The Dangerous Concept of Fetal Personhood

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. 

For more information, check out Well...Adjusting: https://podcasts.apple.com/us/podcast/well-adjusting/id1649386566

Transcript

Jennie: 0:26

Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. Hi rePROs, how's everybody doing? I'm your host, Jennie Wetter, and my pronouns are she/her. So y'all, this week is a little bit sad. Last week was the last week for Amani, who is a fellow at Population Institute. You may remember her, she was on the podcast, it feels like forever ago, talking about a report she co-authored called Behind Closed Doors. I'll make sure to include that episode in a show notes so that you can listen to it because she was wonderful on it along with Maniza at PI. The two of them are amazing, but this is about Amani. She is leaving to join the Peace Corps and I am so excited for her and her new adventure and 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 right now. It was so wonderful to have her to talk about things related to reproductive justice. She was such a movie buff; I always had the best movie or TV show suggestions from her. She was just a real bright light and I am very sad to see her go even if I am so excited for her new adventure and to see what she is going to do next because, like I said, she is a star and she will shine bright and whatever she does next will be amazing. So Amani, we're going to miss you. I'm going to miss you, but I cannot wait to see what you do next. So best of luck and go change the world. I think the other thing I want to talk about in my introduction, again, there's still so much happening around DC, but I don't want to focus on that today. Just my heart is heavy and just worrying about my community because there has been a lot of presence in the part of DC where I live. So I'll just leave it at that. The other thing I did want to talk about, though, was the State Department recently released their annual human rights reports, and the administration really gutted them, y'all. According to NPR, they cut out about two-thirds of the content. We were expecting them to cut out reproductive rights and LGBTQ rights, but they went even further and just eliminated the whole section on women's rights, including GBV, sexual violence, reproductive rights, just that whole section. So, like, women's rights, gone. I think the other thing that is really important to note is they decided to only include one example of a violation in a country. So, it's really hard to get an idea of the scale, right? So, if a country had one violation and another country had 100 violations in that same area, you wouldn't be able to tell the difference because there would only be one example shown in the reports. So it's just, again, this administration chipping away at human rights around the world. And it's hard to understate the importance of these human rights reports. We'll do an episode on it so that we can talk about it more in depth. But just this is really devastating to see them get gutted in this way because they are a really important document, not just in the U.S., but around the world for companies, for nonprofits. So, many people use them when they're just hiding countries to work with and just to have an idea of what is happening around the world. And so, this is a really huge loss to not have the U.S. doing the human rights reports in the same way that they have been done in the past. Okay, with that, I don't want to dwell on that too long because it is really sad. And this is, again, going to be another one of those kind of heavy episodes. So, man, sorry, y'all. We're going to have like a bummer introduction and then a bummer episode, but it's a great conversation. So please, please, please Stick around. We're going to talk about fetal personhood in this episode that is the next in the series on abortion later in pregnancy. This is the fifth of our six episodes on abortion later in pregnancy that we are doing with Patient Forward. Y'all, I can't believe we are almost at the end of this series. I've had so much fun doing it, and I am so grateful to everybody at Patient Forward for helping us with this, particularly Bonyen, who has been amazing and helped me organize everything and even help with the outline for the conversations that we're having. She has just been a rock star and I am so grateful for all of her time in helping put this together. So Bonyen, thank you so much. Everybody at Patient Forward, thank you so much. Okay, so like I said, today we're going to talk about fetal personhood and criminalization and the viability line and why all of this is so important right now. To do that, I have two wonderful guests with me. First, we have Karen Thompson with Pregnancy Justice and then we have Garin Marschall with Patient Forward. And it's a wonderful conversation. So I hope you will enjoy it. So here's my conversation with Karen and Garin.

Karen: 5:41

Thanks for having us.

Garin: 5:42

Hello.

Jennie: 5:43

So, before we get started, let's do a quick round of introductions. Let's go ladies first, Karen.

Karen: 5:49

I'm not a lady. I would, I hope I'm an incorrigible broad. I'm trying to bring back broad. But hi, I'm Karen Thompson. I am the legal director at Pregnancy Justice. I have been at Pregnancy Justice for about a year and a half and I'm Prior to that, I was a senior staff attorney at the ACLU of New Jersey. And prior to that, I was a senior staff attorney at the Innocence Project.

Garin: 6:17

And I'm Garin Marschall. I use he/him pronouns. I'm the co-founder of Patient Forward, which is a strategy and advocacy organization fighting for a future where all pregnant people are met with support, not stigma or punishment. We focus on policy and advocacy, culture shift, and supporting access around later abortion.

Jennie: 6:37

So, today we're talking about something that might not be something that people immediately think of in our series of abortion later in pregnancy. We're going to talk about fetal personhood, which may feel to some people like a totally separate thing. But maybe we should start with like what it is and why are we talking about it today?

Karen: 6:56

Yeah, so I'll start and then I can turn it over to Garin. But fetal personhood is really a simple idea. And I think fetal personhood as a tagline is not great because it sounds weedy and it sounds legal and it's just not. What it is saying that a fetus has the same rights as you and me, basically. It just says that any pregnancy is actually a person. So that anything that a person is entitled to legally is something that that fetus is entitled to legally. And when we have what basically is this kind of dance-off between rights, between a fetus and the person who's carrying that fetus, the person who's carrying it is always going to lose. And we're going to talk about this, I'm sure, later today, but the rights do not stay in one place and the harms don't stay in one place. So, anything that is being done to preserve the rights of the fetus with the giant scarecrow that you can't see, those are going to be rights that have to come from somewhere because there's not a living and breathing person. And the somewhere is the person of the pregnant person's body. So, it's a dangerous concept just as a basic matter, but as we'll talk about later today, it continues to get bigger and more dangerous and being used in the most extreme situations that are threatening the bodily autonomy and rights of all people who are pregnancy-able, and particularly women who are being faced with centuries of misogyny that are piling on on top of that.

Garin: 8:33

Yeah, and I'll just add, I think a lot of times there's this conflation of how people feel about pregnancy how individuals feel about pregnancy, even how providers feel about pregnancy, and a developing pregnancy even later in pregnancy. And then what we're talking about, which is the law and the power of the state. And so, obviously, everyone is welcome to, in a way, like humanize or understand a pregnancy at different points. But what we're talking about is what happens when that gets codified into the law and the impact that it has on people's lives. And then, and today we're going to talk a little but about, like, not just with regard to abortion. I think that's the other thing is that there's this misconception that giving rights to fetuses is only a threat to abortion and I think that is such a big problem that that's the only way we're thinking about it. And so, you know, part of the work that Karen and I have been doing over the last, I don't know, year or so in having some of these conversations is about kind of, like, waving this flag that's, like, hey, this is about a lot more and there's a lot more people being impacted by it and I think it is, you know, in a way the the duty of the reproductive rights, health, and justice movement to take responsibility and accountability for, like, what the things we're putting into the law mean for people who maybe are not trying to get abortion. "Without fetal personhood, pregnancy criminalization could not exist," and that is a quote from a great report from Pregnancy Justice, but I do think that it's important to just make that link for people. This is actually the idea that's fueling people being put in prison. And we need to put a stop to it.

Jennie: 10:21

Yeah. And I mean, I guess that starts with Roe, right? That put the idea of viability into the law and created this line. So, what is kind of this relationship between fetal viability, gestational bans, and fetal personhood?

Karen: 10:35

I think it's important to note that ACOG, which is the American College of Obstetrician and Gynecologists, are very clear— it's you know on their website— that the idea of viability is not one that they want to ever be used outside of a medical context and even within a medical context it has a very specific meaning which is what kind of medical treatment you need to give to a fetus at particular parts of times of development because obviously if a fetus is four months old there's things that you cannot do versus a fetus that's eight to nine months old, right? So they are creating their own lines so they know what kind of needles to have, what kind of medicines can be given. They're very specific things tied to that. But when you remove it from that medical context and kind of drop it in wholesale into a legal context, that is not what is happening because lawyers aren't doctors, judges aren't doctors, prosecutors aren't doctors. And so you're talking about a medical treatment protocol within the context of rights and that they don't, it's at apples to oranges. They don't overlap. They don't make sense when they're taken out of their context. And so it's also just tricky because what has become so normalized for us, like, oh, yeah, there's a viability. There's a trimester framework in row. That was great. It's actually soft personhood. It's just a very different way of introducing the same harms. And so, it's something that we're both trying very hard to kind of change people's thinking around.

Garin: 12:07

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: 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 protections for a fetus, started long ago in some ways. And so I think that that's something that we just want to flag, like where the specific concept of viability is really, you know, it's a misuse of a medical concept. It doesn't really mean anything specifically. It's kind of like when a fetus could potentially survive outside of the pregnant person's body. Well, you know, we don't really, a doctor can't really tell you when something is viable in that way.

Karen: 13:11

And I think the other piece of it— see here we go because this could go on and on because there's so many ways that it impacts us that we don't necessarily see, you know, in the kind of like bright light— but the thing that I think is really interesting is reading some of the decisions around Roe and what judges were saying at the time about creating this framework. And one of the things they basically said were like: well, if we give them those kinds of rights, they have to have a limit right so it's not even playing a role in in like ostensible, like health of the child, interests of the child, it literally is just like, you can't have too many rights 'cause then you'll be, you will be uncontrollable. And I think, you know, that's kind of one of the foundations of why fetal personhood and viability lines are being used because it's really about controlling bodies. It's about giving excuses to control and, you know, getting rid of these is also creating autonomy for everybody. So, it's a really serious rising tide moment.

Jennie: 14:14

And I guess one of the things that this made me think of as you're talking about rights, and just because it happened last week, this is unrelated to our conversation mostly, but the State Department released their annual human rights reports, and they got rid of the entire section on women, including reproductive rights and gender-based violence and all the things. But basically, women's rights, full stop, is gone. And again, they don't want us to have too many rights.

Karen: 14:41

And what better way to do it? I mean, aside from we've also been told that not voting, but what other way to do it than to criminalize people's bodies? And also to have the government say, we have control of the product of your womb.

Garin: 14:57

And I do think that Roe in a way, being such a big decision, did have these echoes across time and across the law with regard to entrenching this idea and this legal standard. And so, to your point, to your question, yes, this in a way— with regard to abortion and its pervasiveness and use of the law— was really supercharged by the Roe decision. But if we look at the Roe decision, it's interesting. When you look at the... for instance, if you listen to some of the oral arguments... there's a lot of discussion in those oral arguments about fetal personhood, about does this mean that, like: are you asking us to recognize the rights of the fetus? And, like, what would that mean? And so, what we see in the Roe decision is actually, like, as far as I'm concerned, a bit of a punt. They kind of were like, no, it doesn't have rights, a fetus doesn't have rights, but we're going to do this viability thing that kind of creates this idea of fetal personhood within the context of abortion. And they hoped, I think, maybe even they believed that it would stay there. But as Karen was pointing out, like, these legal concepts don't stay in their tight little package. They're, you know, they're like a fungus. They grow wide and then they're really hard to get rid of.

Karen: 16:22

And we were, you know, Garin and I were with some fellow advocates, like a small group recently, like talking about these things. And one of the first questions was 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 like the law really matters anymore. And you know, I was just like yes, it does matter, it does matter and I think, you know, I think we got back to that place of it does matter because of exactly what Garin said like: it's ours, too, and even though it was invented by a particular group of people to do very particular groups of things, in the words of Octavia Butler, you know, "all that we touch we change and all that we change changes ourselves." And so, the things change whether people want it or not. And so, we can use the law to make the change. That's all that has ever been done when it comes to getting more and more people their rights. And because we are in this moment of lawless law, what history has shown us from the '60s and before is that when you break a law that is lawless, you are actually creating a law that is righteous. And so, I think that we have a moment right now to just refuse I mean this is getting it's sad that this is getting to be a cliche but we can refuse to comply with these things that are not actually legally legitimate right. And making an abortion a homicide that is a death eligible policy, while out of the other side of your mouth talking about the interests of the child; that is not that is not logical or right or good. And I think, as Garin said, we need to start saying that with our whole chest.

Garin: 18:06

Yeah. And I do think the project here is, or, you know, the strategy should maybe be not to, like, let them do it. In other words, we can simply assert and recognize rights that we do actually have, you know, that are pervasive throughout our legal system and our Constitution, and not leave it up to anti-abortion advocates or the far right to interpret the Constitution in a way that serves them. We can simply disagree with the fact that people don't have rights. And I think that, like, there is this, like, shyness around doing that. And it's like, you know, we get to interpret this document too. And maybe, like, the best part of the American project, if there's any good part left, is this idea of a shared debate and shared ownership over meaning. And I think that we just need to be a bit bolder about deciding what these things mean.

Jennie: 19:03

I'm so glad you raised that because I feel like a lot of what we see even sometimes from people who are supposedly pro-abortion is there's this compromise spot we can we can compromise and the anti-abortion people and the pro-abortion people can all agree on this one thing and and you know the the voices and talking heads out there like this is the one this is it we can draw the line right here. And if there's anything I hope people have learned from this, it is that that is not true. But Karen, do you have anything else you would like to say around that area?

Karen: 19:39

No, I mean, you can't compromise with a boot in your face. Right. And there's no way that you can, like, you have to. Yes, you can compromise about like the color of a dish towel. And are we or are we doing like chicken or spinach for dinner? Like everything else, there's no room for compromise. And I think, you know, that's a real question that I think that we've movement has to ask itself, are we aiming at compromise? Are we aiming at status quo? Or are we going to be aiming together to create the world that we want to be for everybody that is safe, that is healthy, and that is keeping us all protected and having dominion over our bodies? And I think that is what our goals should be. And we need to pull our sights to that.

Garin: 20:31

And with regard to compliance, I just want to flag that viability lines being written into abortion policies into state constitutions is to me a form of compliance it's complying with a decision that was made in the '70s by you know, a group of men before women even had the right to use credit cards. So it's like, we simply don't need to comply with this outdated idea of how these rights, you know, could look and how they're exercised. And so I think when we see people in a way like retreat to this row framework, to this viability framework, because it's like a comfortable blanket we can wrap ourselves in, it's because we're failing to imagine something different. And so, I think that we can, as advocates, you know, in some cases, I think if we're thinking about lawmakers and leaders, we can actually lead that conversation; imagine something different and put different things in place.

Karen: 21:32

The absurdities that are showing up in these guys, you know, the idea, like, we have to compromise. But meanwhile, like, there are people who are introducing laws that are absurd. So if, you know, we're okay with advancing this idea that abortion should be a death eligible offense. And if we are okay with saying that a fetus should have a medical marijuana card, then I don't understand how saying, listen, "there should be no viability line," feels like a stretch. You know what I mean? The one thing that the anti side has is like the complete and utter lack of shame, right? So I'm not, and what I am not going to be shamed by are people who are cutting off all the funding for kids to get the health that they need and for pregnant people to get the health that they care that they need to have a healthy pregnancy, should they so choose to have that health care or if they need to have access to it. Having a world where they can they don't live in a maternity desert, right, if you care about those things, then those things should be happening, but the thing is that's not happening that's being taken away. And at the same time we're being told all of this best interests of the child. I'm not going to be shamed by those people. And we shouldn't be shamed about having these conversations.

Garin: 22:55

We also think there's this like really arbitrary version of compromise that we've bought into somehow. And it reminds me of this Veep episode where they're trying to like figure out what their policy on abortion is. And Dan is just looking at a board and yelling, pick a number. And that's literally where we are. He's just like, pick a number, just pick a number. And so like this idea that the correct compromise is somewhere between a total abortion ban and no abortion ban whatsoever and is just like some number of weeks or some arbitrary idea like viability is uncreative at best. And so, I think that we can, first of all, I understand, I think there's a lot of people that are like: this all sounds great but, you know, when we get into a situation where we're trying to get votes or whatever, we have to compromise. And you know my first question is, well, do you? Like, have you tried not? I don't know. But the other thing is that I think that we haven't led a conversation that would allow people to imagine something different. And so, until we do that, we are simply pre-complying, pre-compromising, compromising before we're even in the room at the negotiating table.

Jennie: 24:09

What a great preview for next week's episode. We're going to be talking about the implications of the "One Beautiful Big Bill," or whatever the terrible bill was. But let's turn back to this week's and: how have we seen the implications of viability limits on pregnant people since Dobbs? You know, we talked about how it's not just about abortion where we're seeing the impacts. What else are we seeing right now?

Karen: 24:35

What Dobbs did is it just dropped all of the guardrails. So, all of the places that had things teed up that would be made worse or kind of aggregated by viability lines then became aggregated by viability lines. So suddenly the language was about, you can't, "unborn child," this and that, no access to care after six weeks, right? Like there's just, I think the language around things changed in the bans that made things a bit tricky. But I mean, we said this at the beginning and I want to say it again. I think that we have to remember that the biggest kind of problem, the those waves in the pool of the, you know, after you throw the stone, they're not really in the abortion space necessarily. And so, okay.

Garin: 25:30

I also just want to flag, there are certainly implications in the abortion space, but we feel in a lot of ways that those are well-trodden, like more people are traveling, more people are being denied care. That is in fact really bad. And there's something that's been happening well before Dobbs, which is that these lines and this, you know, granting of the state power over pregnant people once their pregnancy reaches a certain point has had profound implications for people throughout the country and for the last, I don't know, 50 years or so. And we can talk about some of those ways. And I think we'll get into maybe some specific examples if that's helpful.

Jennie: 26:16

Let's talk about that.

Garin: 26:17

First of all, I'll just, I'll like cover some kind of categories, right? So, we've talked about abortion bans. There's also been, there are these instances where behavior while pregnant can be punished because there's this theory that it endangers the fetus. And so, therefore, that behavior can be investigated and prosecuted. There are situations where we're seeing pregnancy outcomes being investigated. So, if pregnancy simply doesn't end in a healthy birth, a healthy baby then the state theorizes that maybe something went wrong and that there is grounds for some sort of investigation there. And then there's just like more pervasive threats to bodily autonomy and the diminished rights of pregnant people.

Karen: 27:04

But also this idea, I think that prosecutors, so the issues in the spaces that Garin just mentioned, but I think what is related to that is that prosecutors who are prosecuting these cases based on this idea of viability and based on these areas of harm that can be done to a fetus, they are not given a high bar to kind of get over to bring these cases. So because it's just about like, oh, anything that could possibly be in any way detrimental to a fetus, that gets real elastic really quickly. And so, instead of having to say, okay, then there is a child who was born who was harmed in ways A, B, and C, all the prosecutor has to say is that child was exposed and we think drugs bad. So, because drugs bad and because fetus exposed, that is a felony child abuse standard, or because you didn't behave in particular ways, or have as many doctor's appointments, or you researched abortion while you were pregnant and then you had a stillbirth, that means that you didn't behave in a certain way that led to that stillbirth. Now we're going to charge you with murder, right? So, it never stays still. And then it's really low hanging fruit, legally speaking.

Garin: 28:22

And Pregnancy Justice has done a lot of work to document a lot of these cases, both before Dobbs and after. It's hard to compare apples to apples there with regard to numbers just because of the way the research was done. But what we what we do know is that there are a lot of these cases and there's a lot of cases in a few specific states, South Carolina, Alabama, Oklahoma, for instance. And we can we can see those cases coming from interpretations, from court decisions generally, which interpret this sort of expanding, creeping idea of fetal personhood at some point. And a lot of times you see this slippery slope in these decisions where they say, well, we've recognized, in a way, the rights of a fetus in this instance, and so it just stands to reason that we would recognize them here. And then we've recognized them here. And so it just stands to reason that we would recognize them in the case of child endangerment for substance use. And so you see, it is a slippery slope and it's having real implications for people, like hundreds and hundreds of people in Alabama, for instance.

Karen: 29:37

But let's also be clear. I really want to, you know, if there's one thing people take away from today, while we see the most cases in certain states, it is hardly limited to red states. This is, like, a national problem.

Jennie: 29:50

Absolutely.

Karen: 29:50

And so I think we also just have to be, again, be mindful of the way that we've been normalized to this idea that everything that the person does could be interpreted as a harm to a fetus. And we've been, you know, there's Andrea Ritchie, the amazing abolitionist who works on prisons and human rights, you know, has this great line that, "criminalization is the way that fascism manufactures consent." And I think think that that's exactly what we see here. And it's just this idea that anything that you do that could harm a fetus, like when you say, like when you push that really with all your might, then we just get into this space where you can't, you can't come back from that. And so you start to say, okay, you know, it's okay if you arrest somebody for harming someone who's pregnant for reason A, B, and C, but then what that turns into is that someone gets arrested when they're shot and they're pregnant for harming their child. It doesn't stay logical. It becomes just the basis to get illogical. And so, yeah, I kind of went off on a tangent there.

Garin: 31:04

But like, I think we can also like take some specific cases. Like if we, I think maybe some or many listeners may be familiar with the Brittany Watts case, which happened in Ohio. And, you know, Brittany Watts was in this situation where she was seeking medical care, going through a medical event with regard to her pregnancy, and frankly didn't get great care at the hospital, was ultimately sent away, and ultimately experienced a miscarriage at home. Returned to the hospital for care after that, and was subsequently reported to the police by her nurse in that situation. And that's a very typical thing with regard to the sites of criminalization are often hospitals now and care providers. And there's great work being done on that with, like, the Beyond Do No Harm Network and folks like that. But I think that in this case, the interesting thing is that Ohio had already two definitions of viability in their law. So, one was in an abortion law, an abortion ban and viability that was on the books, but also in their criminal code, which said that: a fetus that had reached the stage of viability, not that itself was viable, but it had reached the stage of viability, was a person under the criminal code in Ohio. And so that fueled this investigation. And basically the real question in Brittany Watts' case was initially not, was there a crime committed? It's was the fetus viable or not? And once that case, there was the possibility of that having happened, And having reached that stage, that case was allowed to proceed. She was investigated, etc., and during that prosecution, that question of viability was really the main question. And the judge even noted that there was at the time a ballot measure being advanced in the state regarding abortion. And he pointed to that ballot measure and said, this is the question the state is currently considering. This question of viability and what that means and basically alluding to personhood here. And so while Brittany Watts ultimately was not put in jail or actually, I think, fully criminalized beyond her having to go through this trial, that really came down to the viability, not challenging the idea that it was a person under the law had it been viable. And I think that's the real case is, you know, not only was her life destroyed by this whole thing in a way, but people are then subject to this question of the state and when it's when it's compelling interest takes over and overrides her rights and ability to go through really a terrible circumstance for her, I think.

Karen: 33:53

And there's a similar case in Georgia, just to, you know, underscore the point, which someone was unconscious and bleeding in their apartment, and she had placed the fetal remains in a dumpster, and the police investigated, and when they recovered the remains, she was charged with concealing the death of another person and abandoning a dead body, and those charges were drawn, but only because the autopsy determined that she'd had a natural miscarriage at around 19 weeks and the fetus was non-viable. But Georgia has the Life Act, which went into effect after Dobbs, even though it was passed in 2019. And that's all about full recognition to an unborn child. And so, if that miscarriage hadn't been natural, those charges would have stuck. And she may have actually been liable for something even more serious, like, again, like potentially a murder charge.

Garin: 34:45

But I think, again, it's like it's not I think a lot of people saw that as criminalizing miscarriage. And the important thing is that it's, it rested on this idea of personhood. So it's like, it's criminalizing something that was done to a person as far as the state's concerned.

Jennie: 35:03

I mean, it just shows you hear these stories of people experiencing a miscarriage and instead of getting support and help, they're being prosecuted.

Garin: 35:09

And then I think it doesn't stop with these cases. There's also cases where, where someone's fundamental rights are being overridden because they are have a pregnancy or because the pregnancy is advanced to a certain point. And so, there's recently a case in Georgia with a woman named Adriana Smith, who was pregnant and admitted to the hospital because of headaches, given medication, sent home, but then her condition worsened. And she was eventually pronounced brain dead. But because of that Georgia law, she was kept alive. And the idea or the hospital had some unclarity, I think, with regard to like what the law is and the way that they interpreted it. They felt the need to keep her body alive to gestate that pregnancy until, you know, something had changed effectively. And that underscores this. this issue with advanced directives, where a lot of states, I don't know the exact number off the top of my head, maybe Karen does, but invalidate advanced directives for pregnant people, which says that the state can override what you want to happen with your body because you're pregnant. And so again, why is that? What is the logic that underscores that? And again, we feel it's this logic of there being something that is deserving of state protection such that a person's rights can be overridden.

Karen: 36:42

I think it's a little tricky because they're not classically a fetal personhood issue, but what I do think they represent is the extent to which the autonomy vanishes and there's like a vanishing point, do you know what I mean? So, I mean 10 states invalidate a pregnant person's advanced directives regardless of the likelihood of fetal survival so if you're pregnant and you have a will that can go completely out the door, period. Like, in 10 states. And 19, they also go out the door but it least there has to be a potential for fetal survival not viability but actual survival with continued life sustaining treatment. And then three states actually allow someone's will to be honored if they're pregnant, if they clearly know that they want it to be honored so at least there there's that. But yeah, I think it's important to note this because we have to understand, like, yeah the extremities, like: what are the poles of the conversation? And I think keeping someone who is brain dead alive to gestate a nine-week-old fetus, which is how old Adriana Smith's fetus was, tells us what people are willing and able and wanting to do.

Garin: 38:06

And then there's other cases that we've seen where, you know, someone refuses medical care, either because of their religious beliefs or something, and the state is asked to come in and effectively allow the hospital to force that that person to submit to a cesarean section or a blood transfusion. And again, those rest on this idea that the state can override your fundamental rights. Normally, you have the right to deny medical care and the state can override that on behalf of the pregnancy.

Jennie: 38:39

Y'all, this is so much. And I'm sure the audience is maybe also feeling a little overwhelmed. So let's maybe turn to, I always like to end with giving the audience actions they can take. So, how can they get involved in this? What can the audience do to get engaged?

Karen: 38:57

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 tell them to do. And so if you say, listen, we need you to not roll over if there is an executive order from this administration saying that fetuses have 14th Amendment protections or making fetal personhood the law of the land, the states still have power and the states can do the work that the states need to do to preserve people's rights. And so, we need to make sure that our voices are still being heard, that they're still being raised, that we're submitting comments to bills that are being passed, which every person has the right to do and the ability to do, that we understand that this is an interlocked fight, that this is not a struggle that is just about abortion, that it implicates the rights of folks who are incarcerated, disabled folks. Obviously, from Skrmetti, it very much implicates the rights of trans kids to be able to get gender-affirming care. It really touches on all the things that affect wide swaths of society. So, if you care about Black maternal health, if you care care about making sure that everyone has access to the caregivers and the care that they need, then this is the issue for you. And you need to make people responsible for ensuring that our rights remain intact.

Garin: 40:35

And that includes, I think, you know, people that we maybe sometimes look to to sort of fight the fights. So, I think sometimes, you know, we vote for the thing in front of us. And I think it's important for everyone to take a moment to to read the thing in front of you and see if you support it. And if you need help making your way through it, there's a lot of us out here who are happy to talk it through. We also created a tool, a patient forward created a tool called Unpunished Pregnancy. It's at unpunishedpregnancy.com, but you can go through that and evaluate policies that you're being asked to support or that you maybe aren't sure whether they're good or not. Fetal personhood is definitely one of the main things in there that we're looking at, but I think it's okay to ask for something better. I think that's really where I want people to get is you don't have to actually just like take the thing that you're given, which whether that's someone else's interpretation of your rights or a policy that maybe isn't really providing the liberation that people are saying it does. And I think we have to keep asking for more and keep fighting for more.

Karen: 41:41

And it does feel like a lot. I mean, obviously, like we're both in it. So we see sometimes that it feels like a wall. But the other thing is, When we actually get in there, when we show up in courtrooms, when we say, hey, hey, hey, hold up, that is not what this law says. This is not what you can do. This is not actually a crime. There are carve-outs that don't allow you to behave this way. We win. People understand. Prosecutors drop charges. You might have remembered a few weeks back, West Virginia AG was like, we maybe should start having people report their miscarriages to cops. And the noise that greeted that was so loud that other AGs in the state were like, we don't know him. So I think that's what we can do. 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 like they don't have any autonomy to fight back and to make decisions. But we do. And so the only way to get there is to raise your voice.

Jennie: 42:50

Well, Garin, Karen, it was lovely to have both of you on today. Thank you so much for being here.

Karen: 42:56

Thanks for having us. I appreciate it. Thank you.

Jennie: 42:59

Okay, y'all. I hope you enjoyed my conversation with Karen and Garin. Like I said, it is such an important conversation in this moment with criminalization. Really, you're hearing so many more stories breaking through and it is just really important that we are standing for what we believe and not letting these viability lines cause further problems beyond abortion, but into other areas where we are seeing criminalization. criminalization for pregnant people. With that, I hope you enjoyed the conversation and I will see everybody next week. [music outro] If you have any questions, 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 can find us on social media. We're at Repros Fight Back on Facebook and Twitter, or @ReprosFB on Instagram. If you love our podcast and want 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!