00:00:09.860And whether we like it or not, we're in bed with the right.
00:00:13.800So, Adrian, what do you know about fetal personhood?
00:00:19.000Yeah, I mean, it's one of those things that has been shaping our legal landscape for some
00:00:26.080time now, and I have some sense that that's kind of new.
00:00:28.960I know the 19th century fairly well. I know 20th century intellectual history fairly well. I know that the idea that a fetus is, you know, a tiny person and that it should have rights is a pretty new one, is my impression. And especially as a legal strategy, it was sort of understood as kind of the most radical fringe of the anti-abortion movement. That hasn't stopped it from being probably one of the most ascendant aspects of that movement. Does that seem about right?
00:00:56.900Yeah, I think that's a decent summation. Fetal personhood is an idea, right? And today we're going to be trying to trace the history of that idea, both in culture and in the law. And the short version is that it's the notion that fetuses and also embryos, which is maybe something we should go into, are persons the same way that you and I are persons, right?0.97
00:01:20.480And this has kind of become something that has come to the forefront of the anti-abortion movement and the sort of evolving legal landscape since Dobbs, right?
00:01:33.740So lots of states have laws on the books that either formally or in effect classify fetuses and embryos as persons or as person-like.
00:01:44.720This was a major push of the anti-abortion movement during the Roe era to get these laws passed.
00:01:50.480And now it's a new landscape because with Roe in place, there was an upper limit to the ability of those laws to be enforced, right?
00:01:59.600If you can't ban abortion legally, then it's also very hard to fulsomely treat a pregnancy as if it was a full human being.
00:02:08.240But now that Roe is gone, fetal personhood has, you know, some legal teeth and some far-reaching implications.
00:02:15.540And we're going to take a look at what that means.
00:02:17.440So Mara, with this one, I'm guessing we should probably name some of our sources. Who are you relying on in this jaunt through fetal personhood?
00:02:24.780I really draw heavily and rely very heavily on Mary Zegler's new book, Fetal Personhood. It's her seventh, I think, book on the history of like abortion and reproductive rights law. And she's just a really rigorous and lucid and smart legal historian who everybody should check out if they're interested in the subject matter.
00:02:43.860I also draw a lot from Jennifer Holland's Tiny You and Leslie Reagan's When Abortion Was a Crime.
00:02:50.580Michelle Goodwin's Policing the Womb is kind of the core, like, biggest book on pregnancy criminalization.
00:03:11.740Am I right to think that this is something that really has become acute only after Dobbs?
00:03:18.380That is to say that it had a long kind of wingnut history and now sort of moved into the mainstream of conservative legal thinking about this?
00:03:25.180Yeah, I'd say, you know, this is a situation in which the anti-abortion movement has become a little bit like the dog that caught the car, right?
00:03:31.360It's something that has gotten some legal effect without the sort of full movement having really anticipated it happening so soon or without like a fulsome appreciation of what that really means.
00:03:46.000Maybe this is a good moment for us to stop before we get too deep into the weeds and just issue a quick content note here, because this is an episode where we are going to be talking a lot about pregnancy loss, both abortions and miscarriages.
00:03:59.320We're also going to be talking about addiction. So I just wanted to give our listeners a heads up. And I think a lot of people sort of had their first exposure to fetal personhood in sort of the American mainstream, you know, people who don't pay attention to abortion policy professionally.
00:04:16.600In February of 2024, when the Alabama Supreme Court briefly banned IVF because that state Supreme Court ruled that life and personhood began at fertilization under state law and that that meant that frozen embryos were persons and that destroying those frozen embryos was a kind of manslaughter or homicide.
00:04:39.880And this basically made many common IVF practices, which do involve the destruction of embryos like pretty regularly, into, you know, legally murder, right?
00:04:51.380So, Adrian, do you remember this case at all?
00:04:52.980I do. I think we've covered it on the pod.
00:04:55.940The setup is darkly funny, even though if you have frozen embryos inside one of these facilities, maybe not that ha-ha funny.
00:05:04.520But, like, a dude just kind of wandered off course in a fertility treatment center and for some reason opens a bunch of drawers and basically thaws a bunch of embryos, which, you know, do not survive that.
00:05:21.180It's not—he doesn't get charged with manslaughter, I think.
00:05:24.680It's about whether or not the clinic is liable and what exactly it's liable for.
00:05:32.640that's invoked in a lawsuit by the people who had created these embryos and had them frozen
00:05:39.160at this facility. I believe it was a hospital that had a fertility clinic in it. And this was
00:05:44.120a patient in a different like non-fertility related part of the hospital, like there for
00:05:50.140a different condition who wandered off and yeah, like created an unintentional bit of chaos. And
00:05:58.000And this was not treated the way we might imagine it to be or the way that it is to me most legible as an injury, which is as like a property destruction issue, right?
00:06:06.940This is not a situation where these individuals or these couples who had these embryos frozen have invested a lot of money and a lot of hope into this like future child.
00:06:18.280This is treated as if these were in fact already children who were murdered by this guy's actions, right?
00:06:23.740And there's a lot of weird language in the ensuing judicial decision out of Alabama that underscored what I see as the like essential creepiness of the fetal personhood worldview, right?
00:06:36.020Like these freezers were referred to as like, quote unquote, cryogenic nurseries.
00:06:42.560The state legislature quickly passed a bill that created a workaround, right? Because there's this big outcry about this among people who have used or hope to one day use IVF. And so the state legislator passed this law declaring that personhood starts at fertilization under state law, but only in the case when that fertilized egg is already inside a uterus, right?
00:07:07.660If it happens in a Petri dish, that's not a person, but it happens in a uterus, that is a person.
00:07:38.180The other interesting thing is that the dude didn't get charged, right?
00:07:40.500Like, it already is sort of like this weird sort of semi-fiction, right?
00:07:44.120Where they're like, well, it's murder in one way, but it's not murder in another way.
00:07:48.000It's like, okay, so like, let's say I was a person, a real person, and I got murdered.
00:07:52.200I'd be kind of miffed if people were like, well, but, you know, it's not quite really murder.
00:07:56.900It's like, well, you're already saying that this is not, that you both committed to this fiction and you're not, right?
00:08:01.400You're interested in it so far as you can wield it as a cudgel, but you're not prepared to actually commit to its logic all the way down.
00:08:09.280Well, I think this sort of catch-22 of fetal personhood for the anti-abortion movement was sort of revealed in, you know, the subsequent bill that was passed by the Alabama state legislature, which created this double standard, right?
00:08:25.640It's only personhood inside a woman's body.
00:08:31.720And that allows fetal personhood to persist in state law as a way to restrict women's freedom, but not as a way to restrict fertility treatments for, you know, wealthy people, right?
00:08:43.320So the national controversy that ensued, this is less than two years after Dobbs, and it pulls this new attention to fetal personhood, which before Dobbs had been this kind of like, as you say, pie in the sky, long-term dream for the anti-choice activists, and after Dobbs becomes something they could conceivably get and enact without actually having considered all the implications and all of the political fallout of such a policy.
00:09:08.780but and this is where i like put on my sort of like well actually hat is that the truth is that
00:09:14.740fetal personhood is sort of everywhere yeah and it's been having big impacts on the way that
00:09:20.400pregnant women can legally act and the way they interact with the law even before jobs it's just
00:09:25.700sort of accelerated in the couple of years since so just this week there was a report put out by
00:09:31.840the non-profit pregnancy justice which i really encourage people to check out if they're interested
00:09:36.360in reproductive rights. Check out Pregnancy Justice. They provide legal representation
00:09:41.080for people who are being criminalized for their pregnancy outcomes. And Pregnancy Justice found
00:09:46.340that there were 412 prosecutions of women stemming from their pregnancy behaviors or pregnancy
00:09:53.700outcomes for things that would not have been criminal had they not been pregnant. And they
00:09:59.000think that this is probably an undercount, right? And that's just from the first two years following
00:10:02.880Dobbs. That's just 2023 and 2024. And most of those involve things like charges of child
00:10:09.860endangerment or child abuse or child neglect or homicide that are leveraged against women who are
00:10:18.080said to have behaved some way while they're pregnant that, you know, was about the treatment
00:10:24.320or the behaviors of their own body, which is said to have violated the rights and prerogatives of
00:10:31.260this other person who occupies their body, right?
00:10:34.060I think it's worth noting also that, like, these are not evenly distributed across the
00:10:38.720United States, and it's often about kind of a moralistic worldview, right?
00:10:44.040Like, you endangered the fetus by doing drugs or drinking alcohol, right?
00:10:47.540But it also often involves, especially in cases of miscarriage, basically these kind
00:10:52.620of folk theories that the anti-choice movement has, where, like, they think, like, well,
00:10:56.060that can't happen, or that's not how you lose a fetus, et cetera, et cetera.
00:10:59.220So it's this thing that's also backed up by this kind of pseudoscience that the anti-choice movement has cooked up over the years, right, that is getting people jailed.
00:11:08.660Yeah, you know, there's sometimes the behavior that people are being criminalized for can't be shown to have actually caused the negative pregnancy outcome.
00:11:18.680Sometimes there's just sort of like suspicion and surveillance for people who haven't done anything that's actionable even under these laws.
00:11:26.240Sometimes it's not even that a specific fetal personhood law is being enforced, but that a law that's on the books for a different purpose or for a different area of the code is being deployed to criminalize pregnancy outcomes.
00:11:41.980This happens a lot with like child abuse cases. Right. There's something called chemical endangerment charge, which gets filed against pregnant women a lot, which was originally put forth in the 90s and aughts in a lot of these local jurisdictions to try and prosecute people who were like cooking meth around kids. Right.
00:11:59.720The idea being that, like, you can specifically endanger a child by exposing them to, like, environmental toxins in the creation of methamphetamine, right?
00:12:10.700And now the meth lab in this scenario is, in fact, a woman's body, right?
00:12:15.700If you ingest, say, marijuana or cocaine or alcohol during your pregnancy, you are said to have chemically endangered your fetus, which is a person for the purposes of the law, by ingesting that drug yourself, right?
00:12:32.200So the body is elevated to the status of like an environment that the occupant of the body has a responsibility to keep clean, right?
00:12:39.180And yet, weirdly enough, the idea that chemical endangerment might extend to maybe, I don't know, poisoning our water and our climate, that that might lead to miscarriages and whatever.
00:12:48.320I'm guessing, like, this law would be revisited real quick if someone, like, sued Chevron for, like, nuking entire areas with their chemicals and shit like that, right?
00:12:56.960Yeah, like, weirdly, that does not really seem to be the way that these laws are being implied, right?
00:13:00.680So there's a couple of cases that I think sort of illustrate the way this is getting used.
00:13:05.920Kim Blalock was a white Alabama mother of six, was charged with a felony for taking a prescribed medication during her pregnancy with her youngest son.
00:13:17.420Her youngest son, by the way, was born completely healthy.
00:13:21.000There's something that happens a lot, which is that women who are about to give birth or just have given birth are tested for drugs without their knowledge.
00:13:30.760So there's Sarah Horton, a white California mother of five.
00:13:33.960She's actually not from too far away from us.0.99
00:13:57.940Brittany Poulaw was a 21-year-old Native American woman in Oklahoma who was sentenced to two years in prison for manslaughter in 2021 as a result of her miscarriage.
00:14:10.660She miscarried a fetus at about 16 weeks gestation, and prosecutors alleged that she used meth while she was pregnant and also that her alleged drug use was what caused her miscarriage.
00:14:23.940miscarriage. Another medical provider said that her fetus was incompatible with life and that she
00:14:29.940probably would have miscarried anyway. But, you know, she was she was sent to prison and she served
00:14:34.160her term there. More recently, there was Selena Maria Chandler Scott. It was a 24 year old black
00:14:40.340woman in Georgia. This one actually breaks my heart because she was found unconscious while she was0.98
00:14:44.900having a miscarriage. You know, she lost a lot of blood. She was having a medical emergency and was
00:14:50.500taken to the ER and was arrested in the ER and charged with concealing the death of another
00:14:57.320person and abandoning a dead body because a neighbor told the cops that he had seen her
00:15:02.120put fetal remains into a dumpster just before she passed out. This is somebody who's scared,
00:15:10.100bleeding, and very sick and needs help. And what she does in that state was used to charge her0.80
00:15:17.260with a felony. Those charges were ultimately dropped is the good news. It's worth noting that
00:15:21.540like, A, losing a pregnancy if you wanted to have a child is a deeply traumatic thing to have
00:15:28.400happened to someone. A lot of these laws seem to criminalize the fact that people are traumatized
00:15:34.600by that process, right? That's one thing. And the second is that these laws and the way they're
00:15:40.400being applied seem entirely to produce exactly the thing they then regulate. That is to say,
00:15:45.400you know, you're not going to come forward and be like, I worry about my pregnancy if you think
00:15:52.080you're going to get arrested or drug tested for the poppy seed bagel you just ate at Costco,
00:15:57.280whatever, right? You can tell that these laws are not there to prevent the thing that they're
00:16:03.140punishing. They're really trying to find reasons to punish pregnancy, to criminalize pregnancy,
00:16:08.940Right. Yeah. And, you know, all of these are legal theories that have to treat fetuses as persons in order to charge women criminally as if their actions while pregnant were equivalent to having acted negligently or violently toward what we might call an extra uterine, which is to say like a real child.
00:16:32.840Yeah. And in the wake of Dobbs, it's not just that more and more jurisdictions are treating fetuses that way. It's that the anti-abortion movement is trying to set up a future decision by the Supreme Court that will make such an interpretation of the law mandatory nationwide, right?
00:16:49.620Because the fetal personhood line asserts that personhood begins at fertilization, such a ruling would ban all abortion, outlaw some forms of birth control, and these tend to particularly be the more effective and woman-controlled kind of hormonal birth control like IUDs, Plan B, and birth control pills, and create this vast leeway for states to criminalize a big swath of just everyday conduct by pregnant women, right?
00:17:18.800Yeah. And we might point out, this is something I learned from an event we did at Clayman years ago with this brilliant researcher and author. You should totally meet her. Her name is Maura Donegan. Where I learned, where it was pointed out repeatedly, if I recall, that, of course, it's not just about getting all in the business of women who are pregnant. It's really about getting into the business of women who could conceivably be pregnant.
00:17:42.380That is to say, the example I always think of, I have a friend who took this acne medication, I want to say.0.97
00:21:44.000There is the legend of St. Brigid, who's one of the two patron saints of Ireland in the later Catholic tradition, who lays her hands on a distressed pregnant nun and induces a miraculous abortion in that nun.
00:22:00.820This is one of the miracles that qualifies St. Brigid for sainthood.
00:22:04.100You know, fetal personhood is a much older moral concept than a legal one, but it's really not as old as you might think, right?
00:22:14.020Yeah. So the Catholic Church has long been like kind of broadly opposed to abortion and birth control. They're very heavy on like be fruitful and multiply. But they spent hundreds of years fighting back and forth internally and issuing these conflicting decrees about when life begins in pregnancy.
00:22:31.660At the moment in pregnancy where they place an event called insolment, which is like when the immortal soul affixes to the mortal body, right, and thereby elevates the fetus to the status of a moral person.
00:22:45.540But the church did not officially declare that insolment and hence, you know, the beginning of spiritual personhood occurred at fertilization for a really long time.
00:22:54.820They didn't actually settle on that doctrine until 1869. And even then, that was mostly meant to settle internal Catholic Church debates about the nature of Mary's conception, like the Virgin Mary as a fetus, and like what that meant for her to be, quote unquote, immaculately conceived. And that hadn't been made into official doctrine until 1854, right? So this is a lot more recent than you think.
00:23:19.200And even in the U.S. in the 19th century, when the Catholic Church was sort of like settling on when they thought moral life begins, you know, the anti-abortion movement as it originated in the mid-19th century in the United States was really not centered on the idea that a fetus was a person with rights, right?
00:23:40.700It was centered on two things, race and medical regulation.
00:23:46.620So there were basically two ideas, right, that immigrants were having too many babies in 19th century America and that the medical market was corrupt and unsafe, in part due to the kind of providers who performed abortions.
00:24:00.640Right. So there was nativist anti-immigrant sentiment that was really angry at like Protestant native born white women for not having enough babies and argued, especially that the territories that were being conquered in the process of westward expansion needed to be populated by Protestant white children instead of by these large groups of Catholic newcomers that were arriving on the East Coast from places like Ireland and Italy and Germany.
00:24:30.180Right. And this racist anti-abortion argument persisted as kind of one of the cores of the anti-abortion movements like sort of PR campaign well into the 20th century.
00:24:42.280Right. A lot of people, including like Teddy Roosevelt, talked about their opposition to abortion because they thought it encouraged white race suicide.
00:24:49.940That was the phrase race suicide. Right. So the notion that was we need to ban abortion because the women we want to be having babies are having abortions instead of having babies. Right. And the other anti-abortion sort of lobbying push was centered around a professional organization known as the AMA. Have you ever heard of these people?0.98
00:25:12.900So that represented a newly organized field of formally trained and accredited medical doctors.
00:25:19.420Because, you know, you have to remember that for a long time, a doctor was a person who described themselves as a doctor, you know.
00:25:26.380Medical schools were just coming to be sort of like standardized at the time.1.00
00:25:30.600And the profession was trying to clean up its act and create an air of authority in a market that was saturated with a lot of like self-taught healers and quacks.0.99
00:25:41.260And the AMA, this like new professional organization, really advocated for the interests of doctors specifically and kind of most energetically by campaigning against midwives.0.99
00:25:51.600If you ever read the Barbara Ehrenreich and Somebody Else Who's Escaping Me pamphlet, which is midwives and nurses, a really nice, very quick, easy history of this phenomenon.
00:26:02.620And they saw these midwives as both sort of professional competition and as people who made them look bad, right?0.63
00:26:09.620They degraded our profession as doctors by feminizing that profession.0.98
00:26:15.220And, of course, it was midwives who were performing the abortions for a very long time.
00:26:19.960So banning abortion was a professional coup for the AMA.
00:26:24.680It was a way to gain respectability for their work and also push their competitors out of business.
00:26:30.380And like every now and then they would talk about the moral worthiness of fetuses.
00:26:35.500So like Horatio Storer, a major AMA anti-abortion campaigner from the 19th century, once said that fetuses were endowed with all that appertains to men, which is a little vague.0.55
00:26:46.880I mean, for some men, that's definitely true.
00:26:51.080But they weren't like, this was not their main appeal, right?0.98
00:26:54.780Their main appeal for banning abortion was like, look, these women don't know what they're doing.0.95
00:26:59.920If someone was like, look, this creature that is inside another person and cannot survive outside of the womb versus Jack Proposick, which one of you has the richer life, do you think?0.98
00:27:09.500I'm like, yeah, I'm going to go with the fetus.
00:27:11.600all of this is to say that like the early anti-abortion movement contra the claims of
00:27:18.260anti-abortion movement today was actually really not concerned with fetuses as a class of people
00:27:23.980having legal rights that wasn't on their radar it wasn't an excellent let alone popular reading of
00:27:30.140the constitution at the time and so this was something that had to be invented and written
00:28:03.140So Storer said that legal abortion was, quote, the public confession of cowardly, selfish, sinful lust, right?
00:28:11.640Legalizing this admits to something and sort of embraces something that we should be trying to deny and expel.
00:28:19.560And Anthony Comstock, the anti-vice crusader from this era, we should probably do an episode on at some point.
00:28:25.920Yeah, maybe, given that that's probably going to ban abortion nationally, yeah.
00:28:30.540He once said that abortion, quote, allowed women to conceal their laps from chastity and that abortion enabled, quote, the concealment of licentiousness, right?
00:28:40.860So that is because women can keep from getting or staying pregnant and keep from becoming visibly pregnant.
00:28:47.220They do not have the physical evidence of their sexual transgression, right?
00:28:51.000They can keep secrets that he doesn't think they should be able to.
00:28:54.440I'm trying to imagine what that argument is like.
00:28:57.420Like, oh, wait, that's exactly how they talk about the pill today, right?
00:29:01.300Like, that's their argument against the pill.
00:29:03.280Like, it allows women to have sex with different people and decide whether they want to get pregnant.
00:29:10.640That seems to be the extent of the source of their discomfort.
00:29:13.140Well, it's not just that you can decide whether or not you want to be pregnant, which they definitely don't think women should have a say in.
00:29:18.640You can also decide whether or not you want other people to know about your sex life, right?0.99
00:29:23.340Yeah. Being pregnant. This is something that like sort of radical feminists point out about pregnancy all the time. It is evidence of sexuality. Right. And the pill and by extension abortion allow sexuality to be concealed from public view. Right. So I break this up for two reasons. The first is that these are not guys looking to adjudicate for the fetus the sort of public entitlements or markers of status that the question of personhood implies. Right.
00:29:50.820They're talking instead about sexual morality and about regulation of the private sphere and who should be allowed or required to conceal what, right?
00:30:02.300And two, this question of concealment and revelation is going to be important when we move into conceptions of the fetus in the 20th century as both law and technology sort of change what privacy means around pregnancy.
00:30:17.000So questions of personhood and citizenship actually enter the abortion debate in the early 20th century, and they enter on the pro-choice side.
00:30:25.660They enter in the guise of Margaret Sanger, the abortion and birth control activist, who said in 1917, if women must break the law to establish a right to voluntary motherhood, then the law shall be broken.0.75
00:30:36.600Right. So this is like some of the more religious oppositions to abortions in the 19th century who said that, you know, even if abortion is legal or some kinds of abortion are legal, it should be illegal under a higher law.
00:30:51.620Right. Sanger is making a pro-choice argument appealing similarly to a higher law.
00:30:57.700Right. The law might subjugate women, but we have a higher law of human dignity to which women are going to obey by sort of grasping at birth control and grasping at voluntary motherhood.0.71
00:31:09.140And this is sort of a piece with the broader suffragette era when Sanger is tying abortion and birth control to women's rights and integrating them into this vision of a more fulsome and democratic women's citizenship that the suffragettes were working for, right?
00:31:23.460So making abortion and birth control a question of abortion seekers' rights rather than of their sexual morality or of their medical care or other like quote-unquote private matters, that makes abortion into specifically a political question, right?
00:31:37.480So now we have a clear class of persons with an intimate citizenship and public rights-based interest in abortion access, and that's women, right?
00:31:46.740And so slowly over the course of the early 20th century, the courts gradually begin to create loopholes in the abortion bans that have been passed in the 19th century and in the obscenity laws that have been passed in the 19th century that allow doctors to mail abortion and contraception drugs and provide abortion more often, right?
00:32:07.120Right. So abortion is not considered at this time an individual right of the persons or citizens who are having the abortions, but a professional prerogative of this elite class of doctors.
00:32:19.580Right. Yeah. And when Roe is issued in 1973, it's the doctor's privacy and professional prerogatives that will be central to the rationale of that decision.
00:32:28.960Right. So it's largely sidestepping questions of personhood, citizenship, equality and the like sort of attendant entitlements.
00:32:37.120But the politics of abortion is already considered deeply implicated in what it means to be a human being, in questions of dignity and worth and freedom, right?
00:32:48.140That's where the politics are, even if it's not where the law is.
00:32:52.340So in the mid-20th century, in the years before Roe, there's a growing pro-abortion movement, right?
00:32:59.280It's based largely on concerns about public health.
00:33:01.400because like whatever you've heard about abortion in the years before Roe v. Wade,
00:33:08.000There was extortion, there was blackmail, there was sexual violence.
00:33:12.320All of that was very common as well as really common health complications
00:33:16.360like infections, like uterine ruptures, like hemorrhages.
00:33:21.120And this really claimed a lot of lives.
00:33:23.640It's destroyed survivors' health and fertility a lot of the time
00:33:27.040and it put a big, big strain on public resources.
00:33:30.880And if people want to hear more about this, Moira was on You're Wrong About, I remember, for a wonderful episode where she talked Sarah Marshall all through, well, one group that started to change that.
00:33:41.820But also, I think that, if I recall correctly, that episode touched deeply and interesting ways on just what it would have been like to procure an abortion in the late 1950s, early 1960s.
00:33:53.960It was expensive. It was scary. It was dangerous. It was painful, right?
00:33:57.880Yeah. And the women that you profile who were able to circumvent this did it by hiring not a doctor.0.98
00:34:08.080Yeah, they kind of, they didn't mean to do that. It's a good episode. I think I am actually proud of that. And the story of Jane has been told by some really talented feminists, both who were members of the movement and who have historicized it in the years since. I think it's really worth looking into.
00:34:23.660Yeah. But, you know, in these years before Roe, like feminists and doctors are kind of teaming up to push for more abortion access and more reform, being like this can't go on this way. And you get this kind of first like primarily Catholic group of anti-abortion activists who are really alarmed by this.
00:34:44.260But they don't want to make an argument on religious grounds, right?
00:34:49.860The 19th century anti-abortion movement didn't want to be associated with the Catholics either, frankly.
00:34:54.440But the 20th century anti-abortion movement, they're thinking, like, we really want a secular argument that can integrate into Americans' commitment at the time, pretty robust, to the separation of church and state.
00:35:07.760and that can refrain from inflaming what they still see as a pretty potent anti-Catholic
00:35:15.260sentiment, right? So they're trying to create an opposition to abortion that is something that
00:35:20.500they can say comes from American values rather than Catholic values. And so they come up with
00:35:27.100this idea of the unborn. They eventually will start to read fetuses into the constitution0.59
00:35:33.340And really in the cultural sphere, they make the fetus into a full-fledged character, right?
00:35:40.200So anti-abortion activists start speaking about the fetus as an individual distinct from the mother with its own rights and interests, right?
00:35:49.620It's deliberately trying to ape the language of liberalism.
00:35:52.760Oh, now two sets of rights of co-equal participants in the public sphere come into conflict.
00:36:26.100But, you know, I think this is a good moment to point out, Adrian, as you say, that abortion is an opportunity.
00:36:31.320It's a place where conservatives are liberal. Right. They become liberal. They're advocating for what they say is a downtrodden population. And that's a really specific and deliberate strategic shift that they make in the 1960s, really. Right. Because you have the sexual revolution. You have changing ideas about sexuality and about gender.
00:36:52.960So these old sexual morality arguments that were really driving the anti-abortion movement in the first half of the 20th century and the 19th century, it's not that they're not sincerely held by the anti-abortion movement anymore.
00:37:15.420What is popular at this moment is sort of the politics of the new left.
00:37:20.620You have a civil rights movement that has, like, really claimed a lot of a moral authority, particularly after the assassination of Martin Luther King, right, and the passage of the Civil Rights and Voting Rights Acts, right?
00:37:31.640You've got this model of a kind of righteous political engagement based on a subordinated, unjustly maligned class of persons, right?
00:37:42.720And that is the model in which they remake the anti-abortion movement.
00:37:46.140Well, it's also, I mean, maybe you'll get to that, but like, it's also, it's better than any one of those because the fetus is a person whose rights you can loudly defend without the fetus ever getting to chime in at all.
00:38:02.100I'm told that anyone else that you did a civil rights movement on could then use that right to criticize you or be like, that's not actually what I want or don't speak for me.
00:38:11.580The fetus conveniently is just a projective surface0.99
00:38:14.880onto which you can lay all your fucking hangups.1.00
00:40:01.340And, you know, you weren't seeing it in real time.
00:40:04.280What was once a mystery, this real-time reality of what a fetus in the womb looks like, how it moves, the way it is similar or different from a real baby, that's suddenly knowable.
00:40:27.340And in a sense, an end to the kind of physical privacy that most of us have in our physical bodies, right?1.00
00:40:34.800That's no longer operative for a pregnant woman.1.00
00:40:38.380Somebody can see inside of you and they do, right?1.00
00:40:41.800And am I right to think that this technology is only increased in use?
00:40:45.480I'm just thinking because, like, I have never heard a story from my parents about what I was like in the womb or whatever.
00:40:51.000I don't know if you know this, but like when River was a fetus, she would consistently be sucking her thumb when we would be looking at her.
00:40:59.720A habit that she's kept up to the present day.
00:41:02.540And it's very funny to think about that continuity.
00:41:05.020But then again, like I'm like, I don't think I've ever heard a story like that from my parents.
00:41:08.660And I'm sure it's about the fact that in 1979, 1980, when I was hanging out in my mom's womb, probably an ultrasound was more expensive and more rarely done.
00:41:43.460Yeah, you know, like the more precise the imagery has gotten, the more the imagery is used against women's rights, right?0.97
00:41:51.420So something you hear a lot when you dig into these filings, as I am cursed to do for my sins, is that like male fetuses masturbate in the womb.0.98
00:42:00.100And this is used as evidence of their life and their personhood and the primacy of their rights over that of the women carrying them, right?0.99
00:42:10.100Well, to be fair, I think masturbating is the pinnacle of J.D. Vance's personhood.0.98
00:42:15.400His orgasm over your rights, ladies, that begins before he's even born.0.96
00:42:20.260My cousin saw what would become her son doing this in the womb on an ultrasound.0.94
00:42:25.520And that's how she learned that she was having a boy.
00:42:27.620And she goes, oh, well, does he ever stop doing that?
00:42:30.220And the tech goes, yeah, in about 80 years.
00:44:44.240is that the pregnant woman is not at all visible in them.
00:44:47.440Her body, her very insides are rendered into this blank, featureless, black background against which, as you say, this very vivid, very brightly colored fetus contrasts very sharply, right?
00:45:02.280So the fetus here is a protagonist, and the woman carrying it is reduced to mere environment.
00:45:08.660And we might ask about who tends to get a photo spread in Life magazine.
00:45:13.440You know, this isn't People magazine, but it's still People.
00:45:16.100Probably this or like, you know, Paul McCartney or whatever, right?
00:45:18.960Like the idea is this is how you photograph a person.
00:45:45.740The attention is exclusively on the fetus, right?
00:45:50.200It serves to do what the anti-abortion movement has long wanted to do, which is divert attention away from the claims of women and render them invisible.
00:45:59.220There's only one quote-unquote person in these photos.
00:46:04.840so as these images of the fetus enter the mainstream they set off a wave of identification
00:46:13.460with and desire to advocate for the fetus and its interests right and as you said adrian the fetus is
00:46:20.840like a very convenient character to advocate for it can't do anything and so it can't do anything
00:46:27.200wrong. It is maximally free of culpability and maximally devoid of any ability to advocate for
00:46:35.280itself, protect itself, exert power, or act on its own behalf, right? It is both perfectly innocent
00:46:42.240and absolutely dependent on you, on your action, on your protection, right? And so this convenient
00:46:49.320protagonist is revealed by technology at this very particular historical moment. This is 1965,
00:46:55.840Right. Yeah. Conceptions of human rights have become a lot more widespread and much more legally and morally authoritative in the years following World War Two.
00:47:05.300And one thing you'll see a lot in the post-1965 era is that anti-abortion advocates really adopt Holocaust metaphors pretty heavy handedly for what they say is a mass human rights violation against fetuses.
00:47:19.280They still use that language all the time.0.96
00:47:21.060Yeah, it's very funny in Germany. You get that from the Catholic Church and no one ever says boo. Holocaust denial is a crime in Germany. And I'm always like, I guess it only goes for some people, but not if the bishop tells you medically managing a pregnancy that was never going to be carried to term is like killing six million Jewish people. Like, great. I'm glad we got that on the record, your holiness.
00:47:42.240Well, like the maximum innocence of the fetus also has to like render any violation of the fetus's rights or interests as like maximally wrong.
00:47:51.340Right. But also in the mid 1960s, there's a specific model of politics emerging in the U.S., which is movement politics, as we said, advocating for the rights of oppressed groups.
00:48:01.340Right. In constitutional terms and in moral terms.
00:48:04.420So we've got the civil rights movement.0.89
00:48:16.780But even if these new social movements were on the other side of the cultural divide, they were also like gaining moral authority and they were capturing people's imaginations.
00:48:25.200And crucially, these movements were also beginning to win some legal victories with courts modeling how they would expand legal protections for groups with claims of identity-based vulnerabilities or, you know, claims of historic persecution.
00:48:42.040It's funny that these people are A, so dead set on using the 14th Amendment to protect the fetus and B, so dead set against using the 14th Amendment to protect just about anyone else.
00:48:52.800Yeah. So, you know, it's interesting that they sort of evolve in how they're thinking about this.
00:48:57.440So you're right that they start using this model of the Civil Rights Movement, the Civil Rights Act, as their sort of template for how to think about and advocate for the fetus.
00:49:10.300So Father William Keneally in 1962, who became one of the first people to argue that fetuses were covered by the 14th Amendment, said that our pleas for the unborn is for the very same legal fairness accorded to all of our citizens, right?
00:49:36.740Which was the initial argument, which is that abortion violates the due process rights of the fetus because they are aborted without a trial.
00:49:49.660It's a little like also historically contestable because at the time in 1962 before Roe, only legal abortions were happening under like, quote unquote, therapeutic conditions in hospitals.
00:50:40.600They eventually start arguing on the legal side that fetuses should be covered by the equal protection clause, meaning that they can't be aborted at all.
00:50:49.540So the fetus came to be spoken of as an oppressed class and opposing abortion, but came a way to sort of advocate for the powerless and righteousness.
00:58:15.820But if you go to, you know, any abortion clinic on a Saturday or any anti-choice event, they will really use feet kind of a lot.
00:58:25.060It's weird. But the little like the little baby footprints or like fetus feet are a recurring part of what emerges, which is this like dense symbolic world of fetal imagery.
00:58:37.880It grows up more and more around the notion of fetuses as this like oppressed and brutalized class of innocents.
00:58:45.640Yeah. Also in the mid 1970s, activists start holding funerals for like, quote unquote, all the aborted babies.
00:58:53.540they will like often symbolically bury a tiny white casket and use the occasion to erect
00:59:01.140a tombstone memorial to like the quote-unquote unborn have you ever seen these yeah they're at
00:59:07.340like a lot of cemeteries they're sometimes like outside of a of a church holland compares them
00:59:13.460to like the tombs of the unknown soldier that popped up in europe after world war one it's a
00:59:19.740empty or anonymous grave that stands in for what's really like a broader social rupture, right?
00:59:25.640Yeah, yeah. I mean, there's the story about Rick Santorum, far-right senator from the state of
00:59:31.660Pennsylvania in the 1990s and early 2000s, his wife miscarried, and they kind of slept with
00:59:37.260the fetus for some time in their bed. So like, yeah, the way they're treating this to make
00:59:43.460visible this thing that they feel is too invisible when it's inside of a person.
00:59:48.480I'm starting to pick up on the through line you're laying down here, yeah.
00:59:51.120Even if, God forbid, a child died, would you sleep with that child's body?
01:00:33.660And it was distributed very, very widely in public and religious schools.
01:00:38.640And it purports to show a filmed abortion with the fetus allegedly like resisting and screaming.
01:00:46.780And it depicts the fetus as things it is not, right?
01:00:50.480Which is like conscious, suffering, and scared.
01:00:53.740And then you have these developmental neurologists saying, well, it actually doesn't have the physical capacity for that kind of cognition at the time that you're saying that it does.
01:01:03.540And that's just sort of like discarded, right?
01:01:43.360Yeah. So in 1974, almost immediately after Roe v. Wade, or actually that begins in 1973, the anti-abortion movement drafts the first of many, many versions of what they call the Human Life Amendment, which is a proposed amendment to the Constitution.
01:02:00.160And there's a big fight within the anti-abortion movement about how to phrase this legally, right?
01:02:06.560This constitutional amendment meant to overturn Roe.
01:02:09.600And at first they're saying, OK, we could probably have a better chance of passing if we just say that this is a state's issue.
01:02:16.080You know, like send it back to the states, right?
01:02:18.300Like states have the ability to ban abortion.
01:02:21.080But the anti-choice movement doesn't want that.
01:02:23.540They want to define life as beginning at conception and apply the 13th and 14th Amendments to fetuses and to embryos, right?
01:02:33.720So they eventually write something based on the 13th Amendment with the idea that it can constrain the actions not just of states, but also of private actors, right?
01:02:43.320We're going to ban abortion nationwide.
01:02:45.220We're going to say that the fetuses is a person.0.87
01:02:47.340We're going to make it sort of equivalent to murder and a 14th Amendment violation to terminate a pregnancy. Right. It fails. It fails immediately. Yeah. Yeah. It gets no uptake whatsoever.0.56
01:03:01.360Meanwhile, the Human Life Bill, which is a legislative vehicle for the same project, it's perennially taken up by Congress. I think it was introduced yet again this year. Various different wordings and different sponsors of this bill will pop up. It never passes, right?
01:03:18.060Right. However, there's kind of more movement on the judicial side. So in 1989, the Supreme Court takes a case called Webster versus Reproductive Health Services, which is about a Missouri law that imposes various abortion restrictions. Right.
01:04:05.820Right. Because we don't know how Missouri would implement it. And that leaves the door open for fetal personhood recognition in the future. That's sort of like this ray of hope for the anti-abortion movement that they really grasp onto. Yeah. And that Missouri law was part of a bigger trend.0.97
01:04:22.680So in the Roe era, the anti-abortion movement like consolidates. It forms these large organizations with really robust funding networks. The amount of money on the anti-choice side is insane. And they began cultivating these like really inventive and really like kind of cannily strategic litigation strategies designed to bring cases before the federal courts that will erode and eventually overturn the abortion right.
01:04:50.980Right. And they really succeed in draining a ton of resources from the feminist movement in the process. Right. I think like something people sort of tend to forget or not really realize about the Roe era is like, yeah, these abortion bans would get passed by a red state and be sort of like a fundraising and campaign vehicle for Republican politicians there.
01:05:11.740and then they would get thrown out by the federal courts.0.58
01:05:14.560But that process required your Planned Parenthoods,1.00
01:05:18.580your, you know, Center for Reproductive Rights1.00
01:05:20.540to, like, hire a fancy lawyer and file a lawsuit1.00
01:05:24.260and spend all that time and money getting it thrown out, right?
01:05:27.800Yeah, and this is something that I feel like you've told me about before,
01:05:30.260which is that it never ended up expanding abortion rights.
01:05:33.580It always ended up sort of setting sharper and sharper limits on it.
01:05:37.660Well before, you know, Dobbs came along,
01:05:39.960basically was very clear what could and couldn't pay for it, who could and couldn't provide it.
01:05:44.840You know, all these restrictions you could place on it. It was never about like, well, no, you can't
01:05:48.560do this. What it did was it wasted a lot of time and money for feminists. You're right that it sort1.00
01:05:52.840of curtailed the political possibilities and also like drained the resources that could otherwise
01:05:58.460have been spent expanding abortion access. Right. But for the anti-choice side, it creates a lot of
01:06:04.280judicial rulings articulating the limits of the abortion right and the exact nature of state's
01:06:10.140prerogatives in limiting abortion. Right. Yeah. So like towards the end of the Roe era,
01:06:14.600pro-choice groups kind of stopped challenging some of these. Yeah. Out of fear of the rulings
01:06:20.500that they would get if they did. Right. So Texas, for example, had a 20 week ban in effect from,
01:06:26.360I think, like 2014 before Dobbs. Right. And that was an unconstitutional pre-viability ban
01:06:31.920under Roe, right? They just never challenged it because they sort of didn't dare. The pro-choice
01:06:37.720abortion rights groups sort of didn't dare to bring that before the federal courts in that age
01:06:41.980to be like, okay, well, they'll just overturn Roe if we try to bring this up, right? There were also
01:06:46.660things like trap laws, these targeted restrictions on abortion providers, which were meant to drive
01:06:51.580abortion providers out of business by making their practices subject to these medically needless,
01:06:57.440but, like, extremely onerous and expensive regulatory regimes, right?
01:07:02.120Yeah, for instance, you had to have a practicing physician on site.
01:07:06.040Texas had one about the width of the hallways.
01:07:10.200Yeah, Louisiana eventually passed that law, too.
01:07:13.060You know, these are, like, things that make it very, very expensive
01:07:17.660to be a medical practice that performs abortion.
01:07:20.640So, right, like, Trump's banning of Planned Parenthood from Medicaid
01:07:23.760is sort of like a nationalized extension of the strategy.
01:07:26.600It just like makes abortion practice financially impossible. But fetal personhood laws and these bills are part of this broader strategy to make abortion inaccessible, too expensive to perform and sort of like legally frowned upon in various different parts of the like civil and criminal code. Right.
01:07:46.740Yeah. So anti-abortion politicians in state houses would just regularly introduce and sometimes pass bills that created legal recognition of fetuses and embryos as persons.
01:07:58.340And sometimes these were very straightforward, like legal personhood shall be recognized beginning at conception and lasting until natural death, like that kind of language.
01:08:06.080But sometimes they were like a little wackier or weirder.
01:08:09.580They'd sneak it into other stuff, right? Yeah.
01:08:11.900Yeah. It's often in stuff that has like nothing to do with abortion.0.80
01:08:16.220So they'll be framed as bills to help or defer to pregnant women, or they will be framed as sort of like just kind of irrelevant things.
01:08:24.940So one way this happens a lot was like laws allowing women to collect child support from the fathers of unborn fetuses beginning from the time of conception rather than from the time of birth.
01:08:37.400Another strategy was allowing parents to claim unborn fetuses as dependents for state tax returns.
01:08:46.160Another was allowing fetuses to inherit or own property.
01:09:06.080On the grounds that technically there was another quote unquote person in the car, right?
01:09:09.420These are like ways to sort of like sneak fetal personhood into the law.
01:09:14.320Yeah, it's the under God strategy, isn't it? Like, you're like, you insert under God into the Pledge of Allegiance and you're like, of course we're a Christian nation. Look, under God is in the Pledge of Freaking Allegiance. Like, well, yeah, you wrote it in there 20 years ago. Like, this is essentially that, right? Like, well, by that logic, if we let women use carpool lanes just because they're pregnant, why shouldn't there be, right? That's kind of the strategy here.
01:09:35.360So one big way that this gets pushed is through criminal feticide laws, which emerged in the 1980s, and they make violent offenses against pregnant women into a kind of double offense or an offense with two victims, right?
01:09:51.000This is a strategy that actually sometimes gets buy-in from what was kind of left over of the organized liberal feminist movement, so the remainder of groups like now, because it was pitched as a pro-woman or an anti-domestic violence provision.
01:10:04.720Yeah. And the debates about these laws tended to center on stories of women with wanted pregnancies who lost those pregnancies in like tragic circumstances. Right. It's horrible. Yeah. So one like really popular story was that of Janet Johnson, who was a Minnesota woman who was injured in an accident where she got hit by a drunk driver in the mid 1980s.0.83
01:10:27.440And her fetus was stillborn as a result of the injury she suffered. Right. But these laws, these fetus side laws don't cite the fetus as endangered or harmed property of the victimized woman. It doesn't cite pregnancy as an aggravating factor that makes violence against that woman more egregious. Right.
01:10:47.980There are ways you could like sort of write this into the code that doesn't make the fetus what these fetus side laws did, which is a separate individual victim all on their own, right?
01:11:00.020And that is, you know, a person, right?
01:11:14.660It's sort of entangled with our legal system.
01:11:17.900Were they explicit about the fact that obviously the end goal of this was that this was all going to only come into play and only come into focus with a national abortion ban?
01:11:26.680I mean, the anti-abortion movement is pretty avowed in their rhetoric about, you know, believing that embryos and fetuses are persons and should have that legal recognition.
01:11:38.220You know, it's not a secret that they're gunning for this, right?
01:12:42.240But also because, you know, Citizens United creates a concept of a person that is big and amorphous enough for fetuses to fit within it, right?
01:12:54.200So where we are today is that Dobbs, which came down in June 2022, does not officially endorse fetal personhood.
01:13:04.480It does not grant personhood rights to fetuses or embryos, even though it does refer throughout to unborn human beings.
01:13:11.460Right. A lot of people had sort of expected the court to go there.
01:13:15.060Yeah. I expected the court to go there.
01:13:17.400Not even Clarence Thomas really touches it. Right.
01:13:19.640So any constitutional amendment is still dead in the water. Right.
01:13:23.960I think this court will probably be more amenable to a fetal personhood case if they get the right vehicle for one, but that hasn't emerged yet.
01:13:33.380But they might not really need it because personhood is de facto already in effect in a lot of jurisdictions, right?
01:14:06.180And by extension, this special personhood for the fetus necessitates a kind of abbreviated or like abridged personhood for the pregnant woman, right, who is under all these obligations to this other kind of legally supreme entity who occupies the very inside of her body.