Episode 99 -- Fetal Personhood

Hello, I'm Adrienne Dahl.

And I'm Moira Donnegan.

And whether we like it or not, we're in bed with the right.

So, Adrian, what do you know about fetal personhood?

Yeah, I mean, it's one of those things that has been shaping our legal landscape for some time now.

And I have some sense that that's kind of new.

I 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?

Yeah, 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?

Or corporations.

And 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?

So lots of states have laws on the books that either formally or in effect classify fetuses and embryos as persons or as person-like.

This was a major push of the anti-abortion movement during the Roe era to get these laws passed.

And 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?

If 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.

But now that Roe is gone, fetal personhood has, you know, some legal teeth and some far-reaching implications.

And we're going to take a look at what that means.

So Mari.

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?

I really draw heavily and rely very heavily on Mary Ziegler'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.

I also draw a lot from Jennifer Holland's Tiny You and Leslie Reagan's When Abortion Was a Crime.

Michelle Goodwin's Policing the Womb is kind of the core, like biggest book on pregnancy criminalization.

I think it's absolutely indispensable.

Andrew Dworkin's Right-Wing Women, of course.

Lauren Burlance, The Queen of America Goes to Washington City.

And the recent report from Pregnancy Justice, Pregnancy as a Crime.

Yeah.

So walk me through it.

Am I right to think that this is something that really has become acute only after Dobbs?

That is to say that it had a long kind of wingnut history and now has sort of moved into the mainstream of conservative legal thinking about this?

Yeah, 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?

It'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.

Maybe 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.

We'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 in 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.

And this basically made many common IVF practices, which do involve the destruction of embryos like pretty regularly, into, you know, legally murder, right?

So, Adrian, do you remember this case at all?

I do.

I think we've covered it on the pod.

The setup is darkly funny, even though if you have frozen embryos inside one of these facilities, they're not that ha-ha funny, but 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.

It's not, he doesn't get charged with manslaughter, I think.

It's about whether or not the clinic is liable and what exactly it's liable for.

Is that right?

Yeah, it's a civil wrongful death law, right?

Yeah.

That's invoked in a lawsuit by the people who had created these embryos and had them frozen at this facility.

I believe it was a hospital that had a fertility clinic in it.

And this was a patient in a different, like non-fertility-related part of the hospital, like therefore a different condition who wandered off.

And yeah, like created a an unintentional bit of, you know, chaos.

And this was not treated the way we 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?

This 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.

This is treated as if these were in fact already children who were murdered by this guy's actions.

Right.

And 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?

Like these freezers were referred to as like quote-unquote cryogenic nurseries.

Wow.

The 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, you know, personhood starts at fertilization under state law, but only in the case when that fertilized egg is already inside a uterus, right?

If it happens in a petri dish, that's not a person.

But if it happens in a uterus, that is a person.

Huh, they're separate but equal.

So it's already interesting, right?

Like the Alabama case revolves around wrongful death, meaning it's about what the hospital should or shouldn't have done.

And as you say, you could have just sued for negligence, right?

And saying, well, this represented a serious monetary and emotional damage to us.

U.S.

tort law has plenty of ways of dealing with that.

It's not what they did.

The other interesting thing is that the dude didn't get charged, right?

Like, it already is sort of like this weird sort of semi-fiction, right?

Where they're like, well, it's murder in one way, but it's not murder in another way.

It's like, okay, so like, let's say I was a person, a real person, and I got murdered.

I'd be kind of miffed if people were like, well, but, you know, it's not quite really murder.

It's like, well, you're already saying that this is not, that you, you both committed to this fiction and you're not, right?

You'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.

Well, 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?

It's only personhood inside a woman's body.

It's not personhood in a lab.

And 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 wealthy people, right?

So 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 Dobbs become something they could conceivably get and enact without actually having considered all the implications and all the political fallout of such a policy.

But, and this is where I like put on my sort of like will actually hat, is that the truth is that fetal personhood is sort of everywhere.

Yeah.

And it's been having big impacts on the way that pregnant women can legally act and the way they interact with the law, even before Dobbs.

It's just sort of accelerated in the couple of years since.

So just this week, there was a report put out by the nonprofit Pregnancy Justice, which I really encourage people to check out.

If they're interested in, you know, reproductive rights, check out Pregnancy Justice.

They provide like legal representation for people who are being criminalized for their pregnancy outcomes.

And Pregnancy Justice found that there were 412 prosecutions of women stemming from their you know, pregnancy behaviors or pregnancy outcomes for things that would not have been criminal had they not been pregnant.

And they think that this is probably an undercount, right?

And that's just from the first two years following Dobbs.

That's just 2023 and 2024.

And most of those involve things like charges of child endangerment or child abuse or child neglect or homicide that are leveraged against women who are said to have behaved some way while they're pregnant that, you know, was about the treatment or the behaviors of their own body, which is said to have violated the rights and prerogatives of this other person who occupies their body, right?

I think it's worth noting also that like these are not evenly distributed across the United States.

And it's often about kind of a moralistic worldview, right?

Like you endangered the fetus by doing drugs or drinking alcohol, right?

But it also often involves, especially in cases of miscarriage, basically these kind of folk theories that the anti-choice movement has, where like they think like, well, that can't happen or that's not how you lose a fetus, et cetera, et cetera.

So 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.

Yeah, 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.

Sometimes there's just sort of like suspicion and surveillance for people who haven't done anything that's actionable, even under these laws.

Sometimes 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.

This happens a lot with like child abuse cases, right?

There's something called a 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?

The idea being that like you can specifically endanger a child by exposing them to like environmental toxins in the creation of methamphetamine, right?

And now the meth lab in this scenario is in fact a woman's body, right?

Yeah.

If 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?

So the body is elevated to the status of like an environment that the occupant of the body has a responsibility to keep clean, right?

And 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, I'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?

Yeah, like weirdly, that does not really seem to be the way that these laws are being implied, right?

So, there's a couple of cases that I think sort of illustrate the way this is getting used.

Kim 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.

Her youngest son, by the way, was born completely healthy.

Oh, there'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.

Crazy.

So there's Sarah Horton, a white California mother of five.

She's actually not from too far away from us.

She's from up in Santa Rosa.

She ate a salad from Costco just before she went into labor.

And the salad, I swear to God, had like poppy seeds in the dressing.

And so when she was surreptitiously drug tested right after giving birth, like the next day, she tests positive for opioids.

And they take her infant daughter away.

Jesus Christ.

Brittany Pulaw 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.

She 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.

Another medical provider said that her fetus was incompatible with life and that she probably would have miscarried it anyway.

But, you know, she was, she was sent to prison and she served her term there.

More recently, there was Selena Maria Chandler Scott, who's a 24-year-old black woman in Georgia.

This one actually breaks my heart because she was found unconscious

while she was having a miscarriage.

You know, she lost a lot of blood.

She was having a medical emergency and was taken to the ER and was arrested in the ER and charged with concealing the death of another person and abandoning a dead body because a neighbor told the cops that he had seen her put fetal remains into a dumpster just before she passed out.

This is somebody who's

scared,

bleeding, and very sick and needs help.

And what she does in that state was used to charge her with a felony.

Those charges were ultimately dropped is the good news.

It's worth noting that like, A, losing a pregnancy, if you wanted to have a child, is a deeply traumatic thing to have happened to someone.

A lot of these laws seem to criminalize the fact that people are traumatized by that process, right?

That's one thing.

And the second is that these laws and the way they're being applied seem entirely to produce exactly the thing they then regulate.

That is to say, you know, you're not going to come forward and be like, I worry about my pregnancy if you think you're going to get arrested or drug tested for the poppy seed bagel you just ate at Costco or whatever, right?

You can tell that these laws are not there to prevent the thing that they're punishing.

They're really trying to find reasons to punish pregnancy, to criminalize pregnancy, right?

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 like a real child, right?

Yeah, you can just say real.

Yeah.

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?

Because 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?

Yeah.

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.

That is to say,

the example I always think of, I have a friend who took this acne medication, I want to say.

Accutane.

Yeah, that really is apparently like you should not get pregnant when you're on this.

And they were like, well, here's your Accutane and here's your birth control.

And she's like, I'm a lesbian.

That's not going to be a a concern.

They're like, you need to take this.

And she's like, I really don't.

I don't know how to explain this to you, but I'm not going to get pregnant.

And in the end, she's like, fuck it.

I'll eat your more pills.

Like, I don't get what we're doing here.

But like, in that moment, she wasn't being treated as a woman who can make informed choices about her own body, right?

They didn't just say, like, hey, in case you're going to have sex that could lead to pregnancy, please take this.

They were like, you have to take this no matter what.

You know, and she was just treated as essentially a womb haver at that moment, right?

Yeah, let me tell you, nobody believes that lesbians aren't real more aggressively than like frat boys.

And gynecologists trying to dodge liability, right?

Because like they do not take your word for it that you're not having intercourse, right?

They're just like, well, I do not believe you.

Every woman has intercourse.

Every uterus is in danger of conception.

And for me to keep my insurance premiums low, I will be treating you as de facto heterosexual regardless of what you say.

That is a very common lesbian at the doctor experience.

Oh, man.

They're like, but, but, but, but, but, dudes rock.

But like, listen, the thing about fetal personhood is that it's a little bit of a different

semantic terrain than what we are traditionally talking about in the like quote-unquote abortion debate, which is like, when does life begin, right?

Right.

So the question of what a person is is relevant here.

And there's, you know, some invention that's required in that concept to make person apply to a fetus or an embryo, right?

So in a lot of, you know, the Western philosophical tradition, the long-standing definition of a person is that a person is a being that has to have certain capacities, right?

It has to have a capacity for reason or moral judgment.

It has to have a capacity for self-consciousness or for certain kind of agency, right?

Fetuses very obviously lack these.

The other measure, which is sort of the religious measure, is about whether or not fetuses have a soul.

And that's kind of a, you know, subjective and dare I say unfalsifiable claim, right?

You can't make an assessment of, you know, the truth value of a statement like this embryo has a soul with certainty, right?

Or at least I can't.

And then there's the legal measure.

And in our world, what legally constitutes a person is functionally just at the discretion of judges, right?

Where legal life and where legal rights begin and end is basically where the Supreme Court says they do.

Yeah.

Can I ask really quickly?

Yeah.

Is it true?

I mean, so my impression was that it's pretty clear if you read the biblical text carefully that even the religious basis, the supposed religious basis for this kind of falls away, like a scriptural basis at least.

I mean, religious, sure.

But aren't there passages in the Bible that fairly clearly suggest that miscarriage was in the biblical Middle East understood by and large as a loss of property and not the murder of a person?

Yeah, so there's a bunch of examples of pregnancy loss being treated in Christian religious tradition as very distinct from, say, like infanticide or the death of a child, right?

So there is an Old Testament passage, I think it's in the Book of Kings, I might have this this wrong, where a like ritual abortion is performed in the temple in Jerusalem, not in like a robustly feminist way, it must be said.

It's like a punishment for suspected adultery.

Oh, wow.

There 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.

This is one of the miracles that qualifies St.

Brigid for sainthood.

You 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?

Yeah.

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.

At the moment, in pregnancy, where they place an event called ensolment, 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.

But the church did not officially declare that ensolment and hence, you know, the beginning of spiritual personhood occurred at fertilization for a really long time.

They 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.

And 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?

It was centered on two things, race

and medical regulation.

So 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, right?

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, right?

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, right?

A lot of people, including like Teddy Roosevelt, talked about their opposition to abortion because they thought it encouraged white race suicide.

That was the phrase, race suicide, right?

So the notion that 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?

The American Medical Association.

Exactly.

So that represented a newly organized field of formally trained and accredited medical doctors.

Because, you know, you have to remember that for a long time, A doctor was a person who described themselves as a doctor.

You know, medical schools were just coming to be sort of like standardized at the time.

And 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.

And the AMA, this like new professional organization, really advocated for the interests of doctors specifically and kind of most energetically by campaigning against midwives.

If 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.

And they saw these midwives as both sort of professional competition and as people who made them look bad, right?

They degraded our profession as doctors by feminizing that profession.

And of course, it was midwives who were performing the abortions for a very long time.

So banning abortion was a professional coup for the AMA.

It was a way to gain respectability for their work and also push their competitors out of business.

And like every now and then they would talk about the moral worthiness of fetuses.

So like the 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.

I mean, for some men, that's definitely true.

I met some men.

But they weren't like, this was not their main

appeal, right?

Their main appeal for banning abortion was like, look, these women don't know what they're doing.

If someone was like look this creature that is inside another person and cannot survive outside of the womb versus jack proposic which one of you has the richer life do you think i'm like yeah i'm gonna go with the fetus

all of this is to say that like the early anti-abortion movement, contra the claims of the anti-abortion movement today, was actually really not concerned with fetuses as a class of people having legal rights.

That wasn't on their radar.

It wasn't an extant, let alone popular reading of the Constitution at the time.

And so this was something that had to be invented and written into history later.

One thing I do want to flag from the 19th century era, however, is that anti-abortion activists of the 1800s seemed to sense that abortion related kind of uncomfortably to these ideas of like privacy, knowledge, and concealment, right?

So abortion hides what should be revealed and shamed, or it reveals what should be hidden with shame.

Right.

So Storer said that legal abortion was, quote, the public confession of cowardly, selfish, sinful lust, right?

Legalizing this admits to something and sort of embraces something that we should be trying to deny and expel.

And Anthony Comstock, the anti-vice crusader from this era, we should probably do an episode on at some point.

Yeah, maybe, given that that's probably how they get about abortion nationally.

Yeah.

He once said that abortion, quote, allowed women to conceal their lapse from chastity and that abortion enabled, quote, the concealment of licentiousness, right?

So that is because women can keep from getting or staying pregnant and keep from becoming visibly pregnant.

They do not have the physical evidence of their sexual transgression, right?

They can keep secrets that he doesn't think they should be able to.

I'm trying to imagine what that argument is like.

Oh, wait, that's exactly how they talk about the pill today, right?

Like, that's their argument against the pill.

Like, it allows women to have sex with different people and decide whether they want to get pregnant.

That seems to be the extent of the source of their discomfort.

Well, 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.

You can also decide whether or not you want other people to know about your sex life, right?

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 bring this up for two reasons.

The first is that these are not guys looking to abjudicate for the fetus the sort of public entitlements or markers of status that the question of personhood implies, right?

They're talking instead about sexual morality.

and about regulation of the private sphere and who should be allowed or required to conceal what, right?

And 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.

So questions of personhood and citizenship actually enter the abortion debate in the early 20th century, and they enter on the pro-choice side.

They 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, right?

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, right?

Sanger is making a pro-choice argument, appealing similarly to a higher law, right?

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.

And this is sort of 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?

So making abortion and birth control a question of abortion seekers' rights rather than of their sexual morality or or of their medical care or other, like quote unquote, private matters.

That makes abortion into specifically a political question, right?

Yeah.

So 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?

And 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?

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, right?

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, right?

So it's largely sidestepping questions of personhood, citizenship, equality, and the like sort of attendant entitlements.

But 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?

That's where the politics are, even if it's not where the law is.

So in the mid-20th century, in the years before Roe, there's a growing pro-abortion movement, right?

It's based largely on concerns about public health.

Because like whatever you've heard about abortion in the years before Roe v.

Wade, like it was worse, right?

There was extortion, there was blackmail, there was sexual violence.

All of that was very common, as well as really common health complications, like infections, like uterine ruptures, like hemorrhages.

And this really claimed a lot of lives.

It's destroyed survivors' health and fertility a lot of the time.

And it put a big, big strain on public

Aaron Powell, Jr.: And if people want to hear more about this, Moira was on Your Wrong About, I remember, for a wonderful episode where she talked to Sarah Marshall all through, well, one group that sought to change that.

But 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.

Trevor Burrus, Jr.: It was expensive.

It was scary.

It was dangerous.

It was painful, right?

Yeah.

And the women that you you profile who were able to circumvent this did it by hiring not a doctor.

Yeah, 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.

Yeah.

But, you know, in these years before Rowe, 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 at first like primarily catholic group of anti-abortion activists who are really alarmed by this but they don't want to make an argument on religious grounds right the 19th century anti-abortion movement didn't want to be associated with the catholics either frankly But 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, and that can refrain from inflaming what they still see as a pretty potent anti-Catholic sentiment, right?

So they're trying to create an opposition to abortion that is something that they can say comes from American values rather than Catholic values.

And so they come up with this idea of the unborn.

They eventually will start to read fetuses into the constitution.

And really in the cultural sphere, they make the fetus into a full-fledged character, right?

So anti-abortion activists start speaking about the fetus as an individual distinct from the mother with its own rights and interests.

Yeah.

Right.

It's deliberately trying to ape the language of liberalism.

Oh, now two sets of rights of co-equal participants in the public sphere come into conflict.

How shall we adjudicate it?

Oh, it's so complicated.

Like, well, one of the two supposed persons is inside the other person.

I don't know whether that's a classic case of like, you know, is that like a dispute over land or whatever.

Right.

And also, you know, one of these quote-unquote persons has consciousness

and an ability to think and feel and experience what you're doing to their body and the other person really doesn't.

Yeah.

But, you know, I think this is a good moment to point out, Adrian, as you say, that abortion abortion is an opportunity.

It'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.

So these old sexual morality arguments that were really driving the anti-abortion movement in the first half of the 20th century and in the 19th century.

It's not that they're not sincerely held by the anti-abortion movement anymore.

It's that they're not popular.

It's really hard to convince Americans that they should be having less sex.

People don't like to hear that, right?

Yeah.

What is popular at this moment is sort of the politics of the new left.

You 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?

You've got this model of a kind of righteous political engagement based on a subordinated, unjustly maligned class of persons, right?

And that is the model in which they remake the anti-abortion movement.

Well, 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.

I'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.

The fetus conveniently is just a projective surface onto which you can lay all your fucking hang-ups.

And they never get to say boo.

By the time they get to say boo, they are like, well, I honestly can't remember what that was like.

So I am not

really useful to you right now.

Right.

Don't worry.

We're going to get there.

But you're kind of touching a little bit on an argument that Lauren Berlant makes.

It's one of the sources I use for this episode that I hope we can link in the show notes.

One of her earlier books called The Queen of America goes to Washington City is the best writing I have encountered on sort of the idea of the fetus as the perfect citizen, right?

Somebody who has all these entitlements and never makes a claim on anybody else, except, of course, upon the person carrying it, right?

Yeah.

So in order to facilitate this project of turning the fetus from sort of an abstraction into a character, anti-abortion activists really avail themselves of technological innovations, right?

Right.

So in 1958, a paper is published demonstrating the ability to use ultrasound technology to create real-time images of a fetus in utero, right?

This gets widely adopted by obstetricians and gynecologists for prenatal medicine in the coming years.

And, you know, it's not that people didn't see fetuses or didn't know what they looked like before, right?

But it's that the fetus that you see when you have a miscarriage

looks very different than the fetus you see in an ultrasound, right?

Yeah, it was a thing that you could see in medical textbooks that have been drawn from, yeah, from miscarried fetuses or from medical research or whatever.

It wasn't, you were seeing the type of the fetus.

You weren't seeing your fetus.

You weren't seeing seeing it move.

Yeah.

And, you know, you weren't seeing it in real time.

Yeah.

What 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.

It's revealed, right?

This is a genuine medical miracle on the one hand.

And on the other, it's kind of an invasion of other people's vision into a woman's body, right?

Yeah.

And in a sense, an end to the kind kind of physical privacy that most of us have in our physical bodies, right?

That's no longer operative for a pregnant woman.

Somebody can see inside of you and they do, right?

And am I right to think that this technology is only increased in use?

I'm just thinking because I have never heard a story from my parents about what I was like.

in the womb or whatever.

I 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, a habit that she's kept up to the present day.

And it's very funny to think about that continuity.

But then again, like, I'm like, I don't think I've ever heard a story like that from my parents.

And 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.

Does that seem right?

Yeah, you know, the technology has really improved.

You look at these like quote-unquote ultrasound images from 1958.

I mean, it is an ultrasound image from 1958, right?

And they're like, this is a fetus's head.

And I'm like, it is.

Like, you can't, it's, um, it's, it's very dark.

It's very blurry.

It's very imprecise.

And now they're doing these weird things where, like, they do kind of 3D modeling of your kid.

Have you noticed this?

Yeah.

You know, like, the more precise the imagery has gotten, the more the imagery is used against women's rights, right?

So 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.

Oh.

and 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?

Well, to be fair, I think masturbating is the pinnacle of J.D.

Vance's personhood.

His orgasm over your rights, ladies, that begins before he's even born.

My cousin saw what would become her son doing this in the womb on an ultrasound.

And that's how she learned that she was having a boy.

And she goes, oh, well, does he ever stop doing that?

And the tech goes, yeah, in about 80 years.

Nice.

So this is something that is, you know, an intervention that is coming to really reshape the conception of pregnancy, right?

Especially this technology, it gets better, it gets cheaper, it gets used more and more.

And what basically everybody in the abortion debate says is a turning point is April 30th, 1965.

which is the day that an 18-week fetus photographed in color by a guy named Leonard Nelson appears on the cover of Life magazine, and there's a big photo spread inside.

So, Adrian, I put some of these images in the dock.

What do you notice about these images from Life magazine in 1965?

Yeah, so I'd never seen these before, although I feel like they've been in biology textbooks I've used.

Yeah, it's interesting.

On the one hand, there's one from six and a half weeks that I think sort of emphasizes how alien-looking this little fella is.

But then it starts really kind of like leaning into, oh, look what it already has.

There's a focus on the feet who do look like real feet.

There's a close-up of the eyes and the nose, which really looks like, you know, a baby to be.

And then there is a 16-week old, and that one looks really uncannily ready to pop out, essentially.

The other thing is it's clearly colorized.

I think.

Some of this might be the aging of the paper, but it does feel like it was colorized to kind of make it look a little bit more like a baby.

Does that sound right?

I mean, if I remember correctly, pictures taken of fetuses in the womb, they're quite translucent because you got to shoot a bunch of light through the body in order to see any of that stuff.

They've clearly dialed that down here to really make it look like it's kind of, you know, already a baby.

It's a big technical feat.

It's understood as one at the time.

And also, I just want to talk about like the framing of these photos.

In the photos of the fetus at 18 and then 28 weeks, the caption says a thumb to suck, a veil to wear, with with the notion that the baby is wearing a veil.

It is actually encased in an amniotic sack, right?

And that sort of speaks to what I want to point out about these images of fetuses that Life published in 1965, is that the pregnant woman is not at all visible in them.

Her body, her like 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?

So the fetus here is a protagonist.

Yeah.

And the woman carrying it is reduced to mere environment.

Yeah.

And we might ask about who tends to get a photo spread in Life magazine.

You know, this isn't people magazine, but it's still people.

Probably this or like, you know, Paul McCartney or whatever, right?

Like the idea is this is how you photograph a person.

And you're right.

Like the environment is like, it's not like it's dimmed out or it's out of focus or whatever.

It's literally like painted black.

Yeah, it looks like the fetus, it kind of looks like it's like extraterrestrial, like it's floating in outer space, right?

Yeah, did did Kubrick look at this for his final shots of 2001, A Space Odyssey?

Because it has that look.

It does look like the starchild.

Right.

The attention is exclusively.

on the fetus, right?

It 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, right?

There's only one quote-unquote person in these photos.

It's the fetus, right?

Man of the year, the fetus.

So as these images of the fetus enter the mainstream, they set off a wave of identification with and desire to advocate for the fetus and its interests, right?

And as you said, Adrian, the fetus is like a very convenient character to advocate for.

It can't do anything and so it can't do anything wrong.

It is maximally free of culpability and maximally devoid of any ability to advocate for itself, protect itself, exert power, or act on its own behalf, right?

It is both perfectly innocent and absolutely dependent on you, on your action, on your protection, right?

And so, this convenient protagonist is revealed by technology at this very particular historical moment.

This is 1965, right?

Conceptions of human rights have become a lot more widespread and much more legally and morally authoritative in the years following World War II.

And 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.

They still use that language all the time.

Yeah, 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.

If 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.

Glad we got that on the record, your holiness.

Well, 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, right?

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, right?

In constitutional terms and in moral terms.

So, we've got the civil rights movement, we've got the feminist movement, we've got the nascent gay movement.

And these were social developments that a lot of people in the anti-abortion world, on the whole, like really opposed.

Yeah.

But 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.

And 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.

Right.

The Voting Rights Act, Civil Rights Act, et cetera, et cetera.

Right.

It'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.

Yeah.

So, you know, it's interesting that they sort of evolve in how they're thinking about this.

So 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.

But that changes, right?

So 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?

Wow.

He was actually not talking about the Equal Protection Clause.

Yeah.

He was talking at that point in 1962 about the due process clause,

which was the initial argument, which is that abortion violates the due process rights of the fetus because they are aborted without a trial.

They actually argued this.

It'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.

Yeah.

In which case, a woman seeking an abortion, in fact, had to go through a review board.

There was, in fact, a pretty rigorous process.

They usually denied the claim.

So, like, you know, what process is due is another question, right?

Yeah.

And I mean, like, in 1962, due process was routinely denied to people for all kinds of reasons, right?

For like mental illness or for supposed debility or whatever they called it back then, right?

Like, it's important to note that this is not, oh, let's treat fetuses like everyone else.

It's let's treat fetuses like white men and unlike everyone else, basically.

Right.

Better than, yeah.

So, well, they sort of move on, right?

They 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, right?

So the fetus came to be spoken of as an oppressed class and opposing abortion, became a way to sort of advocate for the powerless and righteousness, right?

As we we said, a way for conservatives to be liberal.

Like conservatives on college campuses.

But like this also requires a kind of like maximalizing rhetoric, right?

So one anti-abortion advocate said that fetuses were, quote, the most voteless, voiceless, helpless, unrepresented, and unorganized minority in the land.

Maybe this is going too far, but.

I was thinking about the fact that conservatives have been saying like, it's so much easier to come out as gay than it is to come out as conservative.

And they've been saying that since like 1981.

And it's like, this is a movement to criminalize women's control over their own bodies, but it is also a way to mimic and almost travesty the language of civil rights.

To say, like, oh, it's the most unrepresented.

It's like, well, I can think of some others, my friend, you know, but it's saying, like, oh, these people sort of don't deserve this kind of thing because they're not as guiltless and blameless as these beautiful pink little fetuses.

Right.

It appropriates and then also sort of like vulgarizes.

Yeah.

So ultimately, these people do begin arguing that abortion is, in fact, the greatest oppression in America.

And fetuses have a greater claim to legal protection and public outrage than women, than black people, than any other oppressed or disadvantaged group, right?

So in arguments against abortion rights or against abortion ban exemptions, the fetus is entered into really like a kind of competitive vulnerability, right?

They're more helpless before the curette, as one anti-abortion activist said, than the rape mother had been in front of her rapist, right?

Wow.

That was one line.

You know, the fetus is facing persecution akin to chattel slavery and the holocaust.

Okay.

Note also that at this point, like this has changed a little bit, but not really.

almost everybody in the anti-abortion movement is a white Christian of some kind.

So there's a project of creating white innocence and righteousness at play here in the face of like the Holocaust, in the face of like the black civil rights movement's claims, right?

Yeah.

What is it that our ancestors did to African Americans compared to what we're letting people do to people's babies?

Right, right.

Suddenly I'm on the righteous side, right?

Yeah.

So in 1968, right, amid the dawn of the Black Power Movement, the anti-abortion law professor Robert Brin complained that the left was not embracing his cause, saying, no one cries out for fetal power.

Oh my God.

Picture the cutest little fist in the womb.

So, in the move to call a fetus a person or to use the fetus as a character, you see several like uses and purposes emerging, imaginatively and rhetorically, for abortion foes.

You see it creating this competing class of persons to contest women's claims to bodily autonomy and self-determination.

And it also turns abortion from a matter of sexual immorality that undermines, you know, gender hierarchy to one of oppression.

It creates a victim class for abortion.

Yeah.

And I also want to dwell on one other aspect of the fetus as a character, which is that it reminds the anti-abortion audience of themselves.

So Jennifer Holland talks about this in her excellent history of the anti-abortion movement in the West, Tiny You.

Great book.

The fetus is a blank slate.

It has no qualities.

It has no personality.

It has no history.

But it is also the thing that all of us once were.

Yeah.

Looking at the fetus means looking at something that reminds you of a version of yourself.

And it was a version of yourself that was helpless.

It was wholly dependent, right?

There's a frightening thing that can evoke self-pity, right?

You once had no power to stop somebody else from destroying you.

And it can also evoke a kind of defensive rage.

So, Adrian, I wanted to ask you to read this section of Andrew Jworkin's right-wing women, starting with to many men.

Yeah.

To many men, each aborted pregnancy is the killing of a son, and he's the son killed.

His mother would have killed him if she had choice.

These men have a peculiarly retroactive and abstract sense of murder.

If she had had a choice, I would not have been born, which is murder.

The male ego, which refuses to believe in its own death, now pushes backward before birth.

I was once a fertilized egg.

Therefore, to abort a fertilized egg is to kill me.

Women keep abortion secret because they are afraid of the hysteria of men confronted with what they regard as the specter of their own extinction.

If you had had your way, men say to feminists, my mother would have aborted me, killed me.

She like goes on to link anti-abortion sentiment to sexual violence, right?

Because these men are imagining themselves as fully themselves as an embryo with all of the masculine prerogatives to dominate and control women's bodies that that entails, right?

And she also says that women who participate in anti-abortion activism are kind of like atoning for or trying to transcend the status of perpetrator to pledge love and loyalty to men by demonstrating that they wouldn't do that, that they would protect their vulnerability.

And importantly, identification with the fetus and fetal personhood advocacy places these white anti-abortion activists in that victim class, right?

The fetus becomes a screen onto which the white Americans can project their own desires for innocence.

This is straight Lauren Burland.

So identification with the fetus was also encouraged in the 1970s by the proliferation of what I can only call like fetal kitsch.

Oh.

So Adrian, I'm going to show you this image in the dock.

This is from 1974.

A California anti-abortion activist started selling something called Precious Feet.

Do you want to tell me what you see?

I'm not even entirely sure.

I see a very angelic or cherubic-looking fetus inside a egg of some kind, a translucent egg.

Or like a crystal ball, maybe?

Yeah, or like a snow globe.

It's being held in some sort of translucent orb in the hands of a white person, a disembodied pair of white hands.

But there are two little feet sticking out.

And it says the exact size and shape of a 10-week unborn baby's feet.

So this is a lapel pin.

Oh, wait, the whole thing?

No, no, no.

You would just get

the feet.

Okay.

Just those little silver feet are a lapel pin.

They are wildly popular.

Oh, I see.

And the other thing is the packaging.

Yeah.

So this would have been, okay.

So it's like, it's a little pin stuck into this paper with a picture with this imagery.

of the fetus and the orb, a huge fetus, by the way.

Oh, yeah.

That's another tendency of the anti-abortion fetal imagery is it tends to really enlarge the the image of the fetus.

I know.

And to sort of like understate fetal age, right?

So they'll be like, this is a six-week old fetus and then show you this giant blown-up picture of what is in fact like a 20-week fetus.

Yeah.

And is the size of an adult rhinoceros?

Yeah.

Yeah.

And like, but 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.

It'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.

It grows up more and more around the notion of fetuses as this like oppressed and brutalized class of innocents.

Yeah.

Also in the mid-1970s, activists start holding funerals.

for like quote-unquote all the aborted babies.

They will like often symbolically bury a tiny white casket and use the occasion to erect a tombstone memorial to like the quote-unquote unborn.

Have you ever seen these?

They're at like a lot of cemeteries.

They're sometimes like outside of a church.

Holland compares them to like the tombs of the unknown soldier that popped up in Europe after World War I.

It's an empty or anonymous grave that stands in for what's really like a broader social rupture, right?

Yeah.

Yeah.

I mean, there's the story about Rick Santorum, far-right senator from the state of Pennsylvania in the 1990s and early 2000s, his wife miscarried and they kind of slept with the fetus for some time in their bed.

So like, yeah, the way they're treating this, to make visible this thing that they feel is too invisible when it's inside of a person.

I'm starting to pick up on the through line you're laying down here.

Yeah.

Even if, God forbid, a child died.

Would you sleep with that child's body?

That's

right.

It's strange.

I mean, this speaks to the quality of personhood attributed to the fetus, which is not normal personhood.

It's not my personhood or your personhood, right?

It's an elevated, quasi-divine status, right?

Yeah, yeah.

And this is continued with the silent scream in 1984.

Have you ever heard of this movie, Adrienne?

Yes, but only as like an anti-abortion curio.

Yeah, it's a popular movie.

It premiered on Jerry Falwell's TV show, but then it played five times within a month across basically all the major TV networks in 1984.

Oh, wow.

And it was distributed very, very widely in public and religious schools.

And it purports to show a filmed abortion with the fetus allegedly like resisting and screaming.

And it depicts the fetus as things that is not, right?

Which is like conscious, suffering, and scared.

And 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.

And that's just sort of like discarded, right?

Wow.

So, meanwhile, the legal movement, amid all these cultural developments, the legal movement for fetal personhood is also heating up.

I mean, I'm just kind of amazed that it's airing in public schools.

That's also kind of real wild.

You did not attend American public schools, Adrian.

The stories I could tell you would make your glasses, you know, pop off of your face and spin in circles.

But, you know, the cultural project to depict fetuses as persons that is like particularly oppressed persons is underway.

But meanwhile, there's this like kind of simultaneous legal project, right?

Yeah.

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.

And there's a big fight within the anti-abortion movement about how to phrase this legally, right?

This constitutional amendment meant to overturn Roe.

And at first, they're saying, okay, we could probably have a better chance of passing if we just say that this is a state's issue, you know, like send it back to the states, right?

Like states have the ability to ban abortion.

But the anti-choice movement doesn't want that.

They want to define life as beginning at conception and apply the 13th and 14th amendments to fetuses and to embryos right so 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 we're going to ban abortion nationwide we're going to say that the fetuses is a person we're going to make it sort of equivalent to murder and a 14th amendment violation to terminate a pregnancy right

uh it fails it fails immediately yeah yeah it gets no uptake whatsoever.

Meanwhile, the Human Life Bill, which is a legislative vehicle for the same project, it's perennially taken up by Congress.

I think it was like introduced yet again this year.

Various different wordings and different sponsors of this bill will pop up.

It never passes, right?

Right.

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?

Yeah, I remember this.

And they ultimately uphold all of these abortion restrictions that Missouri has placed into law.

But the law doesn't just have these effective restrictions.

It also has a preamble saying that life begins at conception and that fetuses and embryos are legal.

persons, right?

This is one of the first times that the question of fetal personhood has come up before the Supreme Court.

And the court says, you know, we can't rule on the constitutionality of that preamble

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.

And that Missouri law was part of a bigger trend.

So 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.

Right.

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 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.

And then they would get thrown out by the federal courts.

But that process required your Planned Parenthoods, your Center for Reproductive Rights to like hire a fancy lawyer and file a lawsuit and spend all that time and money getting it thrown out.

Right.

Yeah.

And this is something that I feel like you've told me about before, before, which is that it never ended up expanding abortion rights.

It always ended up sort of setting sharper and sharper limits on it.

Well, before, you know, Dobbs came along, basically, it was very clear what could and couldn't pay for it, who could and couldn't provide it, you know, all these restrictions you could place on it.

It was never about like, well, no, you can't do this.

What it did was it wasted a lot of time and money for feminists.

You're right, that it sort of curtailed the political possibilities and also like drained the resources that could otherwise have been spent expanding abortion access, right?

But for the anti-choice side, it creates a lot of judicial rulings articulating the limits of the abortion right and the exact nature of states' prerogatives in limiting abortion, right?

Yeah.

So, like, towards the end of the Roe era, pro-choice groups kind of stopped challenging some of these

out of fear of the rulings that they would get if they did, right?

So, Texas, for example, had a 20-week ban in effect from I think like 2014 before Dobbs, right?

And that was an unconstitutional pre-viability ban under Roe, right?

That just never challenged it because they sort of didn't dare, the pro-choice abortion rights groups sort of didn't dare to bring that before the federal courts in that age to be like, okay, well, they'll just overturn Roe if we try to bring this up, right?

There were also things like trap laws, these targeted restrictions on abortion providers, which were meant to drive abortion providers out of business by making their practices subject to these like medically needless, but like extremely onerous and expensive regulatory regimes, right?

Yeah, for instance, you had to have a practicing physician on site.

Texas had one about the width of the hallways.

Yeah, Louisiana eventually passed that law too.

You know, these are like things that make it very, very expensive to be a medical practice that performs abortion.

So, right?

Like Trump's banning of Planned Parenthood from Medicaid is sort of like a nationalized extension of the strategy.

It 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?

Yeah.

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.

And sometimes these were very straightforward, like legal personhood shall be recognized beginning at conception and lasting until natural death, like that kind of language.

But sometimes they were like a little wackier or weirder.

They'd sneak it into other stuff, right?

Yeah.

Yeah, it's often in stuff that has like nothing to do with abortion.

I remember this.

So 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.

So

one, you know, 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.

Another strategy was allowing parents to claim unborn fetuses as dependents for state tax returns.

Another was allowing fetuses to inherit or own property.

That's a big one.

And there were also like kind of goofy shit that got thrown in there.

Like

one bill was introduced that would have allowed pregnant women driving alone to use carpool lanes on state highways.

I remember this.

On the grounds that technically there was another quote-unquote person in the car, right?

These are like ways to sort of like sneak fetal personhood into the law.

Yeah, 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, it's 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 let women use carpool lanes just because they're pregnant, why shouldn't there be, right?

That's kind of the strategy here.

So, one big way that this gets pushed is through criminal feticide laws, which emerge in the 1980s.

And they make violent offenses against pregnant women into a kind of double offense or an offense with two victims, right?

This is a strategy that actually sometimes gets buy-in from what was like kind of left over of the organized liberal feminist movement.

So, like the remainder of groups like now, because it was pitched as a pro-woman or an anti-domestic violence provision.

Yeah.

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?

Which is 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.

And her fetus was still born as a result of the injuries she suffered right

but these laws these feticide 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 there are ways you could like sort of write this into the code that doesn't make the fetus what these feticide laws did, which is a separate individual victim all on their own, right?

And that is, you know, a person, right?

Yeah.

So they're trying to see these little acknowledgments of fetal personhood sort of all through the law, criminal stuff, tax codes, civil torts, which I'm guessing this was basically meaning you can't pull it back out.

Like it's in there.

It's sort of entangled with our legal system.

Were 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?

I 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.

You know, it's not a secret that they're gunning for this, right?

Yeah.

And another development that I think is kind of underrated in this story is Citizens United in 2010.

Do you want to like gloss that for us?

Yeah, it's the 5-4 decision in 2010 where the Supreme Court recognized corporate personhood with free speech rights, specifically.

It's a classic case that extends the definition of what a legal person is, right?

Not necessarily an individual human, right, with the capacity for consciousness.

It doesn't have to have the ability to act or reason, right?

It can feel a lot like the way religious conservatives describe fetuses.

Yeah.

So for one thing, Citizens United is a campaign finance law, right?

Yeah.

It opens the floodgates of corporate money and money with its origins concealed into political spending.

And anti-abortion groups lean very heavily into this, in part because it really like supercharges their own funding strategies, right?

They get so much more money, but also

because

Citizens United creates a concept of a person that is big and amorphous enough for fetuses to fit within it, right?

Yeah.

So where we are today is that Dobbs, which came down in June 2022, does not officially endorse fetal personhood.

It does not grant personhood rights to fetuses or embryos, even though it does refer throughout to unborn human beings, right?

A lot of people had sort of expected the court to go there.

Yeah.

I expected the court to go there.

Not even Clarence Thomas really touches it, right?

So any constitutional amendment is still dead in the water, right?

I 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.

But they might not really need it because personhood is de facto already in effect in a lot of jurisdictions, right?

Yeah.

And that I think brings us back to the question of like, well, what kind of person is the fetus in these legal regimes, right?

Because it's a different and more expansive kind of person.

than you or I have claims to be in front of the law, right?

Yeah.

Because for the fetus to be a person, it has to have extensive rights to enforce restrictions and compulsions on other people's conduct yeah yeah yeah and by extension this special personhood for the fetus necessitates a kind of abbreviated or like a bridged 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 Yeah, and it's just masturbating the entire time.

So fetal personhood is not, and it cannot be a matter of equality between women and embryos, right?

Which is like kind of a vulgar proposition to begin with.

It just like really demeans women.

It's a matter of domination.

It's a fiction that is used to create a legal mandate for women's submission to the fetus, in which the fetus is just a proxy for patriarchy.

Yeah.

And that's my spiel.

I've monopolized your afternoon.

Thank you for coming on this journey with me, Adrienne.

Thank you for taking me on this journey with you.

It's so terrifying, but at least you're here to explain to me and the listeners how we ended up in this bizarre place.

Because what I hadn't realized so far is like why personhood is so effective without ever getting sort of the premature of like, yeah, the Supreme Court or.

an amendment.

You're right to say that like that's unlikely to happen, but it already governs so many lives without having to.

And I think you've laid out beautifully how it has that uncanny power.

I don't know if it is unlikely to happen.

It's just not going to happen today, you know?

Yeah, this is more of a longer-term horizon, but you're right, we're already sort of living with it.

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