Fetal Personhood as 'The New Civil War over Reproduction'
57:44 Share

Support for KQED Podcasts comes from Landmark College, commemorating 40 years of educating people who learn differently, with programs on campus and online for both students and professionals. Learn more at landmark.edu. Support for KQED Podcasts come from Berkeley Rep, presenting Aves, an intriguing new play about memory, forgiveness, and unexpected transformation.

playing May 2nd through June 8th. More info at berkeleyrep.org. From KQED. From KQED in San Francisco, this is Forum. I'm Ina Kim. Overturning Roe was never the ultimate goal of the modern anti-abortion movement, according to UC Davis historian Mary Ziegler. It was always to establish personhood for a fetus or embryo with constitutional recognition and protection.

Ziegler joins us to break down the movement's current strategy with Trump's election and the high-level appointments of abortion foes, and what it could mean for abortion access, IVF, criminalization, and more if the movement achieves personhood, which is also the title of Ziegler's new book. Join us. Welcome to Forum. I'm Mina Kim.

The term fetal personhood has taken on various meanings that have shifted over the past half century, says UC Davis law professor and historian Mary Ziegler. But it has consistently involved two core arguments. First, that a fetus is a separate, unique human individual from the moment of fertilization. And second, that because of that, the Constitution gives that individual rights.

Ziegler says fetal personhood has been the goal and the glue of the modern anti-abortion movement, and now, invigorated by the overturning of Roe and the election of a Republican administration, we look this hour at where the movement is headed and what the impacts of establishing personhood at conception would be.

Listeners, what do you think it would mean? You can tell us by emailing forum at kqed.org, calling us at 866-733-6786, 866-733-6786, or finding us on Blue Sky, Facebook, Instagram, or Threads. Mary Ziegler joins me now, professor at UC Davis School of Law. Her new book is Personhood. Mary, welcome to Forum.

Thanks again for having me. Yeah, glad to have you back. So where in the Constitution are leaders of the anti-abortion movement focused? Where do they say that embryos are or should be covered? They're focusing on the 14th Amendment, which listeners may recognize as where we get liberty and equality, and interestingly, where the Supreme Court and Roe v. Wade rooted a right to abortion. And their basic argument is that the word person in that amendment applies the moment an egg is fertilized.

And that thus those rights to liberty and equality that any of us have also apply to embryos and fetuses. So if that's the case, then what do movement leaders say should flow from that? I know they published a 2023 piece outlining this in the National Review, calling it the movement's new North Star. Could you give us a sense of what it said?

Absolutely, yeah. The basic premise is that if these fetuses and embryos are rights-holding people, that liberal abortion laws or liberal laws on IVF are unconstitutional as a matter of federal law. So this would not be something that would be left to the voters in California or Missouri. It would be decided by judges as a matter of federal constitutional interpretation. Now, anti-abortion leaders recognize that

No matter how conservative our Supreme Court is, that's not likely to happen imminently. So they're trying to kind of create a death of a thousand cuts strategy that will end in that kind of judicial decision, starting with state legislation and state judicial decisions that accord fetal rights in narrower areas of the law, like wrongful death or child support during pregnancy or regulations of how many embryos can be created or stored or even how embryos are destroyed after IPF.

And they're hoping that this will kind of set the stage for a later judicial ruling that would have sweeping impacts nationwide. Yeah, and I want to get into some of those efforts. But essentially, then, they're saying that IVF would not be okay, at least in its present form.

That's right. So the idea is that if an embryo is a person like any other person, there would be a problem with indefinitely storing that person in terms of cryopreservation. There would be a problem with destroying that person or donating that person for research. So the premise is that if IVF were to exist at all, it would require that only one embryo could be stored and implanted at a time, which would make IVF both

significantly more expensive and significantly less effective. And potentially, I think the idea might be so ineffective that people might stop pursuing it altogether.

The other thing that they wrote was ensuring that fetal homicide, wrongful death and child endangerment laws, including the Federal Unborn Victims of Violence Act, are vigorously enforced to protect all pre-born children so that pre-born babies and their families can obtain justice against the criminals who harm them. So they're also saying that fetal personhood being recognized in the Constitution would require criminalizing abortion.

That's right. And I think the other really critical point you made is not just abortion. So we've already seen a spike in prosecution for other pregnancy-related conduct since Dobbs. But that sort of prosecution has been part of the fight for fetal personhood really since the 80s and 90s. Most typically, prosecutions we've seen have been for substance use during pregnancy. Those have primarily targeted fetal

low-income people and people of color, but we've seen that radiate outward too since the overruling of Roe. For example, we've seen an increase in prosecutions for people who are disposing of fetal remains or dealing with the aftermath of a miscarriage in a way that prosecutors find problematic. So we would expect to see arguments not only that fetal personhood requires the criminalization of abortion,

or perhaps the criminalization of IVF, but the criminalization of other conduct during pregnancy as well. So can you talk about other reflections of this view of fetal personhood in state proposed legislation and so on? Yeah, we're seeing a debate unfold, really, right? So on the one hand, we're seeing more kind of modest proposals. So for example,

lawmakers in states like Kansas introducing, and Florida introducing measures that would allow people to sue for wrongful death if someone causes a miscarriage or stillbirth.

or requiring that pregnant people receive child support during the pregnancy. We're also seeing more extreme proposals emanating from a part of the wing that calls itself the abolitionist wing, essentially saying that the law should recognize fetal personhood explicitly, and not only that, in doing so should authorize the punishment of people who have abortions, which is

isn't currently the law in most states that ban abortion. So there's already been a kind of open debate about what it would mean to embrace personhood and how far this kind of criminal dragnet would extend.

Yeah. And as you say, the range, I know at least 10 states have introduced bills to redefine abortion as homicide or murder in some cases. And then there have also been lots of attempts to curb the ability to travel outside of the state to a state where abortion is still legal, right? Yeah. And so, you know, we're seeing, I think one of the things that's important to recognize is

is that I think some people came to see the fetal personhood movement as the sort of fringe wing of the movement, that there was a fetal personhood movement and then there was the mainstream anti-abortion movement. And abortion opponents are pursuing lots of initiatives at the moment that would not amount to full-blown fetal personhood.

But I think what people have often misunderstood is that there's no disagreement within the anti-abortion movement about the desirability of fetal personhood as the endgame. There's disagreements about how quickly it can be achieved, what the best strategy is to pursue it, and how it ought to be enforced. But I think part of what we're seeing unfold now are those kinds of strategy disagreements. There's really not much disagreement that that's where the movement ultimately wants to end up.

Well, listener Steve on Discord writes,

On the whole, Steve's right, right? That this view and the actions of some of these states are broadly, if you look at the country overall, unpopular. How would you characterize where the country stands, Mary? No, absolutely. I think one of the things about the fetal personhood movement that's striking is

Abortion opponents understand full well that fetal personhood at the moment is not popular. And one of the striking things about it is that the movement is not temporarily tabling that goal in pursuit of more popular ones. In some ways, it's saying we're simply going to find a way to get around the fact that voters do not approve of fetal personhood. If you look at where the focus of fetal personhood is from the very start of our conversation, it's on what federal judges are willing to declare.

This is not something the movement expects voters to embrace. It's not something the movement expects will ever be written into federal law by statute. It's something the movement is hoping it can convince five conservative judges on the Supreme Court to say. And that may not be possible today, but it's more likely in the future, particularly because, of course, Donald Trump is in office for four years.

he will shore up the conservative majority on the Supreme Court and, of course, make the federal courts as a whole far more conservative than they are even today. So easier to convince five justices than the whole of the country is.

Beth on Blue Sky writes, many pregnancies end in miscarriage, and so many women never know they are even pregnant. Seeking to have an embryonic stage pregnancy, have the same rights as any viable human being, would open a whole unmanageable can of worms. I mean, part of the reason also that I think...

the idea of fetal personhood or the efforts toward fetal personhood are not necessarily broadly held as I think there's been a lot of education since, especially the overturning of Roe, that abortion is a routine procedure in the event of miscarriage or pregnancy complications and that people don't just seek abortion because they want to terminate an unwanted pregnancy.

That's right. And I think that we've already seen that just regular generic abortion bans have what I hope are unintended consequences on miscarriage and stillbirth care. The other thing I think that we've seen since the overruling of Roe is a divergence for people who see themselves as believing life begins at conception or even that rights begin at conception.

beginning to question whether that necessarily means criminalization of the kind we've seen in the States and criminalization of a much more robust kind that fetal personhood proponents are currently championing, right? So I think there's also a way in which people who say in the abstract, they like the idea of a right to life or they like the idea of valuing fetal life, beginning to wonder why

that should translate into criminal laws or constitutional prohibitions on decriminalization, which in some ways what fetal personhood champions are advocating for because criminal laws have just the consequences you're describing.

Interesting. Ron writes, as a supporter of abortion rights, I've long thought at the core of the matter is something almost impossible to create agreement on, the personhood of embryos and her fetuses. At what point does a fetus become a person? If this went to state law, I could tolerate that, but it seems like pro-lifers would not stop there. So in some ways, and we're coming up on a break, is this, have you seen this idea of, yes, I actually believe in fetal personhood, but I don't believe that it should lead to criminalization as almost a middle ground?

Yeah, well, I think that one of the things that's really striking for me as a historian is when I find the most kind of complicated things

nuanced accounts of what people think fetal life is. It's often people who have abortions and people who perform abortions. So Americans can hold lots of ideas in their minds at once about what pregnancy involves and why embryos matter. That's of course true of people who pursue IVF too, but I think fetal personhood politics at the moment don't make space for that kind of nuance. So hopefully we can eventually get to a place in American politics where those kinds of attitudes can exist.

We're talking about the fetal personhood movement with Mary Ziegler. More after the break. I'm Mina Kim. Support for KQED Podcasts comes from Landmark College, offering executive function and social coaching support for neurodivergent individuals online or in person at the Bay Area Success Center in San Mateo.

The Bay Area Success Center provides neurodiverse teens, young adults, and adults with access to unmatched resources and support based on Landmark's academic and student life elements of their campus in Vermont, ensuring success in their academic and social skills development journey.

Learn more at landmark.edu slash success center.

Through June 23rd, new customers can get 400 megabit Xfinity Internet and get one unlimited mobile line included, all for $40 a month for one year. Visit Xfinity.com to learn more. With paperless billing and auto-pay with store bank account, restrictions apply. Xfinity Internet required. Texas fees extra. After one year, rate increases to $110 a month. After two years, regular rates apply. Actual speeds vary.

You're listening to Forum. I'm Mina Kim. We're looking this hour at the fetal personhood movement to recognize a fetus or embryo as a person under the Constitution. It's the long-term goal of the anti-abortion movement, according to my guest Mary Ziegler.

It was not the overturning of Roe v. Wade. Ziegler is a professor of law at UC Davis School of Law, has written several books on law, history, and politics of abortion, and her latest book is Personhood, The New Civil War Over Reproduction. And you, our listeners, are joining the conversation. What are your questions about fetal personhood and the anti-abortion movement's next steps? What do you think establishing fetal personhood under the Constitution would mean, the impacts it would have? What do

What do you think of the argument that embryos or fetuses have constitutional rights? Are you or someone you know preparing for a further loss of abortion access or changes to IVF or even contraception? You can tell us by emailing forum at kqed.org, finding us on our social channels on Blue Sky, Facebook, Instagram, and threads at KQED Forum, or by calling 866-733-6786, 866-733-6786.

So before the break, Mary, we were talking about how the fetal personhood goals and the impacts of it are not broadly popular, at least the impacts that the anti-abortion movement's leaders are saying a recognition of fetal personhood should have. So do you think that lack of popularity explains in part why, at least so far, it does not seem like President Trump has really been active on this issue or active on the anti-abortion movement's goals?

I do. I mean, I think it's a combination. I mean, President Trump has not been shy about pursuing things that seem likely to be broadly unpopular, like tariffs. But he's only seemingly been willing to take those risks when he feels passionately about the issue himself. And he does not have a track record of being passionate about abortion. And he seems keenly aware that the abortion issue is still a very tough one for Republicans to

even when Republicans stop well short of embracing full-blown fetal personhood. Obviously, I want to be careful because we're still very early in the Trump administration and there have been figures like RFK Jr. and Marty McCary who've been telegraphing the possibility that we may see more from the Trump administration. But I think it suits the president at the moment to outsource the most extreme decisions on abortion to federal judges, which I think, of course, a personhood strategy is,

allows for, right, that those decisions can come from judges that Trump nominates, not from the administration itself. So while Trump isn't necessarily personally passionate about this, you do write that J.D. Vance is in favor of the Justice Department using the Comstock Act as a de facto abortion ban, which Project 2025 also calls for, which Vance is close to. Can you remind us of the Comstock Act?

Yeah, so the Comstock Act was a 19th century obscenity law that touches on abortion among many, many other items deemed to be indecent or immoral. And Project 2025 and Vance and other figures in the anti-abortion movement argue that the Comstock Act actually is a ban on mailing any abortion-related drug or paraphernalia and indeed on receiving any of those items as well, whether through the post office or

any kind of commercial carrier like FedEx. So this strategy would be a kind of backdoor ban on all abortions because of course no procedure, no medication in the United States doesn't involve something that went through a common carrier in public transit of this kind. So we've seen important figures in the Trump administration hint that this is a good idea. We haven't seen the Justice Department move on it yet.

But that doesn't mean that we won't, right? It does mean that the Trump administration's proceeding with a kind of circumspection on abortion that we're not seeing on other issues. That in and of itself is interesting, but may not tell us where we're going to end up, you know, in a year's time or even six months time.

A listener on Discord writes, simply put, people who start by granting zygotes the rights and dignities proper to actual human beings will end by limiting actual human beings' rights and dignities. Sort of like the argument that we've heard around the balance of the value of the life of the fetus and the value of the life of the mother of a pregnant person. How much does that come up in the movement these days?

Yeah, I think one of the striking moments for me was shortly after Dobbs, there was a woman in Texas who was pregnant who wanted to drive in the HOV lane. And I think most people took that as sort of amusing, but it actually posed this really interesting question, which was, what would it look like if we tried to say conferring fetal rights is something we can do without erasing the pregnant person or mother, right? Like, what would it look like? Because this person was saying,

why doesn't fetal rights look like something that benefits me? Why isn't that giving me more rights? I'm the person carrying the pregnant, the pregnant person who is carrying this other what you say is a person. So I think one of the things we've seen with fetal personhood politics is there sort of are oddly oppositional or at least sometimes erases the fact that at a minimum, if you believe a fetus or an embryo is a person, there are two people involved. Right.

even if you go that far. So I do think that that's something that's an interesting feature of the debate, that we're not thinking of ways in which valuing fetal life looks like doing more to help people who are pregnant. Instead, it looks more like finding ways to punish acts after they've taken place. I think Lorraine's comment

Touches on that. Lorraine writes, though I don't advocate abortion used as a morning after birth control measure, I am opposed to classifying abortion as homicide. There is an irony with respect to the fact that those who want to make abortion illegal have no desire to provide financial support to those who are forced to carry a pregnancy to term. If the government wants to force a woman to sustain a pregnancy, it should also provide the social services that make the child's life worth living.

So when we were talking earlier, Mary, about people who support fetal personhood but not criminalization, could an expression of fetal personhood and that support be sort of what Lorraine is saying? And as you were just touching on, just fully supporting the pregnant person's ability to successfully have the child.

Yeah, well, I mean, if you look at some other countries that purport to recognize fetal rights, like South Korea or Germany, they then go on to say, we don't see how criminalizing abortion necessarily advances those rights. We don't know if criminal laws work. We don't see why the government isn't doing more to make it attractive for people to be pregnant and to be parents.

Because I think there's a conviction, probably correctly, that some people will always have abortion. There are some people who don't want to pursue parenthood. There are some people who are having abortions for reasons beyond a lack of support. But there are also certainly people who are having abortions because the world in which they would be becoming parents is not one they can really encounter, right? Because of poverty, because of racism, because of any number of other things the government could do more to address in some places.

And we don't see the government doing that. So there's also a question of if you are serious about protecting fetal life, why is the first and only step really that you're taking criminalization? Let me go to caller Lucinda in Sausalito. Hi, Lucinda, you're on.

Hey, good morning, and thank you so much for your work. I'm pro-abortion, and I'd like to know what the average person who is pro-abortion could do. What can I do to help stop this direction or reverse it, reverse making abortion illegal? Mary, thanks for listening.

Yeah, I mean, I think there are a few different things. On the fetal personhood front in particular, the sort of more specific to abortion thing I think people can do is to become better at talking about how being in favor of legal abortion is not to be indifferent to life in the womb, right? There are plenty of people who have been pregnant, who've had miscarriages, who have friends who've had stillbirths, who are compassionate about all of those experiences and don't see the point of criminalization. So I think...

We can do better in talking about that in a way that doesn't sound like people who support access to abortion are indifferent to pregnancy, pregnancy loss.

or even fetal life. The bigger picture thing, I think, goes back to something we were discussing earlier, which is, again, that voters already don't want this. So if you see yourself as someone who cares passionately about reproduction as an issue, whether that's IVF, whether that's abortion, I think you have to sort of look big picture at protecting the democracy as a whole. So it's just as important to care about things like voter ID laws or campaign finance as

Because whether or not we end up with policies like a very carceral version of fetal personhood will depend on how healthy our democracy is in general. It seems very unlikely to me that voters will be persuaded to embrace this kind of policy. I think the question is more whether voters will have the decision taken from their hands altogether. We're talking with Mary Ziegler about our new book, Personhood, The New Civil War Over Reproduction.

And Mary is a professor of law at UC Davis School of Law. And we're talking with you, our listeners, about your questions about fetal personhood and the anti-abortion movement and what you think establishing fetal personhood under the Constitution would mean, the impacts it would have, and about the arguments that embryos or fetuses do have constitutional rights.

writes Ellen Ellen Elenia or Elena on discord writes we could see a miscarriage equal murder we could see pregnant women banned from activities like sports to not endanger the superior person carried in their wombs no well worries if you thought the situation was bad enough with current abortion bans creating a lot of chaos this is going to be totally bonkers you know one thing that um

I think you make clear is that people who believe in the value of fetal life are sincere. The other thing that I think really comes through in your book, Personhood, Mary, is that this is a movement that's also been very savvy and very adaptable. I'm wondering if you could talk a little bit about that history and some examples of how they have really responded to the temper of the country.

Yeah, I think one of the things that happened when I first started writing this book was that essentially people would ask, well, isn't like why write about something that is just a kind of political cover for something else? And I really don't think that's what it is. If you go back to the beginning, when fetal personhood arguments were first, I would say, invented in the 1960s, they definitely had a strategic component. This was when states were first beginning to reform criminal bans and

And what was then a mostly Catholic movement could no longer go with the arguments that had been common for a while, like abortion would facilitate sexual promiscuity, for example. So Catholic leaders, again, just began to say, we can't reform abortion laws because doing so would be unconstitutional. It would violate these fetal rights. But then the arguments really took on a life of their own. They seemed to be compelling to people, even when they were not talking to the public, they were not talking to politicians, etc.

And yet what personhood has meant over time has been incredibly fluid. That's part of its appeal. I think it can mean different things to different people. So it's reflected changing attitudes about race, about race,

criminal punishment, about welfare and the treatment of Americans who are living in poverty, about corporate rights. So it's kind of a mirror into how conservatives think about the Constitution well outside the context of abortion. And so I think it's worth paying attention to

for that reason too. If you're kind of trying to get a beat on how much more our constitution can be changed in its interpretation, personhood is a really good starting point for understanding that. Yeah, it's really interesting.

you describe how when they started to focus on conservative, you know, legal circles, they started to draw on constitutional originalist arguments. And then when civil rights was being recognized for black Americans, they made the argument that classifying someone on the basis of being in the womb, right, was analogous to racial discrimination as well. And so on and so forth. So,

But there are disagreements in this movement, within the movement, that I'd love to talk with you a little bit about. I imagine there are disagreements about how to handle IVF because IVF also ultimately is trying to have more babies. Yeah, absolutely. So, I mean, one of the things that's really striking about IVF, of course, is that

It's not surprising that people who champion this theory of personhood would oppose IVF, right? If you sort of follow the logic, it stands to reason. And yet anyone who sort of briefly thinks about it will not be able to remember massive amounts of opposition to IVF occurring until very recently. And that's not because people in the anti-abortion movement didn't see the connection between personhood and IVF.

It was because, one, many of them still thought IVF was a pro-life technology in a way that certainly abortion was not. Second, I think there was a realization that taking on IVF would be politically very unwise, given that IVF is even more popular than abortion access, which is saying something.

So there's a disagreement about IVF. There's certainly a disagreement about the desirability of punishing women and pregnant people for abortion that we're seeing exploding onto the stage ever more in the years since Roe was overturned. What about punishing doctors and others? There's a lot of agreement on that. That's an area where we're not seeing much agreement. Once you get past doctors, that's where things get more complicated. So

Of course, most abortion bans to date have targeted medical providers, but there's an ever-growing list of people who are considered accomplices. Those can include people engaging in what we would now see as sort of free speech. So people who create websites, internet service providers, people who donate to abortion rights organizations or organizations

fertility awareness organizations. So there's controversy about that because it implicates the freedom of speech, freedom of association. And then there are ultimately also disagreements about whether people who take abortion pills should be punished, whether people who order abortion pills online should be punished. Those are the questions I think we're seeing come to the fore more and more, in part because

Part of the appeal of Fatal Personhood before was that it was sort of like the dream scenario, like the utopian constitutional change that people could pursue that wasn't going to happen. It didn't look like it was realistic. Now that Roe v. Wade is gone and we have a very conservative Supreme Court that will likely become even more conservative in a federal judiciary that is likely to become more conservative,

anti-abortion groups recognize that they have to get real about what personhood is going to mean. And that's why we're starting to see more and more of these disagreements break out in the open rather than happening behind the scenes. Vicky on Blue Sky writes, will men somehow be held accountable in the personhood movement? Should they be able to procreate if they abuse drugs or booze, which could impact a fetus? Yeah, it's an interesting question. So yes, in a way, right? I mean, we've seen people argue that men who

are directly involved in a decision to have an abortion or potentially to destroy an embryo created by IVF could be held accountable as accomplices. And that's not unthinkable because historically when abortion was a crime in the 19th century, men who paid for or facilitated abortions were sometimes prosecuted too. Having said that, the way the personhood proponents are currently conceptualizing men's role is very different. So

there has been an ongoing effort to recruit men to sue doctors and other people who help facilitate abortion for wrongful death on the theory that the men are victims of women having abortions, people helping women have abortions. And in some ways, men are the spokespeople for the unborn children, right? That's kind of the way these wrongful death suits are being stylized. So

While in theory, men could be punished too in this kind of expanding dragnet, the way I think most people in the anti-abortion movement are currently thinking of it is that men are victims more than perpetrators. Hmm.

Let me remind listeners that we are talking about the fetal personhood movement this hour and how it's a long-term goal of the anti-abortion movement. We're analyzing what it could mean for abortion access, IVF, criminalization, and more, and looking at where this movement is headed. Mary Ziegler is professor of law at UC Davis School of Law and author of Personhood.

What are your questions about fetal personhood? What do you think establishing it under the Constitution would mean and what impacts it could have? What do you think of the argument that embryos have constitutional rights? And are you or someone you know preparing for a further loss of abortion access? This listener writes, these are Christian right-wingers who are attempting to legislate their religious beliefs. Unfortunately, they will probably succeed because the courts have been packed by Christian nationalists. Well, we'll see. Let's talk about that after the break.

You're listening to Forum. I'm Mina Kim.

This episode is brought to you by Chevy Silverado. When it's time for you to ditch the blacktop and head off-road, do it in a truck that says no to nothing. The Chevy Silverado Trail Boss. Get the rugged capability of its Z71 suspension and 2-inch factory lift. Plus, impressive torque and towing capacity thanks to an available Duramax 3-liter turbo diesel engine. Where other trucks call it quits, you'll just be getting started. Visit Chevy.com to learn more.

Greetings, Boomtown. The Xfinity Wi-Fi is booming! Xfinity combines the power of internet and mobile. So we've all got lightning-fast speeds at home and on the go! That's where our producers got the idea to mash our radio shows together!

Through June 23rd, new customers can get 400 megabit Xfinity Internet and get one unlimited mobile line included, all for $40 a month for one year. Visit Xfinity.com to learn more. With paperless billing and auto-pay with store bank account, restrictions apply. Xfinity Internet required. Texas fees extra. After one year, rate increases to $110 a month. After two years, regular rates apply. Actual speeds vary.

Welcome back to Forum. I'm Mina Kim. Fetal personhood has been the goal and glue of the modern anti-abortion movement, and we're looking at where the movement is headed and what the impacts of establishing personhood at conception could be with Mary Ziegler, professor of law at UC Davis School of Law. Her new book is Personhood, The New Civil War Over Reproduction. And with you, our listeners. Matt writes, figure

out whether or not the fetus is a person should be the starting point. If it's not a person, then it doesn't matter what is done with or to it. But if it is a person, then we can figure out what protections it deserves. But trying to declare a personhood or not based on outcomes seems backwards to me.

Greg writes, it's not at all clear to me that an unborn child should not in principle have some rights. The question should be whether an unborn child has cognitive awareness. Otherwise, setting a point in pregnancy when the fetus has rights is arbitrary. The balance of rights between the carrier of the child and the child is an inherently difficult ethical question, regardless of the legal struggles. What do you think about what these listeners are saying, Mary?

Well, again, I think that that's the kind of nuanced conversation I wish we could have, right? So another good example is child support during pregnancy, right? So you could say if an embryo or a fetus is a person, maybe we should do more to support that.

people during pregnancy to make it more likely they can stay healthy and get access to prenatal care during pregnancy. And that is an idea, not that I'm the arbiter of anything, but that intuitively is a pretty appealing idea to me. And yet I'm aware that if I embrace that idea in contemporary politics, I'm leading to the kind of new North Star outcome I don't want. So there's a sort of all or nothingness to the way we approach funeral rights in the US and contemporary politics.

that inexorably leads to criminalization. And I think that's pretty unfortunate, right? Because I think if you were to have a good faith conversation about how do we value fetal life, what would that look like? It wouldn't look like the conversation we've been having in recent decades. And I wish it's a conversation we could have, but at the moment, the conversation we're having is leading more toward either we're going to have more criminalization or less, and that's pretty much the extent of it. And I think that's unfortunate.

You know, it's so interesting. I remember when Roe was being overturned, there was a suggestion from Justices Alito and Kavanaugh that overturning it and turning the matter to the states would somehow make it less divisive, less extreme. But that's not what's happened, right, Mary? No, I mean, it's not surprising, right? Because, I mean, there was pretty much absolutely no one who was in it to return abortion to the states.

There may have been voters who liked that as an outcome, but no one who's actually in a movement was advocating for that at the end of the day. The anti-abortion movement wants the equivalent of Roe for the fetus, right? Wants a decision saying it is not up to states and voters or doctors or bioethicists. It is up to five justices on the Supreme Court. Champions of abortion rights, of course, are unhappy about...

the demise of Roe too and have continued to fight. So you have a scenario where essentially what the Supreme Court did really didn't please anyone. So the idea that we haven't come to some sort of point of peace and resolution is utterly unsurprising. And it's hard to believe that Justice Alito wasn't fully aware of that when he wrote those words. Yes. You, the subhead to your book is the new civil war over reproduction is in, is that in part what you're touching on?

Yeah, absolutely. I mean, I think we're likely to see another 50 years of struggle over whether we are going to get to some kind of fetal rights and if we are, what they should look like. I don't know. I mean, at the moment, I think it's still a long shot that we'll get the kind of outcome abortion opponents want.

But I was surprised by how quickly the Supreme Court moved on Roe v. Wade. So I've been very publicly wrong about that sort of thing before. So I'm hesitant to be confident that we can predict where the country will be going in the future on this either. Yeah. The other thing that is...

very interesting as an outcome is that abortions across the country have actually increased overall. Can you explain, since the overturning of Roe and the Dobbs decision, can you explain that? Yeah, well, we have data going back for some time that what can lead to more or fewer abortions is complicated, right? So there's data to suggest that access to family planning tends to lead to fewer abortions.

There's data to suggest that periods of economic hardship lead to more abortions. Again, people who are on the fence about continuing a pregnancy are less likely to do so when they're afraid they can't afford another family member. And we've also seen that at the moment, state abortion bans are not really enforceable, either because people are able to travel to states where abortion is legal, particularly in

adjacent states in some instances, like New Mexico or Illinois. We've also seen that states where abortion remains legal, like California, have physicians who are willing to mail pills into states where abortion is illegal. And all of those things have made it very hard for states to enforce their criminal bans. They've also really upped the stakes of whether the Trump administration is going to impose some sort of federal limit on

they've also created the possibility of kind of civil wars between states even before we get to fetal personhood. For example, about which state's law gets to apply, whether doctors and other people in California can be prosecuted for violating the laws of, say, Texas or Louisiana, as we've already seen with efforts to target New York physicians there. So I think we're already in a civil war, and I think fetal personhood is sort of the next big thing.

steering that conflict. This listener writes, could this lead to the outlawing of birth control, IUDs, Viagra?

Yeah, it'd be interesting. Viagra, I don't think. But there is, of course, along with this effort to secure fetal personhood, a rethinking of what the word abortion means. More than a dozen states since the overturning of Roe have actually changed the definition of abortion in their state laws. That's happening again this legislative session. We're seeing more proposals to do that. And we've also seen abortion opponents, some key organizations,

arguing that common contraceptives are in fact abortifacients, particularly emergency contraceptives and IUDs, but also sometimes including the birth control pills. So what this would look like probably would be

Key anti-abortion groups arguing that contraception violates the principle of fetal personhood, not because contraception itself is a problem, but because contraception actually is abortion in disguise. So that's something we're already starting to see. I expect we'll see more of it, but it's definitely true that access to drugs and devices we think of as contraceptives would be implicated, too.

Red writes, my body, my choice is a jurisdictional argument which sets aside all moral or religious questions and asks only who has jurisdictional sovereignty. The problem is our legal system has never defined a zone of inviolable personal sovereignty until we do define that zone as one's own body. We will remain in a perpetual either or war over these matters. Do you think Red's right? Yeah, I mean, I think that it's true that my body, my choice also was not...

necessarily helpful in grappling with these nuances, right? So there's pretty amazing work that's been done by sociologists on this saying most Americans think abortion is a right. A lot of Americans think, most Americans think abortion should be legal. And the kind of morality question with abortion has been tougher for Americans to grapple with. Although the numbers of people who think abortion is a moral choice are at near or record highs, right?

So I think all of that goes to say that there needs to be a kind of more careful, nuanced accounting of how we can live with all of those. In other words, if abortion is a moral choice, why is it a moral choice? If abortion is a moral choice and you are someone who believes life has value, how do you make sense of that? Is there a way to talk about that? Right. And I think to some degree, a lot of our politics in the past have been designed to preserve Roe.

And arguments that were at odds with that goal when Roe was the law were shunted aside. And so I think one of the features of Roe being gone is one that we're seeing very new, at least what appear to be new, but new to the public arguments about fetal personhood coming to the fore. But we're also starting to see, I think, people who support reproductive rights wondering what a rethink in that realm would look like, because there's

there's space for it now that the quest is not just to preserve a kind of fragile status quo. Listener Anthony writes, I'm an 80 year old Catholic man. I support the right to life period. I oppose both abortion and capital punishment. However, I do not support the criminalization of abortion. We should support women in their pregnancies and after birth. We criminalize far too many people. And it's usually the poor and racial minorities who are criminalized and incarcerated.

Vicky on Blue Sky writes, what if a pregnant woman has an emotionally abusive partner which causes stress that impacts and harms the fetus? What if she lives with a chain smoker? What if they live in an area with high levels of toxins? Will it just be the woman who's blamed? I think those questions are really getting to what you've alluded to, which is really sort of the Pandora's box that fetal personhood sort of opens up, especially if you put it in the criminalization realm, which Anthony is opposed to.

Yeah, absolutely. And it's totally fair. I mean, I think Anthony's point is well taken that if we had the equivalent of a national criminal abortion law,

who would be punished and it's reasonable to assume that it would be who is always punished, right? Who doesn't have the money for a good attorney, who can't make a compassionate case for what happened. So we're not ever going to live in a world where something like a fetal personhood policy that's carried out as criminalization would be carried out evenly. And I think that's something that makes Americans uncomfortable and why you see in polling that

Even Americans, some Americans who see themselves as pro-life have a stopping point, right? Because they say the kind of thing Anthony was saying, which is that that doesn't look like justice to them. Let me go to Barbara in San Francisco. Hi, Barbara, you're on. Thank you. I understand that an embryo is unable to live outside of the womb.

It's a cluster of developing cells. And the fetus is viable, able to live outside of the womb, at least some chance of living. Am I clear on that? I mean, am I in focus on that? Barbara, thanks. Actually, go ahead. Mary, explain sort of kind of generally what we've coalesced around as being the embryonic stage and the fetal stage.

Yeah. So, I mean, embryo and fetus. I mean, so one of the things, just to be clear, is people sometimes use fetus just generically. That's what the Associated Press uses to mean, you know, kind of to refer to developing life at various stages. Of course, obstetricians and gynecologists will use the word fetus after a certain point in pregnancy to signal a different developmental stage than an earlier developmental stage, for example, an embryo.

or a zygote. In either case, I think the color is right that an embryo is not capable of living without a pregnant person, right? Which is one of the reasons it's especially puzzling to think of fetal rights as if a fetus or embryo can survive or thrive without another person, and why we're not primarily thinking about fetal rights

in conjunction with the rights of a pregnant person, right? Because in reality that embryo or fetus is never going to come to term without the assistance of this other person. So it is very weird that that's how we do fetal rights in America. And I think that's one of the things that really becomes clear when you dig into the history is this is a uniquely American history. There are plenty of other countries that think they value fetal life that just don't do business the way we do. So

So I think if you are listening to this conversation and thinking, wow, this just doesn't seem to make a lot of sense, or isn't there a better way of doing this? You're not wrong. And other countries are aware of that, too. Love you are my listeners. You are listening to Forum. I'm Mina Kim.

Kevin writes, prohibition was widely unpopular and was overturned. Personhood at conception is mostly unpopular. Would we see the same happen to it? I mean, I guess, would we even see it adopted if it's unpopular, I think. But

I wanted to ask you about that. We were talking earlier about this, ultimately the goal being that this heads to the U.S. Supreme Court where you have to convince five justices. And we know we have a very conservative makeup on the court. And I just do think there is this overall question from listeners of if something is so unsupported by the electorate, could this happen? Feel free to opine on that, Mary. But I guess the other thing I just wanted to see if you could hit on a little bit is that

What would help the Supreme Court make that kind of a decision in favor of interpreting the Constitution to cover fetuses or embryos? Is it, you know, all of these, this slew of state proposals, even if they don't go anywhere, for example, you know, is it sort of this trail of cases and potential precedents at lower levels in states that would help them in this process? Yeah.

Yeah, I mean, we saw, for example, Justice Brett Kavanaugh and Dobbs saying, well, how am I to ignore that all these conservative states want me to overturn Roe? So you could imagine a future justice saying, well, how am I to ignore all these state laws and state decisions on fetal personhood, right? That would be framing it as sort of giving the people what they want, even if in fact it's not. I mean, it's fair to assume that if our democracy is healthy, then

It will be hard to imagine a world in which a kind of criminal version of fetal personhood is the law for very long because people would seem unlikely to either enforce the laws or to tolerate the laws. So I think really the only scenario in which that isn't true is one in which our democracy isn't healthy. So ultimately, I think when you're thinking of this issue, you're really thinking about what kind of democracy we have. And if we have one, it's reasonable to assume that

personhood will remain kind of a pipe dream rather than a reality. But of course, you know, we live in a moment where the health of our democracy is up for grabs. And also, I would say the legitimacy of the Supreme Court as well. It was badly bruised, I guess, in the wake of Roe because that was so unpopular, the taking away of a constitutional right.

It was, and I think that's obviously dangerous because of course we're now in a moment where courts are sometimes being ignored, where courts can't sometimes serve as a check on other branches of government.

So I think that's something obviously that courts should be aware of, right, that courts' ability to sort of settle constitutional crises depends on people's respect for and faith in the courts. And that's been shaken, as you said. Yeah. Talk about the cases related to abortion that are before the Supreme Court now that you're watching closely.

Well, there's one that was argued this term that would potentially result in the defunding of Planned Parenthood, particularly the ability of states to kick Planned Parenthood out of their Medicaid programs. There are other court cases that are further down the pipeline. For example, there's one before Judge Matthew Kazmarek of Texas at the moment that tries to revive a tax on Bipapristone. We're expecting a filing from the Trump administration in that case by next week.

There are other cases in the pipeline as well that focus on the Comstock Act, as well as these kinds of cross-border disputes, one between Louisiana and a New York doctor, another between Texas and a New York doctor, that we expect may end up before the U.S. Supreme Court as well. So there's one case that's already there and others that seemed almost inevitably to arrive in the years to come.

So there's something that you write in your book, you say for half a century, and you're talking about the head of a major organization in the pro-life movement, that they've seen themselves as fighting an era-defining human rights battle. It might take another generation or more to secure judicial recognition of fetal personhood, but that does not trouble the activists who had successfully destroyed Roe v. Wade. They have played the long game before. Why is that so important to understand?

Well, I think it's easy to imagine when you're hearing about fetal personhood that this is a fringe cause embraced by people who will never get anywhere. And I can't tell you how often before Roe v. Wade was established,

erased how hard it was for people who supported abortion rights to believe me that it would happen. I was the person, you know, the kind of Paul Revere saying, it's coming, it's happening. This has been going on for a long time. Look at the changes to voting rights and campaign finance that have been accomplished in the name of eliminating Roe. And people didn't believe it. So I think the thing that's important to recognize, whatever you think about this issue, is

is that the Overton window is shifting quickly and that the changes that are being wrought to the democracy to accomplish it are happening as we speak. And so at a minimum, we have to take this seriously and pay attention in a way that we might not have before Roe's demise. Newsy Davis is Mary Ziegler. The book is Personhood. Thanks, Caroline, for producing this segment. And thank you, as always, to listeners. I'm Nina Kim.

Funds for the production of Forum are provided by the John S. and James L. Knight Foundation, the Generosity Foundation, and the Corporation for Public Broadcasting. Support for KQED podcasts comes from Landmark College, offering a fully online graduate-level certificate in Learning Differences and Neurodiversity program. Visit landmark.edu slash certificate to learn more.

I just think Jesus was what we would now define as Christ.

We're not physically close and we're not like that emotionally close either. So join me and some amigas as we have easy conversations about hard things. Catch Hyphenation from KQED Studios wherever you get your podcasts and on YouTube. Hey, it's Glenn Washington, the host of the Snap Judgment podcast at Snap.

We tell cinematic stories that let you feel what it's like inside someone else's skin. Stories that let you walk in someone else's footsteps. Storytelling like you've never heard. The highs, the lows, the joys, the pain, the twists, the turns, the laughs, the life. Snap Judgment drops each and every week. Listen wherever you get your podcasts.