August 26, 2025 • 44 mins
Fetal personhood, in short, labels a pregnancy as a person. It is the idea that anything a person is legally entitled to, a fetus is, as well. Karen Thompson, Legal Director at Pregnancy Justice and Garin Marschall, co-founder of Patient Forward, sit down to talk with us about viability, state involvement in pregnancies, and criminalization.
Fetal personhood tracks alongside viability, which is the point in a pregnancy’s gestation in which the government recognizes personhood. Since Roe, and long before, viability limits became enshrined in law. Dobbs has now dropped all the guardrails. 41 states currently ban abortion at some point in pregnancy - including six states that have enshrined viability limits in their state constitutional amendments. The granting of state power over pregnant people at a certain point has profound implications for criminalization—including for behaviors during pregnancy, pregnancy outcomes, and threats to bodily autonomy and diminished rights of pregnant people.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jennie (00:03):
Welcome to rePROs Fight Back, a podcast on all things
related to sexual andreproductive health, rights, and
justice.
Hi rePROs, how's everybodydoing?
I'm your host, Jennie Wetter,and my pronouns are she/her.
So y'all, this week is a littlebit sad.
Last week was the last week forAmani, who is a fellow at
(00:25):
Population Institute.
You may remember her, she wason the podcast, it feels like
forever ago, talking about areport she co-authored called
Behind Closed Doors.
I'll make sure to include thatepisode in a show notes so that
you can listen to it because shewas wonderful on it along with
Maniza at PI.
The two of them are amazing,but this is about Amani.
(00:47):
She is leaving to join thePeace Corps and I am so excited
for her and her new adventureand I cannot wait to see what
she does.
Y'all, she is a star.
She's going to shine bright,but I'm very sad that we are
losing her shine at PI rightnow.
It was so wonderful to have herto talk about things related to
reproductive justice.
She was such a movie buff; Ialways had the best movie or TV
(01:12):
show suggestions from her.
She was just a real brightlight and I am very sad to see
her go even if I am so excitedfor her new adventure and to see
what she is going to do nextbecause, like I said, she is a
star and she will shine brightand whatever she does next will
be amazing.
So Amani, we're going to missyou.
(01:33):
I'm going to miss you, but Icannot wait to see what you do
next.
So best of luck and go changethe world.
I think the other thing I wantto talk about in my
introduction, again, there'sstill so much happening around
DC, but I don't want to focus onthat today.
Just my heart is heavy and justworrying about my community
(01:56):
because there has been a lot ofpresence in the part of DC where
I live.
So I'll just leave it at that.
The other thing I did want totalk about, though, was the
State Department recentlyreleased their annual human
rights reports, and theadministration really gutted
them, y'all.
According to NPR, they cut outabout two-thirds of the content.
(02:19):
We were expecting them to cutout reproductive rights and
LGBTQ rights, but they went evenfurther and just eliminated the
whole section on women'srights, including GBV, sexual
violence, reproductive rights,just that whole section.
So, like, women's rights, gone.
I think the other thing that isreally important to note is
(02:42):
they decided to only include oneexample of a violation in a
country.
So, it's really hard to get anidea of the scale, right?
So, if a country had oneviolation and another country
had 100 violations in that samearea, you wouldn't be able to
tell the difference becausethere would only be one example
shown in the reports.
(03:03):
So it's just, again, thisadministration chipping away at
human rights around the world.
And it's hard to understate theimportance of these human
rights reports.
We'll do an episode on it sothat we can talk about it more
in depth.
But just this is reallydevastating to see them get
gutted in this way because theyare a really important document,
(03:25):
not just in the U.S., butaround the world for companies,
for nonprofits.
So, many people use them whenthey're just hiding countries to
work with and just to have anidea of what is happening around
the world.
And so, this is a really hugeloss to not have the U.S.
doing the human rights reportsin the same way that they have
been done in the past.
Okay, with that, I don't wantto dwell on that too long
(03:49):
because it is really sad.
And this is, again, going to beanother one of those kind of
heavy episodes.
So, man, sorry, y'all.
We're going to have like abummer introduction and then a
bummer episode, but it's a greatconversation.
So please, please, please Stickaround.
We're going to talk about fetalpersonhood in this episode that
is the next in the series onabortion later in pregnancy.
(04:12):
This is the fifth of our sixepisodes on abortion later in
pregnancy that we are doing withPatient Forward.
Y'all, I can't believe we arealmost at the end of this
series.
I've had so much fun doing it,and I am so grateful to
everybody at Patient Forward forhelping us with this,
particularly Bonyen, who hasbeen amazing and helped me
organize everything and evenhelp with the outline for the
(04:34):
conversations that we're having.
She has just been a rock starand I am so grateful for all of
her time in helping put thistogether.
So Bonyen, thank you so much.
Everybody at Patient Forward,thank you so much.
Okay, so like I said, todaywe're going to talk about fetal
personhood and criminalizationand the viability line and why
all of this is so importantright now.
(04:55):
To do that, I have twowonderful guests with me.
First, we have Karen Thompsonwith Pregnancy Justice and then
we have Garin Marschall withPatient Forward.
And it's a wonderfulconversation.
So I hope you will enjoy it.
So here's my conversation withKaren and Garin.
Karen (05:17):
Thanks for having us.
Garin (05:19):
Hello.
Jennie (05:20):
So, before we get started, let's do a quick round
of introductions.
Let's go ladies first, Karen.
Karen (05:26):
I'm not a lady.
I would, I hope I'm anincorrigible broad.
I'm trying to bring back broad.
But hi, I'm Karen Thompson.
I am the legal director atPregnancy Justice.
I have been at PregnancyJustice for about a year and a
(05:46):
half and I'm Prior to that, Iwas a senior staff attorney at
the ACLU of New Jersey.
And prior to that, I was asenior staff attorney at the
Innocence Project.
Garin (05:54):
And I'm Garin Marschall.
I use he/him pronouns.
I'm the co-founder of PatientForward, which is a strategy and
advocacy organization fightingfor a future where all pregnant
people are met with support, notstigma or punishment.
We focus on policy andadvocacy, culture shift, and
supporting access around laterabortion.
Jennie (06:14):
So, today we're talking about something that might not
be something that peopleimmediately think of in our
series of abortion later inpregnancy.
We're going to talk about fetalpersonhood, which may feel to
some people like a totallyseparate thing.
But maybe we should start withlike what it is and why are we
talking about it today?
Karen (06:33):
Yeah, so I'll start and then I can turn it over to
Garin.
But fetal personhood is reallya simple idea.
And I think fetal personhood asa tagline is not great because
it sounds weedy and it soundslegal and it's just not.
What it is saying that a fetushas the same rights as you and
me, basically.
It just says that any pregnancyis actually a person.
(06:55):
So that anything that a personis entitled to legally is
something that that fetus isentitled to legally.
And when we have what basicallyis this kind of dance-off
between rights, between a fetusand the person who's carrying
that fetus, the person who'scarrying it is always going to
lose.
And we're going to talk aboutthis, I'm sure, later today, but
(07:17):
the rights do not stay in oneplace and the harms don't stay
in one place.
So, anything that is being doneto preserve the rights of the
fetus with the giant scarecrowthat you can't see, those are
going to be rights that have tocome from somewhere because
there's not a living andbreathing person.
(07:37):
And the somewhere is the personof the pregnant person's body.
So, it's a dangerous conceptjust as a basic matter, but as
we'll talk about later today, itcontinues to get bigger and
more dangerous and being used inthe most extreme situations
(07:58):
that are threatening the bodilyautonomy and rights of all
people who are pregnancy-able,and particularly women who are
being faced with centuries ofmisogyny that are piling on on
top of that.
Garin (08:10):
Yeah, and I'll just add, I think a lot of times there's
this conflation of how peoplefeel about pregnancy how
individuals feel aboutpregnancy, even how providers
feel about pregnancy, and adeveloping pregnancy even later
in pregnancy.
And then what we're talkingabout, which is the law and the
power of the state.
And so, obviously, everyone iswelcome to, in a way, like
(08:34):
humanize or understand apregnancy at different points.
But what we're talking about iswhat happens when that gets
codified into the law and theimpact that it has on people's
lives.
And then, and today we're goingto talk a little but about,
like, not just with regard toabortion.
I think that's the other thingis that there's this
misconception that giving rightsto fetuses is only a threat to
(08:59):
abortion and I think that issuch a big problem that that's
the only way we're thinkingabout it.
And so, you know, part of thework that Karen and I have been
doing over the last, I don'tknow, year or so in having some
of these conversations is aboutkind of, like, waving this flag
that's, like, hey, this is abouta lot more and there's a lot
more people being impacted by itand I think it is, you know, in
(09:23):
a way the the duty of thereproductive rights, health, and
justice movement to takeresponsibility and
accountability for, like, whatthe things we're putting into
the law mean for people whomaybe are not trying to get
abortion.
"Without fetal personhood,pregnancy criminalization could
not exist," and that is a quotefrom a great report from
(09:45):
Pregnancy Justice, but I dothink that it's important to
just make that link for people.
This is actually the ideathat's fueling people being put
in prison.
And we need to put a stop toit.
Jennie (09:58):
Yeah.
And I mean, I guess that startswith Roe, right?
That put the idea of viabilityinto the law and created this
line.
So, what is kind of thisrelationship between fetal
viability, gestational bans, andfetal personhood?
Karen (10:12):
I think it's important to note that ACOG, which is the
American College of Obstetricianand Gynecologists, are very
clear— it's you know on theirwebsite— that the idea of
viability is not one that theywant to ever be used outside of
a medical context and evenwithin a medical context it has
a very specific meaning which iswhat kind of medical treatment
(10:34):
you need to give to a fetus atparticular parts of times of
development because obviously ifa fetus is four months old
there's things that you cannotdo versus a fetus that's eight
to nine months old, right?
So they are creating their ownlines so they know what kind of
needles to have, what kind ofmedicines can be given.
(10:54):
They're very specific thingstied to that.
But when you remove it fromthat medical context and kind of
drop it in wholesale into alegal context, that is not what
is happening because lawyersaren't doctors, judges aren't
doctors, prosecutors aren'tdoctors.
And so you're talking about amedical treatment protocol
within the context of rights andthat they don't, it's at apples
(11:17):
to oranges.
They don't overlap.
They don't make sense whenthey're taken out of their
context.
And so it's also just trickybecause what has become so
normalized for us, like, oh,yeah, there's a viability.
There's a trimester frameworkin row.
That was great.
It's actually soft personhood.
It's just a very different wayof introducing the same harms.
(11:38):
And so, it's something thatwe're both trying very hard to
kind of change people's thinkingaround.
Garin (11:43):
I do want to flag something there, which is
what I think is a bit of a misconception and one that frankly I think all of us in some way have contributed to which is (11:47):
the idea of viability started with Roe. And the reality is, it did start before that. But it really started there in terms of abortion maybe, in terms of a constitutional right to abortion. But the concept of viability being used in law certainly pre-dated Roe, which is certainly part of the problem here. But even the idea of fetal personhood, of state
(12:18):
protections for a fetus, startedlong ago in some ways.
And so I think that that'ssomething that we just want to
flag, like where the specificconcept of viability is really,
you know, it's a misuse of amedical concept.
It doesn't really mean anythingspecifically.
It's kind of like when a fetuscould potentially survive
(12:40):
outside of the pregnant person'sbody.
Well, you know, we don'treally, a doctor can't really
tell you when something isviable in that way.
Karen (12:48):
And I think the other piece of it— see here we go
because this could go on and onbecause there's so many ways
that it impacts us that we don'tnecessarily see, you know, in
the kind of like bright light—but the thing that I think is
really interesting is readingsome of the decisions around Roe
and what judges were saying atthe time about creating this
framework.
And one of the things theybasically said were like: well,
(13:11):
if we give them those kinds ofrights, they have to have a
limit right so it's not evenplaying a role in in like
ostensible, like health of thechild, interests of the child,
it literally is just like, youcan't have too many rights
'cause then you'll be, you willbe uncontrollable.
And I think, you know, that'skind of one of the foundations
of why fetal personhood andviability lines are being used
(13:35):
because it's really aboutcontrolling bodies.
It's about giving excuses tocontrol and, you know, getting
rid of these is also creatingautonomy for everybody.
So, it's a really seriousrising tide moment.
Jennie (13:51):
And I guess one of the things that this made me think
of as you're talking aboutrights, and just because it
happened last week, this isunrelated to our conversation
mostly, but the State Departmentreleased their annual human
rights reports, and they got ridof the entire section on women,
including reproductive rightsand gender-based violence and
all the things.
But basically, women's rights,full stop, is gone.
(14:12):
And again, they don't want usto have too many rights.
Karen (14:17):
And what better way to do it?
I mean, aside from we've alsobeen told that not voting, but
what other way to do it than tocriminalize people's bodies?
And also to have the governmentsay, we have control of the
product of your womb.
Garin (14:34):
And I do think that Roe in a way, being such a big
decision, did have these echoesacross time and across the law
with regard to entrenching thisidea and this legal standard.
And so, to your point, to yourquestion, yes, this in a way—
(14:55):
with regard to abortion and itspervasiveness and use of the
law— was really supercharged bythe Roe decision.
But if we look at the Roedecision, it's interesting.
When you look at the...
for instance, if you listen tosome of the oral arguments...
there's a lot of discussion inthose oral arguments about fetal
personhood, about does thismean that, like: are you asking
(15:18):
us to recognize the rights ofthe fetus?
And, like, what would thatmean?
And so, what we see in the Roedecision is actually, like, as
far as I'm concerned, a bit of apunt.
They kind of were like, no, itdoesn't have rights, a fetus
doesn't have rights, but we'regoing to do this viability thing
that kind of creates this ideaof fetal personhood within the
(15:41):
context of abortion.
And they hoped, I think, maybeeven they believed that it would
stay there.
But as Karen was pointing out,like, these legal concepts don't
stay in their tight littlepackage.
They're, you know, they're likea fungus.
They grow wide and then they'rereally hard to get rid of.
Karen (15:59):
And we were, you know, Garin and I were with some
fellow advocates, like a smallgroup recently, like talking
about these things.
And one of the first questionswas like: okay, do we really
care about the law anymore?
Is the law really a thing?
Is it a tool?
Does it do anybody any...
like what are we doing here?
Because it doesn't look likethe law really matters anymore.
And you know, I was just likeyes, it does matter, it does
(16:22):
matter and I think, you know, Ithink we got back to that place
of it does matter because ofexactly what Garin said like:
it's ours, too, and even thoughit was invented by a particular
group of people to do veryparticular groups of things, in
the words of Octavia Butler, youknow, "all that we touch we
change and all that we changechanges ourselves." And so, the
(16:42):
things change whether peoplewant it or not.
And so, we can use the law tomake the change.
That's all that has ever beendone when it comes to getting
more and more people theirrights.
And because we are in thismoment of lawless law, what
history has shown us from the'60s and before is that when you
(17:02):
break a law that is lawless,you are actually creating a law
that is righteous.
And so, I think that we have amoment right now to just refuse
I mean this is getting it's sadthat this is getting to be a
cliche but we can refuse tocomply with these things that
are not actually legallylegitimate right.
(17:23):
And making an abortion ahomicide that is a death
eligible policy, while out ofthe other side of your mouth
talking about the interests ofthe child; that is not that is
not logical or right or good.
And I think, as Garin said, weneed to start saying that with
our whole chest.
Garin (17:43):
Yeah.
And I do think the project hereis, or, you know, the strategy
should maybe be not to, like,let them do it.
In other words, we can simplyassert and recognize rights that
we do actually have, you know,that are pervasive throughout
our legal system and ourConstitution, and not leave it
(18:04):
up to anti-abortion advocates orthe far right to interpret the
Constitution in a way thatserves them.
We can simply disagree with thefact that people don't have
rights.
And I think that, like, thereis this, like, shyness around
doing that.
And it's like, you know, we getto interpret this document too.
(18:24):
And maybe, like, the best partof the American project, if
there's any good part left, isthis idea of a shared debate and
shared ownership over meaning.
And I think that we just needto be a bit bolder about
deciding what these things mean.
Jennie (18:40):
I'm so glad you raised that because I feel like a lot
of what we see even sometimesfrom people who are supposedly
pro-abortion is there's thiscompromise spot we can we can
compromise and the anti-abortionpeople and the pro-abortion
people can all agree on this onething and and you know the the
(19:01):
voices and talking heads outthere like this is the one this
is it we can draw the line righthere.
And if there's anything I hopepeople have learned from this,
it is that that is not true.
But Karen, do you have anythingelse you would like to say
around that area?
Karen (19:16):
No, I mean, you can't compromise with a boot in your
face.
Right.
And there's no way that youcan, like, you have to.
Yes, you can compromise aboutlike the color of a dish towel.
And are we or are we doing likechicken or spinach for dinner?
Like everything else, there'sno room for compromise.
(19:37):
And I think, you know, that's areal question that I think that
we've movement has to askitself, are we aiming at
compromise?
Are we aiming at status quo?
Or are we going to be aimingtogether to create the world
that we want to be for everybodythat is safe, that is healthy,
and that is keeping us allprotected and having dominion
(20:01):
over our bodies?
And I think that is what ourgoals should be.
And we need to pull our sightsto that.
Garin (20:07):
And with regard to compliance, I just want to flag
that viability lines beingwritten into abortion policies
into state constitutions is tome a form of compliance it's
complying with a decision thatwas made in the '70s by you
know, a group of men beforewomen even had the right to use
(20:32):
credit cards.
So it's like, we simply don'tneed to comply with this
outdated idea of how theserights, you know, could look and
how they're exercised.
And so I think when we seepeople in a way like retreat to
this row framework, to thisviability framework, because
it's like a comfortable blanketwe can wrap ourselves in, it's
(20:53):
because we're failing to imaginesomething different.
And so, I think that we can, asadvocates, you know, in some
cases, I think if we're thinkingabout lawmakers and leaders, we
can actually lead thatconversation; imagine something
different and put differentthings in place.
Karen (21:09):
The absurdities that are showing up in these guys, you
know, the idea, like, we have tocompromise.
But meanwhile, like, there arepeople who are introducing laws
that are absurd.
So if, you know, we're okaywith advancing this idea that
abortion should be a deatheligible offense.
And if we are okay with sayingthat a fetus should have a
(21:33):
medical marijuana card, then Idon't understand how saying,
listen, "there should be noviability line," feels like a
stretch.
You know what I mean?
The one thing that the antiside has is like the complete
and utter lack of shame, right?
So I'm not, and what I am notgoing to be shamed by are people
(21:56):
who are cutting off all thefunding for kids to get the
health that they need and forpregnant people to get the
health that they care that theyneed to have a healthy
pregnancy, should they so chooseto have that health care or if
they need to have access to it.
Having a world where they canthey don't live in a maternity
desert, right, if you care aboutthose things, then those things
(22:19):
should be happening, but thething is that's not happening
that's being taken away.
And at the same time we'rebeing told all of this best
interests of the child.
I'm not going to be shamed bythose people.
And we shouldn't be shamedabout having these
conversations.
Garin (22:32):
We also think there's this like really arbitrary
version of compromise that we'vebought into somehow.
And it reminds me of this Veepepisode where they're trying to
like figure out what theirpolicy on abortion is.
And Dan is just looking at aboard and yelling, pick a
number.
And that's literally where weare.
He's just like, pick a number,just pick a number.
(22:53):
And so like this idea that thecorrect compromise is somewhere
between a total abortion ban andno abortion ban whatsoever and
is just like some number ofweeks or some arbitrary idea
like viability is uncreative atbest.
And so, I think that we can,first of all, I understand, I
(23:14):
think there's a lot of peoplethat are like: this all sounds
great but, you know, when weget into a situation where we're
trying to get votes orwhatever, we have to compromise.
And you know my first questionis, well, do you?
Like, have you tried not?
I don't know.
But the other thing is that Ithink that we haven't led a
conversation that would allowpeople to imagine something
(23:36):
different.
And so, until we do that, weare simply pre-complying,
pre-compromising, compromisingbefore we're even in the room at
the negotiating table.
Jennie (23:46):
What a great preview for next week's episode.
We're going to be talking aboutthe implications of the "One
Beautiful Big Bill," or whateverthe terrible bill was.
But let's turn back to thisweek's and: how have we seen the
implications of viabilitylimits on pregnant people since
Dobbs?
You know, we talked about howit's not just about abortion
(24:08):
where we're seeing the impacts.
What else are we seeing rightnow?
Karen (24:12):
What Dobbs did is it just dropped all of the guardrails.
So, all of the places that hadthings teed up that would be
made worse or kind of aggregatedby viability lines then became
aggregated by viability lines.
So suddenly the language wasabout, you can't, "unborn
child," this and that, no accessto care after six weeks, right?
(24:39):
Like there's just, I think thelanguage around things changed
in the bans that made things abit tricky.
But I mean, we said this at thebeginning and I want to say it
again.
I think that we have toremember that the biggest kind
of problem, the those waves inthe pool of the, you know, after
(25:00):
you throw the stone, they'renot really in the abortion space
necessarily.
And so, okay.
Garin (25:07):
I also just want to flag, there are certainly
implications in the abortionspace, but we feel in a lot of
ways that those arewell-trodden, like more people
are traveling, more people arebeing denied care.
That is in fact really bad.
And there's something that'sbeen happening well before
Dobbs, which is that these linesand this, you know, granting of
(25:32):
the state power over pregnantpeople once their pregnancy
reaches a certain point has hadprofound implications for people
throughout the country and forthe last, I don't know, 50 years
or so.
And we can talk about some ofthose ways.
And I think we'll get intomaybe some specific examples if
(25:52):
that's helpful.
Jennie (25:53):
Let's talk about that.
Garin (25:54):
First of all, I'll just, I'll like cover some kind of
categories, right?
So, we've talked about abortionbans.
There's also been, there arethese instances where behavior
while pregnant can be punishedbecause there's this theory that
it endangers the fetus.
And so, therefore, thatbehavior can be investigated and
(26:14):
prosecuted.
There are situations wherewe're seeing pregnancy outcomes
being investigated.
So, if pregnancy simply doesn'tend in a healthy birth, a
healthy baby then the statetheorizes that maybe something
went wrong and that there isgrounds for some sort of
investigation there.
And then there's just like morepervasive threats to bodily
(26:38):
autonomy and the diminishedrights of pregnant people.
Karen (26:41):
But also this idea, I think that prosecutors, so the
issues in the spaces that Garinjust mentioned, but I think what
is related to that is thatprosecutors who are prosecuting
these cases based on this ideaof viability and based on these
areas of harm that can be doneto a fetus, they are not given a
(27:03):
high bar to kind of get over tobring these cases.
So because it's just aboutlike, oh, anything that could
possibly be in any waydetrimental to a fetus, that
gets real elastic reallyquickly.
And so, instead of having tosay, okay, then there is a child
(27:24):
who was born who was harmed inways A, B, and C, all the
prosecutor has to say is thatchild was exposed and we think
drugs bad.
So, because drugs bad andbecause fetus exposed, that is a
felony child abuse standard, orbecause you didn't behave in
particular ways, or have as manydoctor's appointments, or you
(27:44):
researched abortion while youwere pregnant and then you had a
stillbirth, that means that youdidn't behave in a certain way
that led to that stillbirth.
Now we're going to charge youwith murder, right?
So, it never stays still.
And then it's really lowhanging fruit, legally speaking.
Garin (27:59):
And Pregnancy Justice has done a lot of work to document
a lot of these cases, bothbefore Dobbs and after.
It's hard to compare apples toapples there with regard to
numbers just because of the waythe research was done.
But what we what we do know isthat there are a lot of these
cases and there's a lot of casesin a few specific states, South
Carolina, Alabama, Oklahoma,for instance.
(28:22):
And we can we can see thosecases coming from
interpretations, from courtdecisions generally, which
interpret this sort ofexpanding, creeping idea of
fetal personhood at some point.
And a lot of times you see thisslippery slope in these
(28:44):
decisions where they say, well,we've recognized, in a way, the
rights of a fetus in thisinstance, and so it just stands
to reason that we wouldrecognize them here.
And then we've recognized themhere.
And so it just stands to reasonthat we would recognize them in
the case of child endangermentfor substance use.
And so you see, it is aslippery slope and it's having
(29:07):
real implications for people,like hundreds and hundreds of
people in Alabama, for instance.
Karen (29:14):
But let's also be clear.
I really want to, you know, ifthere's one thing people take
away from today, while we seethe most cases in certain
states, it is hardly limited tored states.
This is, like, a nationalproblem.
Jennie (29:26):
Absolutely.
Karen (29:27):
And so I think we also just have to be, again, be
mindful of the way that we'vebeen normalized to this idea
that everything that the persondoes could be interpreted as a
harm to a fetus.
And we've been, you know,there's Andrea Ritchie, the
amazing abolitionist who workson prisons and human rights, you
(29:48):
know, has this great line that,"criminalization is the way
that fascism manufacturesconsent." And I think think that
that's exactly what we seehere.
And it's just this idea thatanything that you do that could
harm a fetus, like when you say,like when you push that really
with all your might, then wejust get into this space where
(30:12):
you can't, you can't come backfrom that.
And so you start to say, okay,you know, it's okay if you
arrest somebody for harmingsomeone who's pregnant for
reason A, B, and C, but thenwhat that turns into is that
someone gets arrested whenthey're shot and they're
pregnant for harming theirchild.
It doesn't stay logical.
(30:32):
It becomes just the basis toget illogical.
And so, yeah, I kind of wentoff on a tangent there.
Garin (30:40):
But like, I think we can also like take some specific
cases.
Like if we, I think maybe someor many listeners may be
familiar with the Brittany Wattscase, which happened in Ohio.
And, you know, Brittany Wattswas in this situation where she
was seeking medical care, goingthrough a medical event with
regard to her pregnancy, andfrankly didn't get great care at
(31:02):
the hospital, was ultimatelysent away, and ultimately
experienced a miscarriage athome.
Returned to the hospital forcare after that, and was
subsequently reported to thepolice by her nurse in that
situation.
And that's a very typical thingwith regard to the sites of
(31:23):
criminalization are oftenhospitals now and care
providers.
And there's great work beingdone on that with, like, the
Beyond Do No Harm Network andfolks like that.
But I think that in this case,the interesting thing is that
Ohio had already two definitionsof viability in their law.
So, one was in an abortion law,an abortion ban and viability
(31:48):
that was on the books, but alsoin their criminal code, which
said that (31:53):
a fetus that had reached the stage of viability,
not that itself was viable, butit had reached the stage of
viability, was a person underthe criminal code in Ohio.
And so that fueled thisinvestigation.
And basically the real questionin Brittany Watts' case was
initially not, was there a crimecommitted?
(32:13):
It's was the fetus viable ornot?
And once that case, there wasthe possibility of that having
happened, And having reachedthat stage, that case was
allowed to proceed.
She was investigated, etc., andduring that prosecution, that
question of viability was reallythe main question.
And the judge even noted thatthere was at the time a ballot
(32:38):
measure being advanced in thestate regarding abortion.
And he pointed to that ballotmeasure and said, this is the
question the state is currentlyconsidering.
This question of viability andwhat that means and basically
alluding to personhood here.
And so while Brittany Wattsultimately was not put in jail
or actually, I think, fullycriminalized beyond her having
(33:02):
to go through this trial, thatreally came down to the
viability, not challenging theidea that it was a person under
the law had it been viable.
And I think that's the realcase is, you know, not only was
her life destroyed by this wholething in a way, but people are
then subject to this question ofthe state and when it's when
it's compelling interest takesover and overrides her rights
(33:25):
and ability to go through reallya terrible circumstance for
her, I think.
And there's a similar case inGeorgia, just to, you know,
underscore the point, whichsomeone was unconscious and
bleeding in their apartment, andshe had placed the fetal
remains in a dumpster, and thepolice investigated, and when
they recovered the remains, shewas charged with concealing the
(33:46):
death of another person andabandoning a dead body, and
those charges were drawn, butonly because the autopsy
determined that she'd had anatural miscarriage at around 19
weeks and the fetus wasnon-viable.
But Georgia has the Life Act,which went into effect after
Dobbs, even though it was passedin 2019.
And that's all about fullrecognition to an unborn child.
(34:10):
And so, if that miscarriagehadn't been natural, those
charges would have stuck.
And she may have actually beenliable for something even more
serious, like, again, likepotentially a murder charge.
Garin (34:22):
But I think, again, it's like it's not I think a lot of
people saw that as criminalizingmiscarriage.
And the important thing is thatit's, it rested on this idea of
personhood.
So it's like, it'scriminalizing something that was
done to a person as far as thestate's concerned.
Jennie (34:39):
I mean, it just shows you hear these stories of people
experiencing a miscarriage andinstead of getting support and
help, they're being prosecuted.
Garin (34:46):
And then I think it doesn't stop with these cases.
There's also cases where, wheresomeone's fundamental rights
are being overridden becausethey are have a pregnancy or
because the pregnancy isadvanced to a certain point.
And so, there's recently a casein Georgia with a woman named
Adriana Smith, who was pregnantand admitted to the hospital
(35:08):
because of headaches, givenmedication, sent home, but then
her condition worsened.
And she was eventuallypronounced brain dead.
But because of that Georgialaw, she was kept alive.
And the idea or the hospitalhad some unclarity, I think,
with regard to like what the lawis and the way that they
(35:29):
interpreted it.
They felt the need to keep herbody alive to gestate that
pregnancy until, you know,something had changed
effectively.
And that underscores this.
this issue with advanceddirectives, where a lot of
states, I don't know the exactnumber off the top of my head,
(35:50):
maybe Karen does, but invalidateadvanced directives for
pregnant people, which says thatthe state can override what you
want to happen with your bodybecause you're pregnant.
And so again, why is that?
What is the logic thatunderscores that?
And again, we feel it's thislogic of there being something
(36:14):
that is deserving of stateprotection such that a person's
rights can be overridden.
Karen (36:19):
I think it's a little tricky because they're not
classically a fetal personhoodissue, but what I do think they
represent is the extent to whichthe autonomy vanishes and
there's like a vanishing point,do you know what I mean?
So, I mean 10 states invalidatea pregnant person's advanced
(36:42):
directives regardless of thelikelihood of fetal survival so
if you're pregnant and you havea will that can go completely
out the door, period.
Like, in 10 states.
And 19, they also go out thedoor but it least there has to
be a potential for fetalsurvival not viability but
(37:04):
actual survival with continuedlife sustaining treatment.
And then three states actuallyallow someone's will to be
honored if they're pregnant, ifthey clearly know that they want
it to be honored so at leastthere there's that.
But yeah, I think it'simportant to note this because
we have to understand, like,yeah the extremities, like: what
(37:27):
are the poles of theconversation?
And I think keeping someone whois brain dead alive to gestate
a nine-week-old fetus, which ishow old Adriana Smith's fetus
was, tells us what people arewilling and able and wanting to
do.
Garin (37:42):
And then there's other cases that we've seen where, you
know, someone refuses medicalcare, either because of their
religious beliefs or something,and the state is asked to come
in and effectively allow thehospital to force that that
person to submit to a cesareansection or a blood transfusion.
(38:03):
And again, those rest on thisidea that the state can override
your fundamental rights.
Normally, you have the right todeny medical care and the state
can override that on behalf ofthe pregnancy.
Jennie (38:16):
Y'all, this is so much.
And I'm sure the audience ismaybe also feeling a little
overwhelmed.
So let's maybe turn to, Ialways like to end with giving
the audience actions they cantake.
So, how can they get involvedin this?
What can the audience do to getengaged?
Karen (38:33):
I think that there are a couple of ways.
I mean, as a policy matter,which is still real and still
true, no matter how it feels,you have electeds who are
responsible and liable to you.
You put them in office.
You pay their salaries.
They need to do what you tellthem to do.
And so if you say, listen, weneed you to not roll over if
(38:56):
there is an executive order fromthis administration saying that
fetuses have 14th Amendmentprotections or making fetal
personhood the law of the land,the states still have power and
the states can do the work thatthe states need to do to
preserve people's rights.
And so, we need to make surethat our voices are still being
heard, that they're still beingraised, that we're submitting
(39:18):
comments to bills that are beingpassed, which every person has
the right to do and the abilityto do, that we understand that
this is an interlocked fight,that this is not a struggle that
is just about abortion, that itimplicates the rights of folks
who are incarcerated, disabledfolks.
Obviously, from Skrmetti, itvery much implicates the rights
(39:43):
of trans kids to be able to getgender-affirming care.
It really touches on all thethings that affect wide swaths
of society.
So, if you care about Blackmaternal health, if you care
care about making sure thateveryone has access to the
caregivers and the care thatthey need, then this is the
(40:05):
issue for you.
And you need to make peopleresponsible for ensuring that
our rights remain intact.
Garin (40:12):
And that includes, I think, you know, people that we
maybe sometimes look to to sortof fight the fights.
So, I think sometimes, youknow, we vote for the thing in
front of us.
And I think it's important foreveryone to take a moment to to
read the thing in front of youand see if you support it.
And if you need help makingyour way through it, there's a
(40:34):
lot of us out here who are happyto talk it through.
We also created a tool, apatient forward created a tool
called Unpunished Pregnancy.
It's atunpunishedpregnancy.com, but you
can go through that andevaluate policies that you're
being asked to support or thatyou maybe aren't sure whether
they're good or not.
Fetal personhood is definitelyone of the main things in there
that we're looking at, but Ithink it's okay to ask for
(40:56):
something better.
I think that's really where Iwant people to get is you don't
have to actually just like takethe thing that you're given,
which whether that's someoneelse's interpretation of your
rights or a policy that maybeisn't really providing the
liberation that people aresaying it does.
And I think we have to keepasking for more and keep
(41:17):
fighting for more.
Karen (41:18):
And it does feel like a lot.
I mean, obviously, like we'reboth in it.
So we see sometimes that itfeels like a wall.
But the other thing is, When weactually get in there, when we
show up in courtrooms, when wesay, hey, hey, hey, hold up,
that is not what this law says.
This is not what you can do.
(41:38):
This is not actually a crime.
There are carve-outs that don'tallow you to behave this way.
We win.
People understand.
Prosecutors drop charges.
You might have remembered a fewweeks back, West Virginia AG
was like, we maybe should starthaving people report their
miscarriages to cops.
And the noise that greeted thatwas so loud that other AGs in
(42:05):
the state were like, we don'tknow him.
So I think that's what we cando.
That's what we can do.
And we do use our voices.
And so it feels a lot.
And there's a reason for that.
It's to make people feel likethey don't have any autonomy to
fight back and to makedecisions.
But we do.
And so the only way to getthere is to raise your voice.
Jennie (42:27):
Well, Garin, Karen, it was lovely to have both of you
on today.
Thank you so much for beinghere.
Karen (42:33):
Thanks for having us.
I appreciate it.
Thank you.
Jennie (42:36):
Okay, y'all.
I hope you enjoyed myconversation with Karen and
Garin.
Like I said, it is such animportant conversation in this
moment with criminalization.
Really, you're hearing so manymore stories breaking through
and it is just really importantthat we are standing for what we
believe and not letting theseviability lines cause further
problems beyond abortion, butinto other areas where we are
(42:57):
seeing criminalization.
criminalization for pregnantpeople.
With that, I hope you enjoyedthe conversation and I will see
everybody next week.
[music outro] If you have anyquestions, comments, or topics
you would like us to cover,always feel free to shoot me an
email.
You can reach me at jennie,J-E-N-N-I-E, at
reprosfightback.com, or you canfind us on social media.
(43:19):
We're at Repros Fight Back onFacebook and Twitter, or
@ReprosFB on Instagram.
If you love our podcast andwant to make sure more people
find it,take the time to rate and review us on your favorite podcast platform. Or if you want to make sure to support the podcast, you can also donate on our website at reprosfightback.com.
Thanks all!
Welcome to rePROs Fight Back, a podcast on all things
related to sexual andreproductive health, rights, and
justice.
Hi rePROs, how's everybodydoing?
I'm your host, Jennie Wetter,and my pronouns are she/her.
So y'all, this week is a littlebit sad.
Last week was the last week forAmani, who is a fellow at
(00:25):
Population Institute.
You may remember her, she wason the podcast, it feels like
forever ago, talking about areport she co-authored called
Behind Closed Doors.
I'll make sure to include thatepisode in a show notes so that
you can listen to it because shewas wonderful on it along with
Maniza at PI.
The two of them are amazing,but this is about Amani.
(00:47):
She is leaving to join thePeace Corps and I am so excited
for her and her new adventureand I cannot wait to see what
she does.
Y'all, she is a star.
She's going to shine bright,but I'm very sad that we are
losing her shine at PI rightnow.
It was so wonderful to have herto talk about things related to
reproductive justice.
She was such a movie buff; Ialways had the best movie or TV
(01:12):
show suggestions from her.
She was just a real brightlight and I am very sad to see
her go even if I am so excitedfor her new adventure and to see
what she is going to do nextbecause, like I said, she is a
star and she will shine brightand whatever she does next will
be amazing.
So Amani, we're going to missyou.
(01:33):
I'm going to miss you, but Icannot wait to see what you do
next.
So best of luck and go changethe world.
I think the other thing I wantto talk about in my
introduction, again, there'sstill so much happening around
DC, but I don't want to focus onthat today.
Just my heart is heavy and justworrying about my community
(01:56):
because there has been a lot ofpresence in the part of DC where
I live.
So I'll just leave it at that.
The other thing I did want totalk about, though, was the
State Department recentlyreleased their annual human
rights reports, and theadministration really gutted
them, y'all.
According to NPR, they cut outabout two-thirds of the content.
(02:19):
We were expecting them to cutout reproductive rights and
LGBTQ rights, but they went evenfurther and just eliminated the
whole section on women'srights, including GBV, sexual
violence, reproductive rights,just that whole section.
So, like, women's rights, gone.
I think the other thing that isreally important to note is
(02:42):
they decided to only include oneexample of a violation in a
country.
So, it's really hard to get anidea of the scale, right?
So, if a country had oneviolation and another country
had 100 violations in that samearea, you wouldn't be able to
tell the difference becausethere would only be one example
shown in the reports.
(03:03):
So it's just, again, thisadministration chipping away at
human rights around the world.
And it's hard to understate theimportance of these human
rights reports.
We'll do an episode on it sothat we can talk about it more
in depth.
But just this is reallydevastating to see them get
gutted in this way because theyare a really important document,
(03:25):
not just in the U.S., butaround the world for companies,
for nonprofits.
So, many people use them whenthey're just hiding countries to
work with and just to have anidea of what is happening around
the world.
And so, this is a really hugeloss to not have the U.S.
doing the human rights reportsin the same way that they have
been done in the past.
Okay, with that, I don't wantto dwell on that too long
(03:49):
because it is really sad.
And this is, again, going to beanother one of those kind of
heavy episodes.
So, man, sorry, y'all.
We're going to have like abummer introduction and then a
bummer episode, but it's a greatconversation.
So please, please, please Stickaround.
We're going to talk about fetalpersonhood in this episode that
is the next in the series onabortion later in pregnancy.
(04:12):
This is the fifth of our sixepisodes on abortion later in
pregnancy that we are doing withPatient Forward.
Y'all, I can't believe we arealmost at the end of this
series.
I've had so much fun doing it,and I am so grateful to
everybody at Patient Forward forhelping us with this,
particularly Bonyen, who hasbeen amazing and helped me
organize everything and evenhelp with the outline for the
(04:34):
conversations that we're having.
She has just been a rock starand I am so grateful for all of
her time in helping put thistogether.
So Bonyen, thank you so much.
Everybody at Patient Forward,thank you so much.
Okay, so like I said, todaywe're going to talk about fetal
personhood and criminalizationand the viability line and why
all of this is so importantright now.
(04:55):
To do that, I have twowonderful guests with me.
First, we have Karen Thompsonwith Pregnancy Justice and then
we have Garin Marschall withPatient Forward.
And it's a wonderfulconversation.
So I hope you will enjoy it.
So here's my conversation withKaren and Garin.
Karen (05:17):
Thanks for having us.
Garin (05:19):
Hello.
Jennie (05:20):
So, before we get started, let's do a quick round
of introductions.
Let's go ladies first, Karen.
Karen (05:26):
I'm not a lady.
I would, I hope I'm anincorrigible broad.
I'm trying to bring back broad.
But hi, I'm Karen Thompson.
I am the legal director atPregnancy Justice.
I have been at PregnancyJustice for about a year and a
(05:46):
half and I'm Prior to that, Iwas a senior staff attorney at
the ACLU of New Jersey.
And prior to that, I was asenior staff attorney at the
Innocence Project.
Garin (05:54):
And I'm Garin Marschall.
I use he/him pronouns.
I'm the co-founder of PatientForward, which is a strategy and
advocacy organization fightingfor a future where all pregnant
people are met with support, notstigma or punishment.
We focus on policy andadvocacy, culture shift, and
supporting access around laterabortion.
Jennie (06:14):
So, today we're talking about something that might not
be something that peopleimmediately think of in our
series of abortion later inpregnancy.
We're going to talk about fetalpersonhood, which may feel to
some people like a totallyseparate thing.
But maybe we should start withlike what it is and why are we
talking about it today?
Karen (06:33):
Yeah, so I'll start and then I can turn it over to
Garin.
But fetal personhood is reallya simple idea.
And I think fetal personhood asa tagline is not great because
it sounds weedy and it soundslegal and it's just not.
What it is saying that a fetushas the same rights as you and
me, basically.
It just says that any pregnancyis actually a person.
(06:55):
So that anything that a personis entitled to legally is
something that that fetus isentitled to legally.
And when we have what basicallyis this kind of dance-off
between rights, between a fetusand the person who's carrying
that fetus, the person who'scarrying it is always going to
lose.
And we're going to talk aboutthis, I'm sure, later today, but
(07:17):
the rights do not stay in oneplace and the harms don't stay
in one place.
So, anything that is being doneto preserve the rights of the
fetus with the giant scarecrowthat you can't see, those are
going to be rights that have tocome from somewhere because
there's not a living andbreathing person.
(07:37):
And the somewhere is the personof the pregnant person's body.
So, it's a dangerous conceptjust as a basic matter, but as
we'll talk about later today, itcontinues to get bigger and
more dangerous and being used inthe most extreme situations
(07:58):
that are threatening the bodilyautonomy and rights of all
people who are pregnancy-able,and particularly women who are
being faced with centuries ofmisogyny that are piling on on
top of that.
Garin (08:10):
Yeah, and I'll just add, I think a lot of times there's
this conflation of how peoplefeel about pregnancy how
individuals feel aboutpregnancy, even how providers
feel about pregnancy, and adeveloping pregnancy even later
in pregnancy.
And then what we're talkingabout, which is the law and the
power of the state.
And so, obviously, everyone iswelcome to, in a way, like
(08:34):
humanize or understand apregnancy at different points.
But what we're talking about iswhat happens when that gets
codified into the law and theimpact that it has on people's
lives.
And then, and today we're goingto talk a little but about,
like, not just with regard toabortion.
I think that's the other thingis that there's this
misconception that giving rightsto fetuses is only a threat to
(08:59):
abortion and I think that issuch a big problem that that's
the only way we're thinkingabout it.
And so, you know, part of thework that Karen and I have been
doing over the last, I don'tknow, year or so in having some
of these conversations is aboutkind of, like, waving this flag
that's, like, hey, this is abouta lot more and there's a lot
more people being impacted by itand I think it is, you know, in
(09:23):
a way the the duty of thereproductive rights, health, and
justice movement to takeresponsibility and
accountability for, like, whatthe things we're putting into
the law mean for people whomaybe are not trying to get
abortion.
"Without fetal personhood,pregnancy criminalization could
not exist," and that is a quotefrom a great report from
(09:45):
Pregnancy Justice, but I dothink that it's important to
just make that link for people.
This is actually the ideathat's fueling people being put
in prison.
And we need to put a stop toit.
Jennie (09:58):
Yeah.
And I mean, I guess that startswith Roe, right?
That put the idea of viabilityinto the law and created this
line.
So, what is kind of thisrelationship between fetal
viability, gestational bans, andfetal personhood?
Karen (10:12):
I think it's important to note that ACOG, which is the
American College of Obstetricianand Gynecologists, are very
clear— it's you know on theirwebsite— that the idea of
viability is not one that theywant to ever be used outside of
a medical context and evenwithin a medical context it has
a very specific meaning which iswhat kind of medical treatment
(10:34):
you need to give to a fetus atparticular parts of times of
development because obviously ifa fetus is four months old
there's things that you cannotdo versus a fetus that's eight
to nine months old, right?
So they are creating their ownlines so they know what kind of
needles to have, what kind ofmedicines can be given.
(10:54):
They're very specific thingstied to that.
But when you remove it fromthat medical context and kind of
drop it in wholesale into alegal context, that is not what
is happening because lawyersaren't doctors, judges aren't
doctors, prosecutors aren'tdoctors.
And so you're talking about amedical treatment protocol
within the context of rights andthat they don't, it's at apples
(11:17):
to oranges.
They don't overlap.
They don't make sense whenthey're taken out of their
context.
And so it's also just trickybecause what has become so
normalized for us, like, oh,yeah, there's a viability.
There's a trimester frameworkin row.
That was great.
It's actually soft personhood.
It's just a very different wayof introducing the same harms.
(11:38):
And so, it's something thatwe're both trying very hard to
kind of change people's thinkingaround.
Garin (11:43):
I do want to flag something there, which is
what I think is a bit of a misconception and one that frankly I think all of us in some way have contributed to which is (11:47):
the idea of viability started with Roe. And the reality is, it did start before that. But it really started there in terms of abortion maybe, in terms of a constitutional right to abortion. But the concept of viability being used in law certainly pre-dated Roe, which is certainly part of the problem here. But even the idea of fetal personhood, of state
(12:18):
protections for a fetus, startedlong ago in some ways.
And so I think that that'ssomething that we just want to
flag, like where the specificconcept of viability is really,
you know, it's a misuse of amedical concept.
It doesn't really mean anythingspecifically.
It's kind of like when a fetuscould potentially survive
(12:40):
outside of the pregnant person'sbody.
Well, you know, we don'treally, a doctor can't really
tell you when something isviable in that way.
Karen (12:48):
And I think the other piece of it— see here we go
because this could go on and onbecause there's so many ways
that it impacts us that we don'tnecessarily see, you know, in
the kind of like bright light—but the thing that I think is
really interesting is readingsome of the decisions around Roe
and what judges were saying atthe time about creating this
framework.
And one of the things theybasically said were like: well,
(13:11):
if we give them those kinds ofrights, they have to have a
limit right so it's not evenplaying a role in in like
ostensible, like health of thechild, interests of the child,
it literally is just like, youcan't have too many rights
'cause then you'll be, you willbe uncontrollable.
And I think, you know, that'skind of one of the foundations
of why fetal personhood andviability lines are being used
(13:35):
because it's really aboutcontrolling bodies.
It's about giving excuses tocontrol and, you know, getting
rid of these is also creatingautonomy for everybody.
So, it's a really seriousrising tide moment.
Jennie (13:51):
And I guess one of the things that this made me think
of as you're talking aboutrights, and just because it
happened last week, this isunrelated to our conversation
mostly, but the State Departmentreleased their annual human
rights reports, and they got ridof the entire section on women,
including reproductive rightsand gender-based violence and
all the things.
But basically, women's rights,full stop, is gone.
(14:12):
And again, they don't want usto have too many rights.
Karen (14:17):
And what better way to do it?
I mean, aside from we've alsobeen told that not voting, but
what other way to do it than tocriminalize people's bodies?
And also to have the governmentsay, we have control of the
product of your womb.
Garin (14:34):
And I do think that Roe in a way, being such a big
decision, did have these echoesacross time and across the law
with regard to entrenching thisidea and this legal standard.
And so, to your point, to yourquestion, yes, this in a way—
(14:55):
with regard to abortion and itspervasiveness and use of the
law— was really supercharged bythe Roe decision.
But if we look at the Roedecision, it's interesting.
When you look at the...
for instance, if you listen tosome of the oral arguments...
there's a lot of discussion inthose oral arguments about fetal
personhood, about does thismean that, like: are you asking
(15:18):
us to recognize the rights ofthe fetus?
And, like, what would thatmean?
And so, what we see in the Roedecision is actually, like, as
far as I'm concerned, a bit of apunt.
They kind of were like, no, itdoesn't have rights, a fetus
doesn't have rights, but we'regoing to do this viability thing
that kind of creates this ideaof fetal personhood within the
(15:41):
context of abortion.
And they hoped, I think, maybeeven they believed that it would
stay there.
But as Karen was pointing out,like, these legal concepts don't
stay in their tight littlepackage.
They're, you know, they're likea fungus.
They grow wide and then they'rereally hard to get rid of.
Karen (15:59):
And we were, you know, Garin and I were with some
fellow advocates, like a smallgroup recently, like talking
about these things.
And one of the first questionswas like: okay, do we really
care about the law anymore?
Is the law really a thing?
Is it a tool?
Does it do anybody any...
like what are we doing here?
Because it doesn't look likethe law really matters anymore.
And you know, I was just likeyes, it does matter, it does
(16:22):
matter and I think, you know, Ithink we got back to that place
of it does matter because ofexactly what Garin said like:
it's ours, too, and even thoughit was invented by a particular
group of people to do veryparticular groups of things, in
the words of Octavia Butler, youknow, "all that we touch we
change and all that we changechanges ourselves." And so, the
(16:42):
things change whether peoplewant it or not.
And so, we can use the law tomake the change.
That's all that has ever beendone when it comes to getting
more and more people theirrights.
And because we are in thismoment of lawless law, what
history has shown us from the'60s and before is that when you
(17:02):
break a law that is lawless,you are actually creating a law
that is righteous.
And so, I think that we have amoment right now to just refuse
I mean this is getting it's sadthat this is getting to be a
cliche but we can refuse tocomply with these things that
are not actually legallylegitimate right.
(17:23):
And making an abortion ahomicide that is a death
eligible policy, while out ofthe other side of your mouth
talking about the interests ofthe child; that is not that is
not logical or right or good.
And I think, as Garin said, weneed to start saying that with
our whole chest.
Garin (17:43):
Yeah.
And I do think the project hereis, or, you know, the strategy
should maybe be not to, like,let them do it.
In other words, we can simplyassert and recognize rights that
we do actually have, you know,that are pervasive throughout
our legal system and ourConstitution, and not leave it
(18:04):
up to anti-abortion advocates orthe far right to interpret the
Constitution in a way thatserves them.
We can simply disagree with thefact that people don't have
rights.
And I think that, like, thereis this, like, shyness around
doing that.
And it's like, you know, we getto interpret this document too.
(18:24):
And maybe, like, the best partof the American project, if
there's any good part left, isthis idea of a shared debate and
shared ownership over meaning.
And I think that we just needto be a bit bolder about
deciding what these things mean.
Jennie (18:40):
I'm so glad you raised that because I feel like a lot
of what we see even sometimesfrom people who are supposedly
pro-abortion is there's thiscompromise spot we can we can
compromise and the anti-abortionpeople and the pro-abortion
people can all agree on this onething and and you know the the
(19:01):
voices and talking heads outthere like this is the one this
is it we can draw the line righthere.
And if there's anything I hopepeople have learned from this,
it is that that is not true.
But Karen, do you have anythingelse you would like to say
around that area?
Karen (19:16):
No, I mean, you can't compromise with a boot in your
face.
Right.
And there's no way that youcan, like, you have to.
Yes, you can compromise aboutlike the color of a dish towel.
And are we or are we doing likechicken or spinach for dinner?
Like everything else, there'sno room for compromise.
(19:37):
And I think, you know, that's areal question that I think that
we've movement has to askitself, are we aiming at
compromise?
Are we aiming at status quo?
Or are we going to be aimingtogether to create the world
that we want to be for everybodythat is safe, that is healthy,
and that is keeping us allprotected and having dominion
(20:01):
over our bodies?
And I think that is what ourgoals should be.
And we need to pull our sightsto that.
Garin (20:07):
And with regard to compliance, I just want to flag
that viability lines beingwritten into abortion policies
into state constitutions is tome a form of compliance it's
complying with a decision thatwas made in the '70s by you
know, a group of men beforewomen even had the right to use
(20:32):
credit cards.
So it's like, we simply don'tneed to comply with this
outdated idea of how theserights, you know, could look and
how they're exercised.
And so I think when we seepeople in a way like retreat to
this row framework, to thisviability framework, because
it's like a comfortable blanketwe can wrap ourselves in, it's
(20:53):
because we're failing to imaginesomething different.
And so, I think that we can, asadvocates, you know, in some
cases, I think if we're thinkingabout lawmakers and leaders, we
can actually lead thatconversation; imagine something
different and put differentthings in place.
Karen (21:09):
The absurdities that are showing up in these guys, you
know, the idea, like, we have tocompromise.
But meanwhile, like, there arepeople who are introducing laws
that are absurd.
So if, you know, we're okaywith advancing this idea that
abortion should be a deatheligible offense.
And if we are okay with sayingthat a fetus should have a
(21:33):
medical marijuana card, then Idon't understand how saying,
listen, "there should be noviability line," feels like a
stretch.
You know what I mean?
The one thing that the antiside has is like the complete
and utter lack of shame, right?
So I'm not, and what I am notgoing to be shamed by are people
(21:56):
who are cutting off all thefunding for kids to get the
health that they need and forpregnant people to get the
health that they care that theyneed to have a healthy
pregnancy, should they so chooseto have that health care or if
they need to have access to it.
Having a world where they canthey don't live in a maternity
desert, right, if you care aboutthose things, then those things
(22:19):
should be happening, but thething is that's not happening
that's being taken away.
And at the same time we'rebeing told all of this best
interests of the child.
I'm not going to be shamed bythose people.
And we shouldn't be shamedabout having these
conversations.
Garin (22:32):
We also think there's this like really arbitrary
version of compromise that we'vebought into somehow.
And it reminds me of this Veepepisode where they're trying to
like figure out what theirpolicy on abortion is.
And Dan is just looking at aboard and yelling, pick a
number.
And that's literally where weare.
He's just like, pick a number,just pick a number.
(22:53):
And so like this idea that thecorrect compromise is somewhere
between a total abortion ban andno abortion ban whatsoever and
is just like some number ofweeks or some arbitrary idea
like viability is uncreative atbest.
And so, I think that we can,first of all, I understand, I
(23:14):
think there's a lot of peoplethat are like: this all sounds
great but, you know, when weget into a situation where we're
trying to get votes orwhatever, we have to compromise.
And you know my first questionis, well, do you?
Like, have you tried not?
I don't know.
But the other thing is that Ithink that we haven't led a
conversation that would allowpeople to imagine something
(23:36):
different.
And so, until we do that, weare simply pre-complying,
pre-compromising, compromisingbefore we're even in the room at
the negotiating table.
Jennie (23:46):
What a great preview for next week's episode.
We're going to be talking aboutthe implications of the "One
Beautiful Big Bill," or whateverthe terrible bill was.
But let's turn back to thisweek's and: how have we seen the
implications of viabilitylimits on pregnant people since
Dobbs?
You know, we talked about howit's not just about abortion
(24:08):
where we're seeing the impacts.
What else are we seeing rightnow?
Karen (24:12):
What Dobbs did is it just dropped all of the guardrails.
So, all of the places that hadthings teed up that would be
made worse or kind of aggregatedby viability lines then became
aggregated by viability lines.
So suddenly the language wasabout, you can't, "unborn
child," this and that, no accessto care after six weeks, right?
(24:39):
Like there's just, I think thelanguage around things changed
in the bans that made things abit tricky.
But I mean, we said this at thebeginning and I want to say it
again.
I think that we have toremember that the biggest kind
of problem, the those waves inthe pool of the, you know, after
(25:00):
you throw the stone, they'renot really in the abortion space
necessarily.
And so, okay.
Garin (25:07):
I also just want to flag, there are certainly
implications in the abortionspace, but we feel in a lot of
ways that those arewell-trodden, like more people
are traveling, more people arebeing denied care.
That is in fact really bad.
And there's something that'sbeen happening well before
Dobbs, which is that these linesand this, you know, granting of
(25:32):
the state power over pregnantpeople once their pregnancy
reaches a certain point has hadprofound implications for people
throughout the country and forthe last, I don't know, 50 years
or so.
And we can talk about some ofthose ways.
And I think we'll get intomaybe some specific examples if
(25:52):
that's helpful.
Jennie (25:53):
Let's talk about that.
Garin (25:54):
First of all, I'll just, I'll like cover some kind of
categories, right?
So, we've talked about abortionbans.
There's also been, there arethese instances where behavior
while pregnant can be punishedbecause there's this theory that
it endangers the fetus.
And so, therefore, thatbehavior can be investigated and
(26:14):
prosecuted.
There are situations wherewe're seeing pregnancy outcomes
being investigated.
So, if pregnancy simply doesn'tend in a healthy birth, a
healthy baby then the statetheorizes that maybe something
went wrong and that there isgrounds for some sort of
investigation there.
And then there's just like morepervasive threats to bodily
(26:38):
autonomy and the diminishedrights of pregnant people.
Karen (26:41):
But also this idea, I think that prosecutors, so the
issues in the spaces that Garinjust mentioned, but I think what
is related to that is thatprosecutors who are prosecuting
these cases based on this ideaof viability and based on these
areas of harm that can be doneto a fetus, they are not given a
(27:03):
high bar to kind of get over tobring these cases.
So because it's just aboutlike, oh, anything that could
possibly be in any waydetrimental to a fetus, that
gets real elastic reallyquickly.
And so, instead of having tosay, okay, then there is a child
(27:24):
who was born who was harmed inways A, B, and C, all the
prosecutor has to say is thatchild was exposed and we think
drugs bad.
So, because drugs bad andbecause fetus exposed, that is a
felony child abuse standard, orbecause you didn't behave in
particular ways, or have as manydoctor's appointments, or you
(27:44):
researched abortion while youwere pregnant and then you had a
stillbirth, that means that youdidn't behave in a certain way
that led to that stillbirth.
Now we're going to charge youwith murder, right?
So, it never stays still.
And then it's really lowhanging fruit, legally speaking.
Garin (27:59):
And Pregnancy Justice has done a lot of work to document
a lot of these cases, bothbefore Dobbs and after.
It's hard to compare apples toapples there with regard to
numbers just because of the waythe research was done.
But what we what we do know isthat there are a lot of these
cases and there's a lot of casesin a few specific states, South
Carolina, Alabama, Oklahoma,for instance.
(28:22):
And we can we can see thosecases coming from
interpretations, from courtdecisions generally, which
interpret this sort ofexpanding, creeping idea of
fetal personhood at some point.
And a lot of times you see thisslippery slope in these
(28:44):
decisions where they say, well,we've recognized, in a way, the
rights of a fetus in thisinstance, and so it just stands
to reason that we wouldrecognize them here.
And then we've recognized themhere.
And so it just stands to reasonthat we would recognize them in
the case of child endangermentfor substance use.
And so you see, it is aslippery slope and it's having
(29:07):
real implications for people,like hundreds and hundreds of
people in Alabama, for instance.
Karen (29:14):
But let's also be clear.
I really want to, you know, ifthere's one thing people take
away from today, while we seethe most cases in certain
states, it is hardly limited tored states.
This is, like, a nationalproblem.
Jennie (29:26):
Absolutely.
Karen (29:27):
And so I think we also just have to be, again, be
mindful of the way that we'vebeen normalized to this idea
that everything that the persondoes could be interpreted as a
harm to a fetus.
And we've been, you know,there's Andrea Ritchie, the
amazing abolitionist who workson prisons and human rights, you
(29:48):
know, has this great line that,"criminalization is the way
that fascism manufacturesconsent." And I think think that
that's exactly what we seehere.
And it's just this idea thatanything that you do that could
harm a fetus, like when you say,like when you push that really
with all your might, then wejust get into this space where
(30:12):
you can't, you can't come backfrom that.
And so you start to say, okay,you know, it's okay if you
arrest somebody for harmingsomeone who's pregnant for
reason A, B, and C, but thenwhat that turns into is that
someone gets arrested whenthey're shot and they're
pregnant for harming theirchild.
It doesn't stay logical.
(30:32):
It becomes just the basis toget illogical.
And so, yeah, I kind of wentoff on a tangent there.
Garin (30:40):
But like, I think we can also like take some specific
cases.
Like if we, I think maybe someor many listeners may be
familiar with the Brittany Wattscase, which happened in Ohio.
And, you know, Brittany Wattswas in this situation where she
was seeking medical care, goingthrough a medical event with
regard to her pregnancy, andfrankly didn't get great care at
(31:02):
the hospital, was ultimatelysent away, and ultimately
experienced a miscarriage athome.
Returned to the hospital forcare after that, and was
subsequently reported to thepolice by her nurse in that
situation.
And that's a very typical thingwith regard to the sites of
(31:23):
criminalization are oftenhospitals now and care
providers.
And there's great work beingdone on that with, like, the
Beyond Do No Harm Network andfolks like that.
But I think that in this case,the interesting thing is that
Ohio had already two definitionsof viability in their law.
So, one was in an abortion law,an abortion ban and viability
(31:48):
that was on the books, but alsoin their criminal code, which
said that (31:53):
a fetus that had reached the stage of viability,
not that itself was viable, butit had reached the stage of
viability, was a person underthe criminal code in Ohio.
And so that fueled thisinvestigation.
And basically the real questionin Brittany Watts' case was
initially not, was there a crimecommitted?
(32:13):
It's was the fetus viable ornot?
And once that case, there wasthe possibility of that having
happened, And having reachedthat stage, that case was
allowed to proceed.
She was investigated, etc., andduring that prosecution, that
question of viability was reallythe main question.
And the judge even noted thatthere was at the time a ballot
(32:38):
measure being advanced in thestate regarding abortion.
And he pointed to that ballotmeasure and said, this is the
question the state is currentlyconsidering.
This question of viability andwhat that means and basically
alluding to personhood here.
And so while Brittany Wattsultimately was not put in jail
or actually, I think, fullycriminalized beyond her having
(33:02):
to go through this trial, thatreally came down to the
viability, not challenging theidea that it was a person under
the law had it been viable.
And I think that's the realcase is, you know, not only was
her life destroyed by this wholething in a way, but people are
then subject to this question ofthe state and when it's when
it's compelling interest takesover and overrides her rights
(33:25):
and ability to go through reallya terrible circumstance for
her, I think.
And there's a similar case inGeorgia, just to, you know,
underscore the point, whichsomeone was unconscious and
bleeding in their apartment, andshe had placed the fetal
remains in a dumpster, and thepolice investigated, and when
they recovered the remains, shewas charged with concealing the
(33:46):
death of another person andabandoning a dead body, and
those charges were drawn, butonly because the autopsy
determined that she'd had anatural miscarriage at around 19
weeks and the fetus wasnon-viable.
But Georgia has the Life Act,which went into effect after
Dobbs, even though it was passedin 2019.
And that's all about fullrecognition to an unborn child.
(34:10):
And so, if that miscarriagehadn't been natural, those
charges would have stuck.
And she may have actually beenliable for something even more
serious, like, again, likepotentially a murder charge.
Garin (34:22):
But I think, again, it's like it's not I think a lot of
people saw that as criminalizingmiscarriage.
And the important thing is thatit's, it rested on this idea of
personhood.
So it's like, it'scriminalizing something that was
done to a person as far as thestate's concerned.
Jennie (34:39):
I mean, it just shows you hear these stories of people
experiencing a miscarriage andinstead of getting support and
help, they're being prosecuted.
Garin (34:46):
And then I think it doesn't stop with these cases.
There's also cases where, wheresomeone's fundamental rights
are being overridden becausethey are have a pregnancy or
because the pregnancy isadvanced to a certain point.
And so, there's recently a casein Georgia with a woman named
Adriana Smith, who was pregnantand admitted to the hospital
(35:08):
because of headaches, givenmedication, sent home, but then
her condition worsened.
And she was eventuallypronounced brain dead.
But because of that Georgialaw, she was kept alive.
And the idea or the hospitalhad some unclarity, I think,
with regard to like what the lawis and the way that they
(35:29):
interpreted it.
They felt the need to keep herbody alive to gestate that
pregnancy until, you know,something had changed
effectively.
And that underscores this.
this issue with advanceddirectives, where a lot of
states, I don't know the exactnumber off the top of my head,
(35:50):
maybe Karen does, but invalidateadvanced directives for
pregnant people, which says thatthe state can override what you
want to happen with your bodybecause you're pregnant.
And so again, why is that?
What is the logic thatunderscores that?
And again, we feel it's thislogic of there being something
(36:14):
that is deserving of stateprotection such that a person's
rights can be overridden.
Karen (36:19):
I think it's a little tricky because they're not
classically a fetal personhoodissue, but what I do think they
represent is the extent to whichthe autonomy vanishes and
there's like a vanishing point,do you know what I mean?
So, I mean 10 states invalidatea pregnant person's advanced
(36:42):
directives regardless of thelikelihood of fetal survival so
if you're pregnant and you havea will that can go completely
out the door, period.
Like, in 10 states.
And 19, they also go out thedoor but it least there has to
be a potential for fetalsurvival not viability but
(37:04):
actual survival with continuedlife sustaining treatment.
And then three states actuallyallow someone's will to be
honored if they're pregnant, ifthey clearly know that they want
it to be honored so at leastthere there's that.
But yeah, I think it'simportant to note this because
we have to understand, like,yeah the extremities, like: what
(37:27):
are the poles of theconversation?
And I think keeping someone whois brain dead alive to gestate
a nine-week-old fetus, which ishow old Adriana Smith's fetus
was, tells us what people arewilling and able and wanting to
do.
Garin (37:42):
And then there's other cases that we've seen where, you
know, someone refuses medicalcare, either because of their
religious beliefs or something,and the state is asked to come
in and effectively allow thehospital to force that that
person to submit to a cesareansection or a blood transfusion.
(38:03):
And again, those rest on thisidea that the state can override
your fundamental rights.
Normally, you have the right todeny medical care and the state
can override that on behalf ofthe pregnancy.
Jennie (38:16):
Y'all, this is so much.
And I'm sure the audience ismaybe also feeling a little
overwhelmed.
So let's maybe turn to, Ialways like to end with giving
the audience actions they cantake.
So, how can they get involvedin this?
What can the audience do to getengaged?
Karen (38:33):
I think that there are a couple of ways.
I mean, as a policy matter,which is still real and still
true, no matter how it feels,you have electeds who are
responsible and liable to you.
You put them in office.
You pay their salaries.
They need to do what you tellthem to do.
And so if you say, listen, weneed you to not roll over if
(38:56):
there is an executive order fromthis administration saying that
fetuses have 14th Amendmentprotections or making fetal
personhood the law of the land,the states still have power and
the states can do the work thatthe states need to do to
preserve people's rights.
And so, we need to make surethat our voices are still being
heard, that they're still beingraised, that we're submitting
(39:18):
comments to bills that are beingpassed, which every person has
the right to do and the abilityto do, that we understand that
this is an interlocked fight,that this is not a struggle that
is just about abortion, that itimplicates the rights of folks
who are incarcerated, disabledfolks.
Obviously, from Skrmetti, itvery much implicates the rights
(39:43):
of trans kids to be able to getgender-affirming care.
It really touches on all thethings that affect wide swaths
of society.
So, if you care about Blackmaternal health, if you care
care about making sure thateveryone has access to the
caregivers and the care thatthey need, then this is the
(40:05):
issue for you.
And you need to make peopleresponsible for ensuring that
our rights remain intact.
Garin (40:12):
And that includes, I think, you know, people that we
maybe sometimes look to to sortof fight the fights.
So, I think sometimes, youknow, we vote for the thing in
front of us.
And I think it's important foreveryone to take a moment to to
read the thing in front of youand see if you support it.
And if you need help makingyour way through it, there's a
(40:34):
lot of us out here who are happyto talk it through.
We also created a tool, apatient forward created a tool
called Unpunished Pregnancy.
It's atunpunishedpregnancy.com, but you
can go through that andevaluate policies that you're
being asked to support or thatyou maybe aren't sure whether
they're good or not.
Fetal personhood is definitelyone of the main things in there
that we're looking at, but Ithink it's okay to ask for
(40:56):
something better.
I think that's really where Iwant people to get is you don't
have to actually just like takethe thing that you're given,
which whether that's someoneelse's interpretation of your
rights or a policy that maybeisn't really providing the
liberation that people aresaying it does.
And I think we have to keepasking for more and keep
(41:17):
fighting for more.
Karen (41:18):
And it does feel like a lot.
I mean, obviously, like we'reboth in it.
So we see sometimes that itfeels like a wall.
But the other thing is, When weactually get in there, when we
show up in courtrooms, when wesay, hey, hey, hey, hold up,
that is not what this law says.
This is not what you can do.
(41:38):
This is not actually a crime.
There are carve-outs that don'tallow you to behave this way.
We win.
People understand.
Prosecutors drop charges.
You might have remembered a fewweeks back, West Virginia AG
was like, we maybe should starthaving people report their
miscarriages to cops.
And the noise that greeted thatwas so loud that other AGs in
(42:05):
the state were like, we don'tknow him.
So I think that's what we cando.
That's what we can do.
And we do use our voices.
And so it feels a lot.
And there's a reason for that.
It's to make people feel likethey don't have any autonomy to
fight back and to makedecisions.
But we do.
And so the only way to getthere is to raise your voice.
Jennie (42:27):
Well, Garin, Karen, it was lovely to have both of you
on today.
Thank you so much for beinghere.
Karen (42:33):
Thanks for having us.
I appreciate it.
Thank you.
Jennie (42:36):
Okay, y'all.
I hope you enjoyed myconversation with Karen and
Garin.
Like I said, it is such animportant conversation in this
moment with criminalization.
Really, you're hearing so manymore stories breaking through
and it is just really importantthat we are standing for what we
believe and not letting theseviability lines cause further
problems beyond abortion, butinto other areas where we are
(42:57):
seeing criminalization.
criminalization for pregnantpeople.
With that, I hope you enjoyedthe conversation and I will see
everybody next week.
[music outro] If you have anyquestions, comments, or topics
you would like us to cover,always feel free to shoot me an
email.
You can reach me at jennie,J-E-N-N-I-E, at
reprosfightback.com, or you canfind us on social media.
(43:19):
We're at Repros Fight Back onFacebook and Twitter, or
@ReprosFB on Instagram.
If you love our podcast andwant to make sure more people
find it,take the time to rate and review us on your favorite podcast platform. Or if you want to make sure to support the podcast, you can also donate on our website at reprosfightback.com.
Thanks all!
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I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com