of the interesting questions 0:11:20.679 --> 0:11:24.160 that sort of drove this fight about personhood was does 0:11:24.440 --> 0:11:29.319 valuing fetal life or recognizing fetal rights require you to criminalize, 0:11:29.440 --> 0:11:32.920 you know, abortion, helping people get abortions, IDs, helping people 0:11:32.920 --> 0:11:36.040 get ivs, Like, what does that look like? And at 0:11:36.120 --> 0:11:39.800 various points you would have abortion opponents give the answer 0:11:39.840 --> 0:11:42.640 that some other countries have given, which is that if 0:11:42.640 --> 0:11:45.960 you recognize fetal rights, the best way to do that 0:11:46.120 --> 0:11:49.080 is to give more rights to the person carrying that life, 0:11:49.640 --> 0:11:52.080 the pregnant woman, right. And the way you would do 0:11:52.120 --> 0:11:55.240 that would be, for example, to give that person more 0:11:55.280 --> 0:11:59.920 financial support, access to prenatal care. It's not inevitable to 0:12:00.040 --> 0:12:03.240 assume that the way you protect life in the womb 0:12:04.120 --> 0:12:08.720 is by criminalizing anything. Right. But I think over time, 0:12:09.080 --> 0:12:12.240 for a whole bunch of reasons, having everything to do 0:12:12.360 --> 0:12:15.880 with the increase in rates and of incarceration in the US, 0:12:16.080 --> 0:12:18.520 did the partnership the anti abortion movement formed with the 0:12:18.559 --> 0:12:23.160 Republican Party. The US anti abortion movement has increasingly equated 0:12:23.280 --> 0:12:27.840 rights for an unborn child or embryo or fetus with criminalization. 0:12:28.400 --> 0:12:30.319 So I think one of the things you learned from 0:12:30.320 --> 0:12:32.720 the history is one this is a sort of bizarre 0:12:32.720 --> 0:12:36.120 and uniquely American answer to this question, but also too 0:12:36.160 --> 0:12:38.880 that there may be other answers to the question. And 0:12:38.920 --> 0:12:41.880 you see this sometimes even in polling QW in May 0:12:41.960 --> 0:12:45.880 twenty twenty two, not long before Dobbs, found that a 0:12:45.920 --> 0:12:49.600 full third of people responding to the poll said they 0:12:49.600 --> 0:12:52.720 thought life began at conception and fetus, this had rights, 0:12:52.760 --> 0:12:56.120 and that abortion shouldn't be criminalized. So even now in 0:12:56.120 --> 0:12:59.240 the United States, as polarized as we are, there's some 0:12:59.360 --> 0:13:03.160 Americans who think along those lines, right. So one interesting 0:13:03.240 --> 0:13:05.800 question is would it be possible to have that kind 0:13:05.840 --> 0:13:10.120 of dialogue again or are we so kind of mired 0:13:10.200 --> 0:13:12.600 in this fight about criminalization that there's no way to 0:13:12.640 --> 0:13:14.360 think or talk like that at the present. 0:13:14.600 --> 0:13:16.920 Coming up next on the Bloomberg Law Show, I'll continue 0:13:16.920 --> 0:13:20.920 this conversation with You See Davis Law professor Mary Ziegler. 0:13:21.160 --> 0:13:24.199 We'll talk about the next battleground in the war over abortion. 0:13:24.720 --> 0:13:29.160 I'm June Grosso and you're listening to Bloomberg. I've been 0:13:29.200 --> 0:13:32.120 talking to Professor Mary Ziegler of You See Davis Law 0:13:32.160 --> 0:13:37.000 School about her new book entitled Personhood The New Civil. 0:13:36.720 --> 0:13:38.120 War over Reproduction. 0:13:38.440 --> 0:13:42.280 So let's discuss the Dobbs decision, which for the first time, 0:13:42.320 --> 0:13:46.240 the court took away a constitutional right and what many 0:13:46.240 --> 0:13:51.160 see as a flawed opinion by Justice Samuel Leto, particularly 0:13:51.160 --> 0:13:54.320 with his interpretation of history. Yeah. 0:13:54.360 --> 0:13:57.839 Well, one of the interesting features of Dobbs is, on 0:13:57.880 --> 0:14:02.280 the one hand, Dobbs doesn't say anything about fetal rights, 0:14:02.720 --> 0:14:05.120 and that was surprising, right. I think most people were 0:14:05.120 --> 0:14:09.120 expecting at least one of the justices to reference these 0:14:09.160 --> 0:14:12.000 theories about fetal rights that abortion opponents had developed, and 0:14:12.000 --> 0:14:14.040 that we're in the Amikus briss Or Friend of Court 0:14:14.040 --> 0:14:16.880 Priests and Dobs. On the other hand, the account of 0:14:16.960 --> 0:14:21.320 history that Justice Alito gives in Dobbs, which is essentially 0:14:21.640 --> 0:14:25.760 in Justice Alito's version of things, abortion was always criminalized 0:14:25.840 --> 0:14:29.119 or at least viewed with disfavor, and that both establishes 0:14:29.200 --> 0:14:31.440 that there couldn't be a right to abortion in the 0:14:31.480 --> 0:14:36.120 eyes of personhood proponents. It also suggests that the framers 0:14:36.120 --> 0:14:40.840 of the Constitution viewed thetuses as people with constitutional rights. Now, 0:14:41.480 --> 0:14:44.040 you know, the Court doesn't formally embrace that, but it's 0:14:44.080 --> 0:14:47.120 easy to see a parallel between the way people who 0:14:47.280 --> 0:14:50.080 embrace fetal personhold see our past and the way Dobbs 0:14:50.120 --> 0:14:53.280 portrays our past, which is one of the reasons we've seen. 0:14:53.360 --> 0:14:56.840 I think people get energized about the idea that the 0:14:56.880 --> 0:14:59.840 Supreme Court may embrace this idea of fetal person had later, 0:15:00.000 --> 0:15:01.720 even if it's not likely to do so today. 0:15:02.720 --> 0:15:05.240 You know, I would say that that's like a far 0:15:05.360 --> 0:15:09.040 flung theory and the Court won't embrace it. But then 0:15:09.080 --> 0:15:11.800 I thought that the Court would not get rid of 0:15:11.840 --> 0:15:15.400 the constitutional right to abortion. I mean, have you seen 0:15:15.640 --> 0:15:19.400 in the concurrences or the sense of any of the 0:15:19.640 --> 0:15:22.480 justices this embrace of fetal personhood. 0:15:22.480 --> 0:15:24.280 I think Alito did say. 0:15:24.280 --> 0:15:26.960 Correct me if I'm wrong in Dabs something like life 0:15:27.000 --> 0:15:28.280 begins at conception. 0:15:29.080 --> 0:15:30.960 Yeah, I mean it's hard to say. I think you're 0:15:31.000 --> 0:15:33.800 really tewy freading if you're trying to get a definitive account. 0:15:33.840 --> 0:15:36.120 I think the problem for the fetal Persons of movement 0:15:36.120 --> 0:15:39.160 at the moment, in some ways is justice spread Kavanaugh, 0:15:39.160 --> 0:15:41.400 who wrote a concurrence in Dobbs more or less committing 0:15:41.480 --> 0:15:44.440 himself to the position that the Constitution doesn't protect any 0:15:44.520 --> 0:15:47.200 right having to do with abortion, whether a fetal right 0:15:47.320 --> 0:15:50.320 or right for women or anything. Really, And so that 0:15:50.360 --> 0:15:53.640 doesn't mean Kavanaugh can't change his mind or backpedal, but 0:15:53.800 --> 0:15:56.280 it's going to take I think time and lots of 0:15:56.320 --> 0:15:59.680 this sort of state by state work to convince him 0:15:59.720 --> 0:16:02.960 to change. Having said that, the majority in Dogs, as 0:16:03.000 --> 0:16:06.720 you point out, relies a lot on the importance of 0:16:06.800 --> 0:16:09.240 unborn life. And how that shows up in particular, is 0:16:09.280 --> 0:16:12.720 the Court is accused by the descending justices and some 0:16:12.840 --> 0:16:15.600 of the parties of threatening other rights like the right 0:16:15.640 --> 0:16:19.480 to contraception, the right for same sex marriage, rights, interracial marriage, 0:16:19.520 --> 0:16:22.360 and justice. Alito's response to all of that is abortion 0:16:22.480 --> 0:16:25.560 is different because it takes potential life or unborn life, 0:16:25.560 --> 0:16:29.520 which is certainly not a full blown embrace of fetal personhood, 0:16:29.560 --> 0:16:32.920 but it's also certainly consistent with the idea of fetal personhood. 0:16:33.000 --> 0:16:35.560 So again, do I think the Supreme Court's going to 0:16:35.600 --> 0:16:40.400 embrace fetal personhood tomorrow? No, And neither does anybody in 0:16:40.440 --> 0:16:42.640 the anti abortion movement. Oh that's not true. There are 0:16:42.640 --> 0:16:45.680 definitely people who are party in Federal Court litigating about it, 0:16:45.720 --> 0:16:48.200 but a lot of them are thinking this is sort 0:16:48.240 --> 0:16:50.640 of the next great white whale, right, this is the 0:16:50.720 --> 0:16:53.640 next getting rid of Roby Wade, And it's it's a 0:16:53.680 --> 0:16:56.840 project that could take, you know, a decade or more, 0:16:56.880 --> 0:17:01.840 and obviously might take further transformation of the Supreme Court. 0:17:01.920 --> 0:17:04.639 We know Donald Trump will have an opportunity potentially to 0:17:04.680 --> 0:17:07.800 nominate some justices, but the question will be whether he 0:17:07.800 --> 0:17:11.760 can actually move the court considerably to the right or 0:17:11.800 --> 0:17:15.080 whether instead he'll be replacing some of the most conservative 0:17:15.080 --> 0:17:17.119 members of the court and kind of firming up the 0:17:17.160 --> 0:17:17.800 status quo. 0:17:18.359 --> 0:17:25.360 Does fetal personhood go hand in hand with criminalization of abortion? 0:17:25.920 --> 0:17:27.760 Well in the United States today. 0:17:28.040 --> 0:17:28.240 Yes. 0:17:28.520 --> 0:17:31.199 One of the interesting questions that sort of drove this 0:17:31.280 --> 0:17:36.040 fight about personhood was does valuing fetal life or recognizing 0:17:36.040 --> 0:17:40.200 fetal rights require you to criminalize you know, abortion, helping 0:17:40.200 --> 0:17:43.359 people get abortions, IDs, helping people get ivs? Like, what 0:17:43.400 --> 0:17:46.640 does that look like? And at various points you would 0:17:46.680 --> 0:17:50.600 have abortion opponents give the answer that some other countries 0:17:50.600 --> 0:17:53.639 have given, which is that if you recognize fetal rights, 0:17:54.320 --> 0:17:56.280 the best way to do that is to give more 0:17:56.359 --> 0:18:00.440 rights to the person carrying that life, the pregnant woman, right. 0:18:00.600 --> 0:18:03.160 And the way you would do that would be, for example, 0:18:03.280 --> 0:18:07.640 to give that person more financial support, access to prenatal care. 0:18:08.240 --> 0:18:11.520 It's not inevitable to assume that the way you protect 0:18:11.840 --> 0:18:17.080 life in the womb is by criminalizing anything, right, But 0:18:17.240 --> 0:18:20.480 I think over time, for a whole bunch of reasons, 0:18:20.680 --> 0:18:24.000 having everything to do with the increase in rates of 0:18:24.040 --> 0:18:27.159 incarceration in the US. Did the partnership the anti abortion 0:18:27.240 --> 0:18:30.960 movement formed with the Republican Party. The US anti abortion 0:18:31.040 --> 0:18:34.840 movement has increasingly equated rights for an unborn child or 0:18:34.880 --> 0:18:38.840 embryo or fetus with criminalization. So I think one of 0:18:38.920 --> 0:18:41.280 the things you learned from the history is one this 0:18:41.320 --> 0:18:44.000 is a sort of bizarre and uniquely American answer to 0:18:44.040 --> 0:18:47.160 this question, but also too that there may be other 0:18:47.240 --> 0:18:49.640 answers to the question. And you see this sometimes even 0:18:49.680 --> 0:18:53.520 in polling QW in May twenty twenty two, not long 0:18:53.560 --> 0:18:57.560 before Dobbs found that a full third of people responding 0:18:57.600 --> 0:18:59.879 to the poll said they thought life began a ca 0:19:00.040 --> 0:19:04.200 inception and fetus's head rights and that abortion shouldn't be criminalized. 0:19:04.520 --> 0:19:07.560 So even now in the United States, as polarized as 0:19:07.600 --> 0:19:11.280 we are, there's some Americans who think along those lines, right. 0:19:11.400 --> 0:19:14.679 So one interesting question is would it be possible to 0:19:14.720 --> 0:19:17.879 have that kind of dialogue again or are we so 0:19:18.520 --> 0:19:21.600 kind of mired in this fight about criminalization that there's 0:19:21.600 --> 0:19:23.800 no way to think or talk like that at the present. 0:19:24.480 --> 0:19:28.080 You mentioned the case in Alabama where people suddenly woke 0:19:28.160 --> 0:19:32.560 up to the fact that in vitro fertilization was in jeopardy. 0:19:33.160 --> 0:19:38.360 How does fetal personhood affect in vitro fertilization and contraception. 0:19:39.000 --> 0:19:42.399 Yeah, with respect to in vitro fertilization, obviously, the anti 0:19:42.400 --> 0:19:45.840 abortion movement has become much more outspoken about in vitro 0:19:45.880 --> 0:19:49.719 fertilization as it's become more outspoken about personhood. Right if 0:19:49.760 --> 0:19:52.400 you're in the archives of these groups, they've been involved 0:19:52.400 --> 0:19:55.360 with both a long time that now those I think 0:19:55.440 --> 0:19:58.879 demands have become more open and more pressing. There's different 0:19:59.000 --> 0:20:03.280 positions in the been about whether recognizing personhood would require 0:20:03.520 --> 0:20:07.560 that IBS be more or less shut down. The majority 0:20:07.600 --> 0:20:10.800 position is that IVF would have to be radically changed, 0:20:11.359 --> 0:20:14.240 essentially in a way that would require that only one 0:20:14.280 --> 0:20:18.240 embryo could be created and implanted at a time, because 0:20:18.280 --> 0:20:22.320 personhood is inconsistent with either the destruction of embryos or 0:20:22.680 --> 0:20:26.640 the indefinite preservation of embryos. So that of course would 0:20:26.680 --> 0:20:30.440 have pretty major impacts on families using IVS. It would 0:20:30.440 --> 0:20:33.600 increase its cost, it would decrease its efficacy. It maybe 0:20:33.720 --> 0:20:36.880 sort of drive IVF under simply by making it so 0:20:36.920 --> 0:20:39.920 ineffective that it wouldn't have much appeal to families struggling 0:20:39.920 --> 0:20:43.840 with infertility. The effects on contraception are a little bit 0:20:43.840 --> 0:20:47.320 different because a lot of groups that believe in personhood 0:20:47.880 --> 0:20:51.360 have deep disagreements about how common contraceptives work. They reject 0:20:51.680 --> 0:20:56.080 the conclusions drawn by groups like ACOG about what defines 0:20:56.119 --> 0:21:01.240 the pregnancy and about how, for example, emergency contraceptive IDs 0:21:01.359 --> 0:21:04.399 or even the birth control pill work. So they argue 0:21:04.440 --> 0:21:08.960 that all of those common contraceptives in fact operate as abortizations, 0:21:09.359 --> 0:21:13.960 and therefore, to the extent personhood requires us and worship, 0:21:14.040 --> 0:21:17.680 it also requires us to end access to those common contraceptives. 0:21:18.040 --> 0:21:21.439 To me, the numbers were stunning that in twenty twenty 0:21:21.480 --> 0:21:25.040 three and twenty twenty four there are more than a 0:21:25.119 --> 0:21:27.240 million abortions in the US, and that's some of the 0:21:27.320 --> 0:21:29.280 highest numbers in a decade. 0:21:29.760 --> 0:21:31.160 So how does that equate with. 0:21:31.280 --> 0:21:34.560 The end of the constitutional right to abortion? 0:21:35.080 --> 0:21:39.440 I think history teaches us that absent really extraordinary circumstances, 0:21:39.480 --> 0:21:42.639 what tends to drive the abortion beat is not just 0:21:42.720 --> 0:21:48.000 supply meaning how accessible is abortion, but also demand right. 0:21:48.080 --> 0:21:51.639 So what is happening in people's lives that they're considering 0:21:52.440 --> 0:21:55.800 terminating a pregnancy, and that can have any things to 0:21:55.840 --> 0:22:00.960 do with access to contraception, the health of the economy, inflation, 0:22:02.119 --> 0:22:07.720 even at an individual level, people's health outcomes, exposure to racism. Right, 0:22:07.760 --> 0:22:10.720 people are making these decisions about whether they themselves skill 0:22:10.800 --> 0:22:14.720 they can have a child or another child given their 0:22:14.760 --> 0:22:20.359 present reality. So it's unsurprising that states are unable to 0:22:20.480 --> 0:22:23.760 eliminate demand. They're not necessarily even trying very hard to 0:22:23.800 --> 0:22:27.160 eliminate demand. There's not been a lot of state provided 0:22:27.680 --> 0:22:31.480