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available in all states. Hi,

1:09

I'm Dahlia Lithwick. This is Amicus

1:11

Slate's podcast about the courts,

1:13

the law, and the Supreme Court.

1:15

And I'm Mark Joseph Stern, Slate

1:17

senior writer. This

1:20

week's show features Schrodinger's Dahlia,

1:22

wherein she is both

1:24

here and not here. For

1:27

the first part of the show,

1:29

I'll be talking to Leah Litman,

1:31

University of Michigan law professor, co

1:33

-host of Strix Grootney, and author

1:35

of the brilliant new book Lawless.

1:37

We're going deep on the developments

1:39

in two high stakes cases that

1:41

stem from those rendition flights to

1:43

El Salvador. One is the

1:45

conflict over Kilmar of Brego

1:47

Garcia, who is still imprisoned overseas.

1:50

The other, a dispute in Judge

1:52

James Boseberg's Washington, D .C. courtroom,

1:54

where articles two and three

1:56

of the Constitution are also on

1:58

a collision course. In

2:00

one corner are two federal judges

2:02

trying very hard to get

2:05

the executive branch to follow court

2:07

orders requiring information, candor, and

2:09

facts. In the other is

2:11

the Trump administration, which seems

2:13

hell -bent on defiance. The executive

2:15

branch has to respect basic principles

2:17

of due process. Like, this is

2:19

not a game of chicken where

2:21

we back down from the Constitution.

2:23

Like, that's not how this works.

2:26

After my conversation with Leah,

2:28

Dahlia will hop back into

2:30

the amicus host chair for

2:32

a fascinating and honestly deeply

2:34

worrying interview about the escalating

2:36

efforts to establish fetal and

2:38

embryonic personhood in American law. But

2:48

first.

2:52

I spent Tuesday afternoon in a

2:54

courtroom in Greenbelt, Maryland, watching

2:57

Judge Paula Senes grow visibly exasperated

2:59

as our friend and yours,

3:01

Trump Department of Justice lawyer Drew

3:03

Ensign, Provericated, obfuscated, and tried

3:05

to make the word facilitate mean

3:07

something other than it does. This

3:10

was the latest hearing, in the case

3:12

to bring home Kilmar Abrego Garcia, the

3:14

Maryland husband and father, whom the government

3:16

disappeared to a brutal torture prison in

3:18

El Salvador, despite a court order that

3:21

should have prevented his removal. And

3:23

on Wednesday, Judge James Boseberg

3:25

ruled that probable cause exists

3:27

for criminal contempt proceedings against

3:29

Trump administration officials who apparently

3:31

defied his orders last month

3:33

to halt the renditioning of

3:35

Venezuelan migrants to that same

3:37

Salvadoran prison under the auspices

3:40

of a very old, very

3:42

bad, and very rarely used

3:44

wartime law, the Alien Enemies

3:46

Act of 1798. By Thursday

3:48

night, Senator Chris Van Hollen

3:50

from Maryland had been turned

3:52

away from Seacot, the so -called

3:54

Terrorism Confinement Center in El

3:56

Salvador, but then was photographed

3:58

meeting with Kilmar Brego Garcia

4:00

at a hotel hours later. A

4:03

note, neither a drink at

4:05

a hotel with a senator

4:07

nor Pam Bondi repeatedly calling

4:09

you a terrorist on television

4:11

actually constitutes due process. The

4:13

fact remains that those three flights

4:16

on March 15th, carrying around

4:18

200 young men, including Abrego Garcia,

4:20

to a black site created

4:22

in partnership between Trump's White House

4:24

and President Buquilea del Salvador, continue

4:27

to be a horrifying harbinger

4:29

of where all our constitutional rights

4:31

are heading. Joining me to

4:33

discuss this lawlessness is Leah Litman.

4:35

She's a professor at the

4:37

University of Michigan Law School. She

4:39

teaches and writes on constitutional

4:41

law, federal courts, and federal post

4:43

-conviction review. Leah is also co

4:45

-host of our chosen family sibling

4:47

podcast, Strix scrutiny, and author

4:49

of the brand new book, Lawless,

4:51

how the Supreme Court runs

4:53

on conservative grievance, fringe theories, and

4:55

bad vibes. Welcome back to

4:57

Amicus Leah. Thanks so much for

4:59

having me. I'm going to demand that

5:01

as my intro everywhere. Just so you know,

5:04

academic conferences, anywhere, right? Like

5:06

co -host of the podcast that is

5:08

The Chosen Family of Amicus, author,

5:10

forthcoming author of Lawless, et cetera,

5:12

et cetera. Anyways, loved it.

5:14

Thank you. And we're really happy to

5:16

have you back now. You will

5:18

be some sunshine in a dark week,

5:20

I guess, not to put too

5:23

much pressure on you. But, you know,

5:25

we have seen a lot of

5:27

escalation from the Trump administration in the

5:29

Rodrigo Garcia case in the last

5:31

few days. And of course, we've also

5:33

seen major developments in Judge Boesberg's

5:35

case. But before we get there, can

5:37

you fill us in on what's

5:39

happened since the Supreme Court ruled last

5:41

week? Yes, it was just last

5:44

week. that the government must, quote, facilitate

5:47

Abrego Garcia's return. So

5:49

after the Supreme Court notably

5:51

denied the Trump administration's request

5:53

to put on hold Judge

5:55

Senes' entire order, Stephen Miller

5:58

announced that the administration had actually

6:00

unanimously prevailed before the

6:02

Supreme Court. The Supreme

6:04

Court said the district court

6:06

order was unlawful and its

6:08

main components were reversed 90

6:10

unanimously. This was news to anyone

6:12

who could read, but based

6:14

on that understanding, the administration basically

6:16

proceeded to do what it

6:18

would have done in the event

6:20

the court actually ruled for

6:22

them, which is Jack Squat. So

6:25

the administration did deign

6:27

to file briefs in the

6:29

status updates that Judge Senus

6:31

had requested, but The status updates

6:34

just said Mr. Obrego Garcia

6:36

is alive. Sorry, can't tell you

6:38

anymore. No further updates. They

6:40

never bothered to file these briefs

6:42

on time. And

6:44

then they filed this outlandish

6:47

document in which they

6:49

claimed that the Supreme

6:51

Court's order and their

6:53

interpretation of Judge Zenas'

6:55

order is that to

6:57

facilitate means only to remove

6:59

those domestic obstacles to Mr.

7:01

Abrego Garcia's return, that is,

7:03

they don't actually have to

7:05

do anything to get him

7:08

out of the El Salvador

7:10

prison. All they would have

7:12

to do is if he just

7:14

miraculously somehow showed up on our

7:16

shores. they would have

7:18

to remove these non -existent obstacles that

7:20

he was never challenging and that

7:22

don't exist to let him in.

7:24

It's just totally nonsensical. So that's

7:27

their position. It was fascinating

7:29

to watch the face of

7:31

Judge Cines as the Justice Department

7:33

made this argument on Tuesday.

7:35

I would say her facial expressions

7:37

as this definition of facility

7:40

was presented to the court are

7:42

about what yours would be

7:44

if someone said that Taylor Swift

7:46

is vastly overrated. Listeners can't

7:48

see this, but it is a

7:51

mix of contempt, disgust, and

7:53

disbelief. that such an outrageous claim

7:55

is being levied. I mean,

7:57

truly, this definition comes out of nowhere. Nonetheless,

8:01

the White House has launched the smear

8:03

campaign against Rodrigo Garcia. Attorney

8:05

General Pam Bondi has called him

8:07

a terrorist. One of the

8:10

top MS -13 members who is illegally

8:12

in our country and a terrorist.

8:14

Leah, can you remind us

8:16

what evidence actually exists, proving that

8:18

Rodrigo Garcia is a terrorist

8:21

or a gang member or any

8:23

kind of violent criminal at

8:25

all? Yeah, so according

8:27

to the U .S. Court

8:29

of Appeals for the

8:31

Fourth Circuit, absolutely no evidence

8:33

whatsoever. So the government

8:35

has never bothered to put forward

8:37

any evidence to substantiate any

8:39

of these allegations. The

8:41

documents or whatnot that Bondi

8:43

and others have revealed

8:45

certainly don't say anything to

8:47

this respect. I think one

8:49

of them gestured to the idea that maybe he

8:52

had rules of cash on him, but that was

8:54

just a jacket or something. The

8:56

evidence does not exist. They have never

8:58

bothered to provide it beyond

9:00

their grotesque say so,

9:03

and stipulation. So

9:05

it's always interesting to compare these

9:07

statements that the Trump administration makes

9:09

on TV when the cameras are

9:11

rolling in the Oval Office with

9:13

what the Justice Department is saying

9:15

in court filings. It's a fascinating

9:17

split screen. I feel like the

9:19

rhetoric is actually converging now. What

9:22

we hear from the Justice Department

9:24

sounds more and more like it's

9:26

being dictated by Trump officials. I

9:28

totally agree. And it also brings

9:31

me back to the first Trump

9:33

administration because in the most recent

9:35

series of hearings, the government lawyer

9:37

basically wanted to point the judge

9:39

to the statements that El Salvador

9:42

president Bukele made in the White

9:44

House meeting that had been televised

9:46

as the basis for why the

9:48

federal government could do nothing to

9:50

secure Mr. Obrego Garcia's return. And

9:52

Judge Cines was like, yo, you

9:55

ever heard of the rules of

9:57

evidence, buddy? Right? They're

9:59

a thing. You can't do that.

10:01

And it takes me back to the

10:03

first Trump administration because because recall, then the

10:05

Trump administration was all apoplectic that you

10:07

could ever point to a tweet, a

10:09

statement Trump made to the media

10:11

in order to invalidate the travel

10:13

ban. And now it's like, well,

10:15

sometimes we get to do that

10:17

so that we don't actually have

10:19

to swear or provide you a

10:21

declaration. to the court

10:24

that would substantiate any of this

10:26

is just utter nonsense. I

10:28

guess we should also note

10:30

that initially when Abrego Garcia filed

10:32

suit through his family and

10:34

lawyers, the Justice Department acknowledged

10:36

that he was deported due to an

10:38

administrative error, that it was a mistake.

10:40

But the two attorneys who acknowledged that

10:42

mistake had been put on leave at

10:45

a minimum. of them was formally fired.

10:47

And one of them reportedly has now

10:49

been fired. And Stephen Miller started going

10:51

on TV claiming that it was not

10:53

a mistake that he was the right

10:55

man deported to the right place. And

10:58

now the Justice Department has stopped acknowledging that

11:00

this was a mistake. It seems to me

11:02

like Stephen Miller is maybe actually picking

11:04

up the phone and calling the Justice Department

11:06

and telling them what to say. Is

11:08

that like an over read of the situation?

11:11

Or he's shadow writing their briefs

11:13

and they just write, like, put

11:15

whatever gloss on it. You know,

11:17

it takes me back to Matthew

11:19

Kazmyrik where supposedly, right, someone else

11:22

authored the Law Review article that I

11:25

don't know. He drafted, but then didn't put

11:27

his name on. Yeah. And we

11:29

should note, unlike Matthew Kazmarek, Stephen Miller

11:31

is not even a lawyer, which

11:33

shows if he is shadow writing these

11:35

briefs. We should maybe just remind

11:37

listeners briefly that there actually is not

11:40

supposed to be this kind of

11:42

direct coordination between the White House and

11:44

the Justice Department. And this almost

11:46

seems quaint, but until, oh, three months

11:48

ago, there was a buffer

11:50

between the White House and Justice Department

11:52

officials. There was a strong norm against

11:55

direct manipulation of legal proceedings by top

11:57

White House officials so that the Justice

11:59

Department could retain independence and integrity. And

12:01

I think we can just deduce that

12:03

that's gone now. Oh, yeah, absolutely.

12:05

I mean, it calls to mind one

12:07

of their many executive orders that

12:09

just directed that the president and attorney

12:11

general's interpretations of the law were

12:13

binding on the rest of the executive

12:16

branch. So who knows? Maybe Donald

12:18

Trump came up with this definition of

12:20

facilitate. We can't rule it out. I'm

12:22

just curious for one moment if you

12:24

think that will have any negative implications

12:26

at the Supreme Court for the administration.

12:28

Will the Supreme Court, which has traditionally

12:31

given real deference to the Justice Department

12:33

because of its legacy of independence, start

12:35

to blink slowly and shake its

12:37

head side to side and say, I

12:39

can no longer trust what you're

12:41

telling me? I wouldn't hold my

12:43

breath just because I think they should

12:46

have already done that. in the

12:48

Alien Enemies Act case, where they halted

12:50

Boseberg's order, as well as in

12:52

the Abrego Garcia case, where they at

12:54

least modified or suggested maybe Judge

12:56

Cini's had to modify her order. By

12:58

that point, the administration's bad faith

13:00

and their unwillingness to actually let lawyers

13:03

do things and say things that

13:05

are grounded in fact and law was

13:07

apparent. And the court

13:09

didn't even acknowledge any of that

13:11

in their written orders, as Justice

13:13

Sotomayor indicated. So I just

13:15

think they're continue getting a pass.

13:18

Yeah, so let's turn then to a court

13:20

that's not giving them a pass, at least

13:22

for now, which is the Fourth Circuit. The

13:25

Fourth U .S. Circuit Court of

13:27

Appeals refused to halt an order

13:29

issued by Judge Cines that allows

13:31

for gathering of evidence and fact -finding

13:33

by Kilmoura Prego Garcia's legal team

13:36

that could Both reveal what steps

13:38

the administration is taking or not

13:40

taking to bring him home and

13:42

also lay the groundwork for a

13:44

contempt finding down the road, right?

13:46

And the Fourth Circuit in declining

13:48

to intervene issued this really strong

13:50

kind of thundering opinion. It

13:52

was actually authored by Judge J.

13:54

Harvey Wilkinson, who is a

13:57

conservative Ronald Reagan appointee. There

13:59

are so many quotes that I could draw

14:01

from, but I guess I'll just start

14:03

here. Wilkinson wrote, the executive

14:05

possesses enormous powers to prosecute

14:07

and to depose with powers come

14:09

restraints. If today the executive

14:11

claims the right to deport without

14:13

due process and in disregard

14:15

of court orders, what assurance will

14:17

there be tomorrow that it

14:19

will not deport American citizens and

14:21

then disclaim responsibility to bring

14:23

them home? And what assurance shall

14:25

there be that the executive

14:27

will not train its broad discretionary

14:29

powers upon its political enemies? The

14:31

threat, even if not the actuality,

14:34

would always be present and the

14:36

executive's obligation to take care that

14:38

the laws be faithfully executed would

14:40

lose its meaning. And here

14:42

he actually cited to Trump's statement

14:44

in the Oval Office that homegrown

14:46

criminals, meaning U .S. citizens, could be

14:49

the next to be deported. Leah,

15:04

your reaction. This is what

15:06

I wanted to see from the

15:08

Supreme Court. I mean, this is

15:10

a federal judge who is looking

15:12

at what Donald Trump is saying

15:14

he's going to do and using

15:16

that. right to assess the executive

15:18

branch's claims. And that is

15:20

the thing that the Republican justices

15:22

on the Supreme Court have so

15:24

far been unwilling to do. And

15:27

I thought Judge Wilkinson's opinion

15:29

was notable not just because

15:31

he was gesturing to all

15:33

of the horrible things, or

15:35

at least some of the horrible things Donald

15:37

Trump was threatening to do. That was

15:39

basically Justice Sotomayor's statement in

15:41

the Abrego Garcia case, as

15:43

well as her dissent in the

15:46

Alien Enemies Act case. And

15:48

I just think, look, if Judge

15:50

Wilkinson is where Justice Sotomayor

15:52

is, what is going on with

15:54

the Republican appointees? It's horrifying. And

15:57

the other portion of Judge Wilkinson's

15:59

opinion I wanted to highlight is where

16:02

he basically doubled down on saying,

16:04

I am not going to just

16:06

give up, on the prospect that

16:08

the executive branch isn't going to

16:10

comply with court orders. And I

16:12

thought that was important because I

16:14

think a fair number of people

16:17

have interpreted what the Supreme Court

16:19

has been doing in these cases

16:21

as kind of backing down

16:23

because they're scared about a confrontation where

16:25

the Trump administration just refuses to comply

16:27

with their orders because they think that

16:29

might happen. And Judge Wilkinson is like,

16:32

no, you can't just retreat from

16:34

basic principles of due process. You

16:36

need to tell everybody that the

16:38

executive branch has to respect basic

16:40

principles of due process. Like this

16:42

is not a game of chicken

16:44

where we back down from the

16:46

Constitution. Like that's not how this

16:48

works. And he pointedly

16:50

cited the Little Rock Nine

16:52

incident where President Eisenhower sent in

16:54

the National Guard to enforce

16:56

a desegregation order. And I think

16:58

there maybe was trying to

17:01

nudge the Supreme Court's Republican appointees

17:03

toward standing up for the

17:05

rule of law the way that

17:07

their predecessors did during the

17:09

post -Brown crisis. Do you think

17:11

it'll work? You know...

17:13

I respect the optimism, Judge

17:16

Wilkinson. We

17:18

need people who still think

17:20

that is attainable to

17:22

keep trying. And I

17:24

appreciated and respect the effort. And

17:26

again, even if it's not successful,

17:29

I think it was important to

17:31

do. More in a

17:33

moment with Leah Litman. This

17:37

episode is brought to you by

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Choiceology, an original podcast from Charles

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Some of the most consequential legal decisions

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19:40

turn to something else that I think

19:42

is another example of maybe won't

19:44

be successful, but was still important to

19:46

do, which is Judge Bosberg's finding

19:49

of probable cause for criminal contempt, right?

19:51

So he issued this extraordinary opinion, laying

19:53

out all of the facts in the

19:56

case about the alien enemy's deportations, clearly

19:58

done in violation of his express orders.

20:00

He found this probable cause, but

20:02

then he gave them an off -ramp

20:05

to purge the contempt. Before we

20:07

get to that off -ramp, can

20:09

you just sort of briefly walk

20:11

us through what Judge Bosberg said

20:13

and why he said it? Yeah,

20:15

so he said the administration acted

20:17

in willful disregard of his orders.

20:19

So he said, look, I told

20:21

you to turn the planes around. You

20:24

didn't. And then when you

20:26

didn't, you came back to me

20:28

with this ridiculous claim that

20:30

because my written order hadn't reiterated

20:32

what I gave in my

20:34

oral order, it didn't apply. That's

20:36

not how judicial orders work.

20:38

And so he basically said, look,

20:40

the timing is clear. You

20:42

knew what the direction was. and

20:44

you just refuse to carry

20:46

it out. And since then, you've

20:48

been thumbing your nose in

20:50

all of our faces, basically saying

20:52

nanny nanny boo boo, no

20:54

back seas, because we sent them

20:56

to El Salvador. You

20:59

know, it's an interesting read

21:01

because it's dozens of

21:03

pages of this really strong,

21:05

stark, you broke the law

21:07

rhetoric. And then at the very end,

21:09

there's like a twist. where

21:11

he says, oh, and by the way,

21:13

you can purge this contempt. Tell us

21:15

what he's doing there. Yeah, so he's

21:18

giving the administration a choice to purge

21:20

the contempt by bringing back the people

21:22

from El Salvador who never should have

21:24

been in El Salvador. in

21:26

the event the administration actually complied

21:28

with his order to turn the

21:30

planes back around. So

21:32

he's saying, look, if you rectify

21:34

your refusal to comply with

21:36

my order by making it so

21:39

it's as if you actually

21:41

complied with my order, I'm going

21:43

to let you go. And

21:45

look, I actually appreciated

21:48

that he did this because

21:50

at the end of

21:52

the day, Judge Bosberg cannot

21:54

get on a plane

21:56

to El Salvador and get

21:58

Bukeli to open up

22:01

the prison and then get

22:03

everyone back on planes

22:05

that he would personally charter

22:07

to bring them back.

22:09

And so they are constantly

22:11

trying to give the

22:14

administration away to

22:16

do what is required of them. And

22:18

I think he probably was

22:20

also doing this to make his

22:23

order stand up in the

22:25

event that they don't purge the

22:27

contempt and his probable cause

22:29

determination and any subsequent events go

22:31

up to the appellate court

22:33

and the Supreme Court. Yeah. And

22:35

I guess too, it's a

22:37

clever way to sort of force

22:39

the United States government to

22:41

possibly exercise custody over these individuals

22:43

and thereby acknowledge that they

22:45

can, you know, ask El Salvador

22:48

to either give them hearings

22:50

or send them back or whatever,

22:52

because what Judge Moser specifically

22:54

said was, assert custody, and

22:56

then we'll talk. And that's the thing

22:58

that the Trump administration claims it can't

23:00

do that we all know is bogus,

23:02

right? Because, of course, there's a contract

23:04

and an agreement with El Salvador, and

23:06

they're all under the ultimate control of

23:08

the United States. Well, also, when Senator

23:10

Van Hollen went to El Salvador and

23:12

was like, show me Mr. Abrego Garcia,

23:15

no, really, I mean it, they

23:17

did. I am curious what you made of

23:19

that. I mean, so, you know, Van Hollen

23:21

went, They delivered Abrego

23:23

Garcia in civilian clothes to

23:25

a third location. But

23:27

then Bukele afterwards tweeted, now

23:30

that he's been confirmed healthy, he

23:32

gets the honor of staying in El

23:34

Salvador's custody. What should we make

23:36

of that? It's not funny. It's not

23:38

cute. But I think the event,

23:40

again, inured to the

23:42

cause of getting Mr.

23:44

Abrego Garcia and the other

23:46

individuals backed the United

23:48

States because it confirmed, right,

23:51

Bukele will do things that

23:53

United States officials request of

23:55

him. It is not impossible

23:57

to get these people out

23:59

of the terrorism confinement center. And

24:02

so all of this is

24:04

just additional public evidence. And in

24:06

my mind, it was a

24:08

needed moment of a reminder that

24:10

public pressure works. The amount

24:12

of attention and pressure on this

24:14

case has been immense. You

24:16

know, it yielded something admittedly small,

24:19

but it confirmed Mr. Abrego Garcia

24:21

is alive. And given

24:23

the administration's obfuscations, like, I was

24:25

unwilling to kind of take their

24:27

word for it just based on

24:29

declarations they had filed earlier in

24:31

the week before Judge Seniors. Really

24:33

quickly, the Supreme Court did something

24:35

big on Thursday. It announced that

24:38

it was going to hear arguments

24:40

in the birthright citizenship case on

24:42

May 15th, moving it to the

24:44

rocket docket. There's a lot

24:46

of confusion and a little bit of

24:48

mystery over actually what the court will

24:50

consider and what it will decide. Can

24:52

you help us understand? So formally, the

24:54

Trump administration asked the Supreme Court to

24:56

take up the issue about whether the

24:59

lower court's injunctions against the birthright citizenship

25:01

wildly illegal executive order should be narrowed.

25:03

So the lower courts had written these

25:05

injunctions to apply nationwide. And the Trump

25:07

administration says, no, no, no, no, no,

25:09

like they should only apply to the

25:11

states that brought these challenges. And so

25:13

they're in effect making this pretty technical.

25:16

argument that would allow them to implement

25:18

the policy without the Supreme Court having

25:20

to say the policy is legal in

25:22

broad swaths of the country. So that's

25:24

formally the legal question that the court

25:26

is going to take up. It is,

25:28

of course, possible that in the course

25:30

of discussing that or writing something on

25:33

it, they will say something about the

25:35

underlying legality of the executive order. But

25:37

formally, that's the question they are being

25:39

asked. So it's possible that the court

25:41

could in deciding this question about the

25:43

scope of injunctions also opine on the

25:45

legality of the birthright citizenship ban. I

25:47

mean, look, these guys have shown they're

25:49

going to do whatever the fuck they

25:52

want. So sure. Right. Like, you know,

25:54

that's my read to and there's been

25:56

a lot of debate about this within

25:58

our circles. So I, you know, they'll

26:00

do whatever they want is, I think,

26:02

the top line takeaway. So

26:04

I have a kind of meta question

26:06

that I think ties into your book, which

26:08

we'll talk more about in the Slate

26:10

Plus bonus episode. And I mean,

26:13

basically, the Trump administration seems to

26:15

be offering what you argue the

26:17

Supreme Court has been drifting toward,

26:19

which is a conception of law

26:21

that's just all bad vibes and

26:23

really pretext for Donald Trump to

26:25

do whatever he wants. And

26:27

it feels like we've gotten here really quickly. And

26:29

a lot of people are still

26:31

catching up to how dark things have

26:34

gotten. And so my question is,

26:36

Does any of this inspire you to

26:38

fight even harder for a conception

26:40

of the law and the judiciary that

26:42

transcends conservative grievances and MAGA extremism

26:44

and endures beyond this nightmare administration? Or

26:46

is it all just so enormously

26:48

horrific that it makes you want to

26:51

just give up? I mean,

26:53

there are moments when it feels overwhelming

26:55

and I feel like what can I

26:57

possibly do? There are no good options.

26:59

But then at the end of the

27:01

day, I come back to this idea

27:03

of, I'm not going to let them

27:05

win. That is just not

27:07

the solution here. And if the

27:09

best I can do is make

27:11

their lives more difficult, make it

27:14

more difficult for them to carry

27:16

out these awful policies that harm

27:18

so many people and wreak such

27:20

grievous harm, I'll take that at

27:22

a minimum, even if I can't

27:24

deliver in short order or over

27:26

the period of my professional life,

27:28

a functioning Supreme Court. I

27:31

am unwilling to give up. And

27:33

that's part of why I noted that

27:35

the Van Hollen moment was a

27:37

needed reaffirmation that public pressure works and

27:39

that we can actually accomplish things

27:41

even in the midst of all of

27:43

these horrors and terrors. And

27:45

I think that's just worth reminding ourselves

27:47

of. Like, the fight is hard. It's

27:49

going to be long. We're not going

27:52

to win everything. But it's

27:54

still a fight worth participating in,

27:56

because the other solution is

27:58

just to let Sam Alito, Stephen

28:00

Miller, and all of their

28:02

buddies get to do whatever they

28:04

want at no cost. And

28:06

that is just unacceptable to me,

28:08

and it is incompatible with

28:11

a liberal constitutional democracy. I love

28:13

that fighting spirit. I feel

28:15

like I have my marching orders

28:17

now. Do the opposite of

28:19

what would make Sam Alito and

28:21

Stephen Miller happy, and they

28:23

want us to give up. So

28:25

we can't. That's simple.

28:27

You know, I'm not even a Virgo.

28:29

I'm not even a Virgo, but

28:32

that petty energy helps sustain me, and

28:34

I think everyone needs to find

28:36

theirs. And that's what I've

28:38

zeroed in on. Leah Litman is

28:40

a University of Michigan law professor,

28:42

host of our chosen family sibling

28:44

podcast, Strick Scrutiny, and author of

28:46

the brand new book Lawless. It's

28:48

out on May 13th. Get your

28:50

pre -orders in now. Thanks so

28:52

much, Leah. Thank you. Leah!

28:55

Will you linger with me for a

28:57

few more minutes in the Amicus Plus

28:59

smokeless cigar bar, please? I would love

29:01

to talk more about your fabulous book

29:03

and how it can provide a really

29:05

important framework for looking at some of

29:07

the big so -called religious freedom cases

29:09

at the Supreme Court this term, starting

29:12

with next week's super significant arguments in

29:14

Mahmood v. Taylor. With that kind of

29:16

request, how could I say no? So,

29:19

Leah will head over to the Rumpus Room

29:21

of Doom for our bonus episode this week.

29:23

I'll share the details for how to listen

29:25

to that at the end of the show.

29:27

We're going to take a short break and

29:29

when we come back, Dahlia Lithwick will be

29:31

in conversation with legal historian Mary Ziegler about

29:33

the new front in the war on abortion

29:36

and how fetal personhood is coming for much

29:38

more than what remains of reproductive rights in

29:40

America. It

29:43

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get 15 % off. This

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week we wanted to return

31:52

to this urgent matter of

31:54

reproductive freedom and reproductive justice

31:56

because while you may recall

31:59

The impact of the Dobs

32:01

decision was absolutely seismic in

32:04

terms of opening the door

32:06

to criminalizing miscarriage, limiting interstate

32:08

travel, prosecuting those who put

32:10

abortion pills in the mail. Somehow

32:12

the story of what has happened to

32:14

pregnancy, miscarriage management, infant mortality

32:16

rates, and the ongoing terrorizing

32:18

of women and their physicians still

32:21

remains a beneath -the -fold story for

32:23

the most part. But the dearth

32:25

of coverage obscures the fact that

32:27

things are ever more frightening in

32:29

the world of pregnancy and pregnancy

32:31

loss and IVF and surrogacy and

32:33

personhood and abortion. And

32:35

our guest is one of

32:37

the nation's experts on the many,

32:39

many ways in which all

32:41

of these new moves together represent

32:43

so many canaries and so

32:45

many coal mines that seek to

32:47

undermine liberty generally. Mary Ziegler

32:50

has been one of our amicus

32:52

stalwarts in understanding the history

32:54

of abortion regulations. Mary is

32:56

the Martin Luther King Jr. Professor of

32:58

Law at UC Davis Law School.

33:00

She's an expert on the law, history,

33:02

and politics of reproduction, healthcare,

33:04

and conservatism in the United

33:06

States from 1945 to the present.

33:08

She's also a Guggenheim Fellow

33:10

and one of the world's leading

33:13

historians of debates in the

33:15

U .S. over abortion, IVF, and

33:17

reproduction. Mary's brand new

33:19

book, Personhood, the New Civil

33:21

War over Reproduction, is out this

33:23

month from Yale University Press. She

33:26

argues that Dobbs didn't represent the

33:28

end of the road for the

33:30

anti -abortion movement, but rather a

33:32

crucial step in a decades -long project

33:34

to establish personhood in the U

33:36

.S. Constitution. This new book

33:38

is a roadmap and a warning

33:40

about what's coming next in terms of

33:42

the freedom of anyone you know

33:45

who can bear a child. Mary,

33:47

first and foremost, welcome back to the

33:49

show. No, thanks for having me back.

33:52

And congratulations on the new book. I

33:54

don't know how you managed to...

33:56

as prolifically as you do and yet

33:58

every one the books feels like

34:00

it is sort of the harbinger of

34:02

some new chunk of what is

34:04

going to be history. So this was

34:07

actually really illuminating and I'm going

34:09

to tell our listeners to run out

34:11

and get a copy. I

34:13

wonder if we can start. And

34:15

maybe this is just an unfair, reductive

34:17

math question, Mary. But

34:19

can you give us a

34:21

sense of what has happened

34:23

in the three intervening years

34:25

in terms of actual people

34:27

losing access to abortion care

34:29

or to fertility treatments or

34:32

miscarriage care? Do we have

34:34

any sense of what the

34:36

actual fallout is three years

34:38

later? Yeah, I mean, we don't

34:40

have a complete sense. One of the things,

34:42

of course, that's happened is that states have

34:44

moved to lockdown information about what's happening, right?

34:46

I mean, we have less information really than

34:48

we ought to have, but we do have

34:51

a sense of what impacts are and are

34:53

not being felt. So, in part,

34:55

there are... fewer impacts than some

34:57

conservative states would like. We're still seeing

34:59

people travel across state lines for

35:01

abortion. We're still seeing people ordering pills

35:03

through the mail. And for that

35:05

reason, there's sort of a mixed picture

35:08

about whether fewer abortions are even

35:10

taking place. The impacts that

35:12

are the most acutely felt, I

35:14

think, are hopefully not intended impacts,

35:16

right? So we're seeing a lot

35:18

of devastation for people who have

35:20

wanted pregnancies, who are being turned

35:22

away, sometimes from emergency

35:24

rooms, as the Associated Press reported,

35:26

even before they're seen, sometimes

35:28

by physicians who worry that the

35:30

care they'd be providing would

35:32

qualify as an abortion, even if

35:35

in fact it's... not maybe

35:37

legally considered to be even by

35:39

conservative lawmakers themselves. So

35:41

we've seen, I think, increasing

35:43

concern about maternal mortality and morbidity.

35:45

There's been a study suggesting

35:47

there's been an increase in infant

35:49

mortality. We've, I think, also

35:51

seen less access to both primary

35:53

care and obstetric and gynecological care

35:55

across a lot of the South

35:57

as some physicians in Midwest. don't

36:00

want to have to face this

36:02

choice between potentially lengthy prison sentences and

36:04

the loss of their medical license

36:06

and refusing care they think is medically

36:08

required. So the upshot, I think,

36:10

has been a bleaker picture for people

36:12

who are pregnant. In terms

36:15

of IVF, I mean IVF has become a

36:17

political third rail in a way it really

36:19

never was before. I'm working on a book

36:21

now about this because I was just fascinated

36:23

by How is it that we

36:25

did not have a culture war about

36:27

IVF for 50 years? And now we

36:29

do. And I think Dobbs

36:31

is obviously not the only answer to

36:33

that, but it's a big part of

36:35

the answer to that. So now we're

36:37

seeing, for the first time, abortion opponents

36:39

lobbying major conservative Christian religious denominations to

36:42

oppose IVF. We're seeing pushes to

36:44

regulate, restrict, or even ban IVF.

36:46

And those, of course, will impact

36:48

people, again, who don't see themselves

36:50

as abortion seekers, right? I mean,

36:52

that's probably the most big picture

36:54

takeaway from Dobs is that, of

36:56

course, Dobs affects people who do

36:58

see themselves as abortion seekers and

37:00

who want abortions, but it also

37:02

affects a lot of other people

37:05

who experience pregnancy who never wanted

37:07

an abortion, don't see themselves as

37:09

abortion seekers and are still seeing

37:11

their reproductive lives upended in this

37:13

way. So this dovetails so nicely

37:15

with the new book, Mary, because

37:17

this is in some sense a

37:19

function of personhood. Right? And the

37:21

going after somebody who had a

37:23

miscarriage and it's ambiguous what caused

37:25

it, the IVF debate, all of

37:28

that is a function of sort

37:30

of failing to see where personhood

37:32

was going to take us. I

37:34

think the thrust of the argument

37:36

in the book is that a

37:38

lot of us, including some of

37:40

us who watch the courts pretty

37:42

carefully, thought that personhood sort of

37:44

burst onto the scene after Dobbs

37:46

or maybe as part of originalism,

37:48

that it's not an old notion.

37:51

But your point is the notion

37:53

that a fetus has personhood is

37:55

an idea that actually predates row

37:57

and that from its inception in

37:59

the 1960s, the anti -abortion movement was

38:01

always a personhood movement. And so

38:04

I wonder if you could explain for

38:06

those of us who think this

38:08

is a newish idea that comes about

38:10

after Dobbs, that it's sort of

38:12

the next mountain to climb post -Dobbs,

38:14

that this was the mountain, and that

38:16

was the case pre -row. Yeah, I

38:18

mean, one of the creepy ways

38:20

you can kind of check this for

38:22

yourself is Google past Republican Party

38:24

platforms. And every single one until 2024

38:27

calls for a fetal personhood constitutional amendment

38:29

starting in the 1980s. But of

38:31

course, the anti -abortion movement was calling

38:34

for fetal personhood even before that happened.

38:36

So the idea always was, and

38:38

it's worth kind of separating, what would

38:40

fetal personhood mean? Because of course,

38:42

fetal personhood can mean lots of different

38:44

things to different people. There may

38:46

be some people, for example, who say,

38:49

I think abortion should be legal,

38:51

and I think a fetus is human,

38:53

or I think a fetus is

38:55

a person. Personhood in this context means

38:57

not only that fetuses and embryos

38:59

have constitutional rights, but It's come to

39:01

me in the United States that

39:04

the way we honor those rights is

39:06

by criminalizing things, whether that's abortion,

39:08

IVF, maybe some forms of contraception. It's

39:10

increasingly meant or equated justice with

39:12

punishment, not with sort of doing more

39:14

for people who are pregnant or

39:17

even doing more for infants, but doing

39:19

more to punish people who are

39:21

seen to have transgressed. So that notion,

39:23

the idea that constitutional fetal rights

39:25

mean voters cannot. enact liberal policies on

39:27

something like abortion or IVF. That

39:29

started as soon as states began trying

39:32

to reform their criminal abortion laws.

39:34

And interestingly, it sort of started as

39:36

like a strategic necessity because abortion

39:38

opponents at the beginning had been saying

39:40

things they just weren't working anymore.

39:42

They were saying, well, if you

39:44

legalize abortion, that's kind of like legalizing

39:46

pornography. People are going to just be

39:49

sexually promiscuous. Or they were saying, well,

39:51

no one really needs abortion because pregnancy

39:53

isn't dangerous anymore. And unsurprisingly, those arguments

39:55

by the 1960s were not really working

39:57

the way they had before. So person

39:59

had started as a sort of like,

40:01

well, what else are we going to

40:03

say? Like if people want this reform,

40:05

let's just say they can't have this

40:07

reform because it's unconstitutional. But then once

40:10

people on the right started making this

40:12

argument about personhood, it took on a

40:14

real life of its own. It became

40:16

really compelling to a lot of people

40:18

who disagreed otherwise on a lot of

40:20

stuff and became kind of the rallying

40:22

cry for social conservatives. for

40:24

about a half a century in

40:26

really remarkable ways. And

40:28

Rowe obviously was a problem for folks

40:31

who believed in fetal personhood because Rowe

40:33

of course said that under the constitution,

40:35

if fetus wasn't a rights -holding person,

40:37

Rowe said there was in fact a

40:39

right to abortion. All of that needed

40:41

to go before you could recognize constitutional

40:43

fetal rights. But getting rid of Rowe

40:45

was never the end game. It was

40:47

not the end game. In the 1960s,

40:49

the goal had always been a constitutional

40:51

decision or a constitutional amendment saying it's

40:53

not up to voters. It's

40:55

essentially the Constitution has already decided that

40:57

abortion can't be legal, that IVF can't be

40:59

legal, that these are questions that the

41:01

courts will tell us the answer to, not

41:03

the voters themselves. So

41:05

this is the car catching

41:08

the dog. in dobs right

41:10

because it goes from I

41:12

think what you've characterized as

41:14

a moonshot right this is

41:16

the dream fetal personhood and

41:18

suddenly it's like oh man

41:20

we've got it and now

41:22

it's Unleashed this kind of

41:24

Pandora's box of all these

41:26

really thorny questions that the

41:28

groups hadn't kind of picked

41:30

their way through. And in

41:32

fact, there wasn't a meeting

41:34

of minds on questions about

41:36

IVF or criminal punishment, right,

41:38

of mothers who seek abortion.

41:40

And so can you walk

41:42

us through how that's starting

41:44

to get played out in

41:46

the States in real time

41:48

without there's not really a

41:50

fully thought out program here.

41:52

It's just, holy crap, we

41:54

just got personhood. Let's go. Yeah,

41:58

so I think what happened in part was

42:00

personhood used to function as... I don't know what

42:02

the equivalent on the left would be, right?

42:04

Like, it'd be kind of like if you could

42:06

have a new progressive constitution that did everything

42:08

you wanted, and that was a way to kind

42:10

of get out the vote and rally people

42:13

and get people to kind of articulate, like,

42:15

if you really could have everything you wanted

42:17

from the Supreme Court and from the Constitution, what

42:19

would it look like? And that can sometimes

42:21

be really powerful, but it's also a way in

42:23

which you're kind of allowed to, like, fantasize

42:25

and dream aloud about things that are never going

42:27

to happen. And when it turns out you

42:29

don't agree on whatever it is means or what...

42:32

impacts would be like that's cool because you

42:34

don't have to figure it out. And

42:36

now I think people realize with Dobbs

42:38

that it's completely possible that the Supreme

42:40

Court could issue a decision saying guess

42:42

what actually fetuses have constitutional rights and

42:44

states can't have valid initiatives or... laws

42:46

liberalizing abortion, like that's not on the

42:49

table anymore. And so there isn't really

42:51

a consensus about, to your point, like

42:53

does that mean if a fetus is

42:55

a person, does that mean we have

42:57

to prosecute women and pregnant people for

42:59

murder when they have abortions? Because that's

43:01

the only way we do equal justice

43:04

to the fetus. Does it mean we

43:06

have to criminalize IVF or not? Does

43:08

it mean that there can be exemptions

43:10

for specific kinds of penalties? Does it

43:12

mean that you even have to punish

43:14

abortion as murder, right? I mean, in

43:16

a lot of states that criminalize abortion,

43:19

the penalties for abortion are different from

43:21

the penalties for murder. Like, is that

43:23

okay? And I think people hadn't

43:25

had to work out the answers to those questions

43:27

and in fact had wanted not to, right?

43:29

Because that was another way to divide a movement

43:31

that like most social movements is already divided. And

43:34

you see these conflicts breaking out all

43:36

the time. I mean, people who probably

43:38

follow this casually have heard stories about

43:40

bills and state legislatures every session that

43:42

claim to be about personhood that define

43:45

abortion as murder and these are presented

43:47

as sort of fringy, which there's some

43:49

truth to, but they're more

43:51

and more of the bills and they're

43:53

not going away because there's this fault

43:55

line now about, do you have to

43:57

punish women? And unfortunately for the anti -abortion

43:59

movement, all these conflicts are unfolding in

44:01

real time. And one of the sort

44:03

of meta questions hanging over them movement

44:06

too, I think, is the movement going

44:08

to be guided by what voters are

44:10

willing to tolerate or is the movement

44:12

going to ignore voters and try to

44:14

seek change kind of by circumventing democracy,

44:16

right? Whether that's asking the federal courts

44:18

to impose things that voters would never

44:20

want or assuming the executive branch can

44:23

do the same thing without the courts

44:25

even intervening. So there's a democracy debate

44:27

in there when you're thinking about personhood

44:29

and there's also a debate about what

44:31

it even means to recognize personhood. And it

44:34

gets weirder and weirder because it turns out

44:36

that a lot of Americans don't. equate personhood

44:38

with punishment, right? If you kind of drill

44:40

down into it, I think Pew Forum did

44:42

a poll like a month before Dobbs came

44:44

down and they found 33 % of people

44:46

said, I think life begins at conception. I

44:48

think a fetus might have rights and I

44:50

don't think abortion should be a crime. So

44:52

there's a subset of Americans who are looking

44:54

at this and being like, what do you

44:56

mean if a fetus is a person I

44:58

can't have IVF? Or what do you mean

45:00

that women might have to be punished for

45:02

murder? Like that's bananas. What does that have

45:04

to do with saying I value life in

45:06

the womb? So I think it's also prompting

45:08

this broader reckoning with like Why is it

45:10

that in the United States, we say that

45:12

if you value feed a life, that means

45:14

people are going to jail? Like that's just

45:16

weird. Other countries don't think that way. It's

45:18

not inevitable that we thought that way, but

45:20

it's increasingly kind of surfacing that that's the

45:22

way we've been doing things with all the

45:24

dysfunction that's producing. I

45:26

want to ask the question

45:28

of what the polling shows

45:30

about how people, I mean,

45:32

it seems to me that

45:35

when we get these stories

45:37

that just explode into the

45:39

headlines about, you know, fertilized

45:41

embryos being destroyed in a

45:43

lab and suddenly, you know,

45:45

we're talking about them as

45:47

though these are people, right?

45:49

Or, you know, stories of

45:51

the police going after somebody

45:53

post miscarriage. It feels as

45:55

though there isn't polling to

45:57

support the idea that the

45:59

of a fertilized embryo is

46:01

a murder. But I wonder

46:03

if the polling doesn't support it, and

46:05

maybe this is your democracy question, is

46:07

part of the game here to just

46:09

keep doing the thing at state Supreme

46:11

Court levels, state legislatures, and change the

46:13

zeitgeist so that people eventually become comfortable

46:15

with the notion that a woman who

46:17

ends her pregnancy or somebody who destroys

46:20

a fertilized embryo is a murderer? Yeah,

46:22

I think that's right. I mean, I

46:24

think that it's not only to change

46:26

the zeitgeist, it's also to sort of

46:28

close off other ways of imagining what's

46:30

happening. Because one of the things about

46:32

the Alabama story that really struck me

46:34

is that you had people whose embryos

46:36

were destroyed, right? And it's weird that

46:39

the legal system was saying to them,

46:41

essentially, either these are people or you're

46:43

just out of luck. Like then nothing

46:45

bad happened to you. And a lot

46:47

of Americans who've no people have gone

46:49

through IVF are like, well, how can

46:51

that be Isn't there a way

46:53

to say, well, yeah, that was bad and

46:55

you experienced a loss, but this isn't something

46:57

that we need to punish someone for? And

46:59

there really isn't a vocabulary for that. So

47:01

I think part of what the personhood movement

47:03

is doing is not maybe trying to change

47:05

people's minds about it, maybe trying to make

47:07

it impossible to imagine that there's another way

47:09

of even talking about what's going on other

47:11

than saying. this person needs to be

47:13

punished, this person needs to be sued, this person

47:15

needs to be sanctioned, which is what's been going

47:17

on. And I think ultimately there's been

47:20

increasingly a trend away from saying we need

47:22

to persuade people at all, right? I mean,

47:24

that's one of the reasons the first thing that

47:26

probably comes to mind when people think about

47:28

personhood is originalism, right? It's because the arguments are

47:31

not being directed to you and me

47:33

or to anyone who's voting. They're being

47:35

directed to John Roberts and Amy Coney

47:37

Barrett, and it's easier to convince them

47:39

that this is the future we should

47:41

have than it's going to be to

47:43

convince most voters who are not even

47:45

happy that Roe is overturned, right? They're

47:47

not happy with where we are now,

47:49

much less eager to go where abortion

47:51

opponents want to take them. So, I

47:53

think there's been a kind of shift.

47:55

That's why the 2024 Republican platform really

47:57

creeped me out because it was reported

47:59

as Donald Trump is

48:02

softening his position on abortion because

48:04

they dropped the fetal personhood

48:06

constitutional amendment. And I thought, no,

48:08

what they're saying is we don't need

48:10

an amendment because we have judges. We don't

48:12

need an amendment because we can just

48:14

get judges to say we already have fetal

48:16

personhood. Because at least when the call

48:18

was for an amendment, you need to persuade

48:20

people. to get an amendment, right? You

48:22

need supermajority support. You don't need supermajority support

48:24

if you have the Supreme Court. And

48:26

I think that's kind of where we're finding

48:28

ourselves with where the movement's going. I

48:30

didn't expect to actually feel chilled to the

48:32

bone until like two -thirds of the way

48:34

through Mary. So I really appreciate like

48:37

you rushing to the - Beating expectations. Yeah.

48:39

They always. I want to

48:41

get back to originalism because I think

48:43

it's really important. But there's one

48:45

sort of thread that I want to

48:47

pull on for a minute, which

48:49

is the role of both religion and

48:51

race in the personhood movement. And

48:54

I wonder if you'd take those two

48:56

one at a time simply because

48:58

they are so deeply inflected and yet

49:00

they're never present, right, when you

49:02

read. the Dobbs decision. They're everywhere and

49:04

nowhere. And I wonder if you

49:06

can just talk about the origins of

49:08

the thinking around personhood and the

49:10

ways in which race and religion really

49:12

are there from the jump. Yeah.

49:15

So in the 60s, when personhood

49:17

arguments were first getting underway, the

49:20

anti -aversion movement was an almost

49:22

entirely Catholic movement. And

49:24

early arguments against abortion

49:26

were explicitly sometimes Catholic

49:28

arguments. And that was not

49:30

working in part because there was still

49:32

a lot of anti -Catholicism in the

49:34

United States. It wasn't working because

49:36

Catholics were about roughly a quarter of

49:38

the country at the time, so

49:40

many people didn't subscribe to Catholic religious

49:42

beliefs. And also because this was

49:45

a time period when American attitudes about

49:47

sex and reproduction were becoming more

49:49

liberal across the board. So there was

49:51

an effort, I think, to repackage

49:53

what were Catholic beliefs about sex and

49:55

abortion and reproduction. in a way

49:57

that could resonate with non -Catholics and

49:59

yet still, I think, resonate with Catholics,

50:01

right? Still sort of sound grounded

50:03

in the same Catholic religious teachings that

50:05

had prompted some people to speak

50:07

out against abortion. And I should

50:09

also say not all Catholics were opposed

50:11

to abortion, right? While most of the

50:13

early abortion opponents were Catholics, not all

50:15

Catholics were opposed to abortion or even

50:18

a majority under some circumstances. So

50:21

Religion, I think, shaped the way

50:23

personhood was talked about. And

50:25

that continued to be true over

50:28

time, because of course, if you think

50:30

about the modern anti -abortion movement, it's...

50:32

I think predominantly a conservative Christian

50:34

movement, but no longer a predominantly Catholic

50:36

movement. So the religious ideas

50:38

from other conservative denominations, particularly conservative

50:40

Protestants, shaped the way personhood was articulated

50:42

over time, because I think one

50:44

other thing to be clear about, we're

50:46

sort of talking about personhood as

50:48

if it's like a thing. And

50:50

personhood was sort of like a

50:53

Rorschach test for conservatives, right? I mean,

50:55

one of the reasons they liked

50:57

it is because they could make it

50:59

mean different things over time. And

51:01

that was definitely true as the movement's

51:03

religious composition changed. With race, it's

51:05

probably less intuitive to people that this

51:07

would be a story about race.

51:09

But one of the reasons, again, I

51:11

think early personhood proponents were arguing

51:13

essentially that fetuses were like people of

51:15

color. And that was always an

51:17

analogy that was drawn, but what they

51:19

meant by that changed as racial

51:21

politics changed and as the anti -abortion

51:23

movement became more conservative. So at the

51:25

start, the general idea was white

51:27

Americans cannot worry about the effects of

51:29

history. on groups at society's

51:31

margins. What really counts is

51:33

if you're physically vulnerable and politically

51:36

powerless right now. So

51:38

the early anti -abortion movement was making

51:40

this argument that really equality should be

51:42

focused on people with disabilities, elderly

51:44

people, and the unborn child, right? And

51:46

that to a lesser extent people

51:48

of color, but that people of color

51:50

and women and groups that had

51:52

been historically subordinated were kind of getting

51:54

too much attention for that past.

51:56

And that wasn't really the point. Over

51:58

time, you began to see

52:00

anti -abortion groups borrowing from affirmative

52:03

action opponents and saying the real

52:05

harm in racism is categorizing

52:07

people. It's not subordinating people. It's

52:09

categorizing people by race, not

52:11

treating them as individuals, which is

52:13

what affirmative action was doing. And

52:16

abortion opponents began saying, that's what abortion

52:18

is too. It's treating the fetus as a

52:20

fetus and not as a unique individual

52:22

with rights. And over time,

52:24

you know, the more race became a

52:26

kind of mass incarceration story, the

52:29

more abortion opponents began saying

52:31

the ultimate kind of victims of

52:33

discrimination in America are crime

52:35

victims, right? Who were imagined to

52:37

be white middle -class crime victims.

52:41

the unborn are the ultimate victims of

52:43

crime, right? So increasingly there's a kind

52:45

of equality story that's being told that's

52:47

resonating with conservatives that's moving further and

52:49

further away from what we conventionally think

52:51

of as civil rights, right? But it's

52:53

saying that's in fact what we mean

52:56

by civil rights. And you'll still see

52:58

these stories now. I don't know if

53:00

people remember during the height of the

53:02

Black Lives Matter protest, there was a

53:04

campaign called Black Unborn Lives Matter, right?

53:06

So this kind of race analogy

53:08

is still 1000 % with us. And

53:11

it tells you a lot, I think,

53:13

about our racial politics when you drill

53:15

down into what people mean when they

53:17

talk about personhood. Right. And this is

53:19

at the heart of how Clarence Thomas

53:21

thinks about it still, right? I mean,

53:24

I think that it is so, so

53:26

powerfully motivated by his thinking about race.

53:28

And so it's hardly something that is

53:30

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by location. Excludes Alaska and Hawaii. Let's

54:07

return now to my conversation

54:09

with Mary Ziegler. I

54:11

would love you to pick

54:14

up on what you started

54:16

to say about originalism, which

54:18

is that originalism and personhood

54:20

don't sort of intuitively make

54:22

natural bedfellows for some of

54:25

the obvious reasons, which is

54:27

nobody was thinking about fetal

54:29

personhood when the 14th Amendment

54:31

was drafted. I guess

54:33

I would love for you to

54:35

sort of help me understand

54:37

how they get braided together in

54:39

a way that makes it

54:41

look almost like effortless when Justice

54:43

Alito allies all of those

54:45

sort of built intentions in Dobs.

54:48

And then I think maybe

54:50

the ways in which marrying those

54:52

two, I mean, you make

54:54

the point, that's how you persuade

54:56

judges, right? You persuade originalist

54:58

judges by saying, oh, this is

55:00

originalist. It doesn't matter what

55:02

the people think. But that isn't

55:04

intuitively the obvious move. It

55:06

was an effort. Oh, 100%. Yeah,

55:08

I mean, there'll be a

55:10

lot more scholarly response to the originalist

55:12

arguments for feudal personhood than there's been.

55:15

But there's a reason that there haven't

55:17

been that many scholarly originalist arguments for

55:19

personhood until recently, right? It's not like

55:21

nobody was doing it, but it's just

55:23

really hard to get around a lot

55:25

of the problems with the argument. I

55:27

mean, to start out with to your

55:30

point, no one who was ratifying the

55:32

14th Amendment talked about abortion much at

55:34

all that we can find. No one

55:36

who passed criminal abortion laws talked much

55:38

about the constitution that we can find.

55:40

And the anti -abortion movement of the 19th

55:42

century didn't seem to think that it

55:44

was compelled to do anything to advance

55:46

fetal rights at all. So... all of

55:48

the relevant players in a story you

55:51

tell about originalism aren't doing the moves

55:53

you would like them to do to

55:55

make an originalist case. So,

55:57

I mean, I do think that it's kind

55:59

of a combination of necessity, right? I mean,

56:01

abortion opponents increasingly realized that voters just weren't

56:03

going to go there and they needed to

56:05

do the best they could with the cards

56:07

they were handed, which was the Supreme Court.

56:10

It's also really a story about the conservative

56:12

legal movement, right? The Federalist

56:14

Society of the 80s and 90s

56:16

was less comfortable with Christian

56:18

conservatives than the Federalist Society is

56:20

today, there's much more integration

56:22

of those two movements than there

56:24

was, which means there's much

56:26

more comfort kind of co -signing

56:28

originalist arguments that are maybe not

56:30

the world's most convincing or

56:32

that would lead to potentially kind

56:34

of radical and unpredictable outcomes.

56:36

And that's a story, I think,

56:38

about how the conservative Christian

56:40

legal movement transformed what we think

56:42

of as kind of mainstream conservative

56:45

legal institutions in the United States.

56:47

So that's part of what's going

56:49

on too. I mean, it

56:51

still kind of strains credulity, so I don't

56:53

know if the Supreme Court is going to

56:55

go there. And one of the interesting features

56:58

of the whole originalist pushes, neither do most

57:00

people in the anti -abortion movement at the

57:02

moment. So you may kind of wonder, well,

57:04

what are personhood proponents doing right now? They're

57:06

doing things like wrongful death bills

57:08

in states. They're doing things like fetal child

57:10

support bills in states. They're doing fetal

57:12

homicide bills. This is very much, if you

57:14

remember how the end of Roe v.

57:16

Wade for a long time felt like a

57:18

death of a thousand cuts until all

57:20

of a sudden it was one big blow,

57:22

that's where we are with fetal personhood.

57:24

We're in the kind of drip -drip phase

57:27

of very slowly building a case you can

57:29

take to the Supreme Court. But that's

57:31

very much the end game. And I don't

57:33

know, again, I mean, with the court

57:35

we have, And also the court

57:37

we may be getting, because of course with

57:39

Donald Trump in the White House, we

57:41

may end up with a court that's more

57:43

conservative than the one we currently have.

57:45

I think personhood's very much on the agenda.

57:47

I would love for you to take

57:49

us there because I think you were one

57:51

of the people, as I recall, in

57:53

the immediate aftermath of Dobbs, who was reading

57:55

the person who had tea leaves in

57:57

the opinion and telling us where this was

57:59

going to go. And I

58:01

think sort of baked into

58:03

how you've been answering in

58:05

certainly your book, there is

58:08

this tension about, you know,

58:10

an anti -abortion movement who

58:12

for decades it

58:14

sort of moral credibility on the proposition

58:16

that we don't go after women.

58:18

Like the mother is the victim and

58:20

we're gonna make sure that clinics

58:22

close and doctors are traumatized and that

58:24

there are warning scripts and that,

58:26

you know, whatever we have to do,

58:28

but we're not going after pregnant

58:30

people. And personhood, as

58:32

you said, forces that issue. It

58:35

changes all that. And I wonder

58:37

if you can sort of walk

58:39

us through If there is

58:41

a more and more robust notion

58:43

of personhood that is acceptable to

58:45

the Supreme Court and the courts

58:47

below, what are the

58:50

implications? It's not even just

58:52

criminalizing miscarriage. It's not even just

58:54

going after physicians who put

58:56

abortion pills in the mail. It's

58:58

much more even than that,

59:00

right? I've done some oral histories with

59:02

people in the movement, and they have a

59:04

hard time explaining it, right? Because if you sort

59:06

of start to think it through logically, if

59:10

A fetus is a person like you or

59:12

I, there are no

59:14

exemptions in criminal law for

59:16

women or pregnant people killing

59:18

anybody else. And personhood proponents

59:20

will say things along the lines

59:22

of, well, there are scenarios where we

59:24

have systematically higher or lower penalties

59:27

for certain types of homicides. So in

59:29

some states, if you kill a

59:31

cop, you have face

59:33

different kind of sentence than if you kill

59:35

someone else or a child or something,

59:38

right? So they say we know in law

59:40

how to kind of escalate or de -escalate

59:42

punishment depending on who you kill. But

59:44

then they don't have examples of exempting people

59:46

from all kind of punishment for an

59:48

act. There just isn't an analogy. And

59:51

so you have essentially

59:53

a movement that is

59:55

driven by principles, right,

59:57

by ideology. that

59:59

really point in the direction of

1:00:01

punishing everyone, including women. And then

1:00:03

you have a political reality that

1:00:05

points very much in the other

1:00:07

direction, because if you think it's

1:00:09

unpopular... do what the movement has

1:00:11

already done. If they were openly

1:00:13

punishing every single person who took

1:00:15

abortion pills or ordered them in

1:00:18

the mail, you would see a

1:00:20

backlash unlike anything we've seen to

1:00:22

date. And people in the anti

1:00:24

-abortion movement know this, right? It's

1:00:26

not lost on them. So again,

1:00:28

I think this is a story

1:00:30

not just about how punitive the

1:00:32

movement is, but about kind of

1:00:34

this battle between ideology and political

1:00:36

reality and whether democracy forces the

1:00:38

movement to moderate what it's asking

1:00:40

for. or whether it can kind

1:00:42

of give in to those ideological impulses because

1:00:44

the democracy is so weak that there's

1:00:46

nothing to contain them anymore. That's,

1:00:48

I think, what that struggle is

1:00:50

about. But of course, there are lots

1:00:52

of other unintended consequences too, because

1:00:54

again, like, I don't know what personhood

1:00:57

means. Personhood doesn't mean anything objectively.

1:00:59

Personhood is something that means different things

1:01:01

to different people, has meant different

1:01:03

things in different countries, has meant different

1:01:05

things to the anti -abortion movement at

1:01:07

different points in time. So if

1:01:09

the Supreme Court goes down this road,

1:01:11

We don't even know what all

1:01:13

the questions are going to be, to

1:01:16

be honest, because people in the

1:01:18

anti -abortion movement haven't had to work

1:01:20

them out. So we would literally be

1:01:22

Pandora's box in that sense, right?

1:01:24

I don't think in this conversation we

1:01:26

can forecast every single kind of

1:01:28

question that would come up. Mary, it

1:01:30

seems to me that one way

1:01:32

to get around this fundamental intractable problem,

1:01:35

which is you can't keep criminalizing.

1:01:37

pregnant people and their actions is to

1:01:39

keep focusing on doctors, right? Which

1:01:41

is a legacy of Roe in some

1:01:43

ways, because as we often say

1:01:45

on this show, we forget Roe, you

1:01:47

know, mentioned the word physician more

1:01:49

than it did mother. And Roe was

1:01:51

really about physicians' rights in some

1:01:54

ways. And it's never lost on me

1:01:56

that, you know, both the Miphapris

1:01:58

stone case and the Mtala case in

1:02:00

some ways were more about doctors

1:02:02

than they were about pregnant people. And

1:02:04

I think that we are now

1:02:06

seeing sort of shoved into the mix,

1:02:08

you know, angry husbands who are

1:02:10

going after, you know, estranged spouses for

1:02:13

taking medication abortion, going after the

1:02:15

physician in New York who's putting pills

1:02:17

into the federal mail. So

1:02:19

I wonder if one way to

1:02:21

get around the problem that surfaces

1:02:23

with personhood is to just keep

1:02:25

pretending that the mother has some,

1:02:27

you know, unspecified special status and

1:02:29

go after physicians over and over

1:02:31

again. And is that something that

1:02:33

we've seen a lot of post

1:02:35

-dobs or are those just kind

1:02:37

of outlier cases? No,

1:02:39

definitely. I mean, the argument has always

1:02:41

been... basically that women and pregnant people

1:02:43

don't get it. And it's either that

1:02:45

they don't get it because they don't

1:02:47

understand what they're doing, or they don't

1:02:49

get it because they're coerced. That's the

1:02:52

new argument. There's litigation unfolding, personhood litigation,

1:02:54

a challenge to Minnesota's abortion, liberal abortion

1:02:56

law right now that's based on the

1:02:58

idea pretty much that all abortions are

1:03:00

coerced. This has become a huge talking

1:03:02

point, and that all allies the reality

1:03:04

that of course some abortions are coerced,

1:03:06

but that doesn't mean that all abortions

1:03:08

are coerced, which has become the

1:03:10

talking point. It also doesn't mean, which

1:03:12

is kind of the corollary, that all

1:03:14

reproductive coercion is abortion, right? I mean,

1:03:16

there's lots of evidence to suggest that

1:03:18

people coerce people to remain pregnant, particularly

1:03:20

post -dobs. So I think

1:03:22

that has been the approach, essentially,

1:03:24

to say that women and

1:03:26

pregnant people are not actually making

1:03:28

these decisions themselves. One of

1:03:31

the kind of takeaways from that is that

1:03:33

the movement is trying to expand the dragnet,

1:03:35

not just to include physicians, But

1:03:37

to include all the other people

1:03:39

who are participating in this alleged

1:03:41

misleading or coercion, right? So we've

1:03:43

already seen threats to use laws

1:03:45

on aiding or abetting or conspiracy

1:03:47

against people in abortion seekers support

1:03:50

networks. There's legislation that's being considered

1:03:52

this session that would go after

1:03:54

abortion funds that support or defray

1:03:56

costs for people who are traveling

1:03:58

for abortion donors to abortion funds,

1:04:00

right? So if you have. contributed

1:04:02

to that kind of organization, websites

1:04:05

that provide information about how to

1:04:07

get medication abortion, not even websites

1:04:09

that just sell medication abortion, although

1:04:11

those two, but even potentially something

1:04:13

like the Mayo Clinic or something

1:04:15

that provides information about what Mipha

1:04:17

Pristone is, internet service

1:04:19

providers that host the websites. So

1:04:21

I think the impulse to date

1:04:23

has been to go after literally everybody

1:04:25

else, right? It's not just the

1:04:27

doctors. And that's created some of the

1:04:30

tensions you see. It's one of

1:04:32

the reasons why, you know,

1:04:34

the Attorney General of Louisiana is trying

1:04:36

to prosecute a doctor in New

1:04:38

York instead of a person in Louisiana,

1:04:40

because if you're committed to personhood

1:04:42

and you're committed to not punishing women

1:04:45

and pregnant people, you kind of

1:04:47

have to look elsewhere, right? And looking

1:04:49

elsewhere means a lot

1:04:51

of potential threats to the right

1:04:53

to travel, to freedom of speech, these

1:04:55

questions about cross -border conflicts that we

1:04:57

really haven't seen in recent history,

1:04:59

and fueling a lot of that as

1:05:02

personhood, right? I mean, that's kind

1:05:04

of in the backdrop of what we're

1:05:06

seeing in a lot of these

1:05:08

different post -OBs messes. Again, I'm asking

1:05:10

you to prognosticate, and I know it's

1:05:12

not fair, but if not you,

1:05:14

who? Where's personhood gonna come from? Is

1:05:16

it gonna come from Comstock, stroke

1:05:18

of the pen? Is it gonna come

1:05:20

from the Supreme Court in the

1:05:22

next year or two saying, oh,

1:05:24

look at the seeds we planted

1:05:27

in dubs and here comes personhood? Do

1:05:29

you have any sense of how

1:05:31

this is going to become the fully

1:05:33

flowered notion of personhood that's really,

1:05:35

as you said from the beginning, been

1:05:37

the end game since the 60s?

1:05:39

Well, I don't think it's going to

1:05:41

happen in the next few years.

1:05:43

I think if you're kind of watching

1:05:45

for like where the next canary

1:05:47

in the coal mine is, state Supreme

1:05:49

Courts are the places to look.

1:05:51

I mean, the Alabama Supreme Court all

1:05:53

but sent an engraved invitation to

1:05:55

someone to come back and say there's

1:05:57

constitutional fetal rights that are enforceable.

1:06:00

That could happen. The Florida Supreme Court

1:06:02

has been dropping all kinds of

1:06:04

hints that it thinks the same way.

1:06:06

So I think It's sort of like a

1:06:08

funhouse mirror version of what happened with

1:06:10

marriage equality, right, where you had a lot

1:06:13

of state supreme courts weighing in in

1:06:15

certain ways about a claim, and then those

1:06:17

state supreme court decisions were sort of

1:06:19

massaged into an argument for federal constitutional change.

1:06:21

I think that's probably what we're looking

1:06:23

at here. That could change, of

1:06:25

course, if there's sort of for personhood

1:06:27

proponents like an opportune retirement or two.

1:06:29

It's hard for me to imagine you

1:06:32

know, even Brett Kavanaugh at this point going

1:06:34

for fetal personhood, because I think he was

1:06:36

trying to tie himself to the mast and

1:06:38

dobs with his language about, you know, the

1:06:40

Constitution is neither pro -life nor pro -choice. And

1:06:42

generally, of course, Brett Kavanaugh is the sort

1:06:44

of person who like does the thing and

1:06:46

then tries to convince you that he's not

1:06:48

a bad person for doing it. So I

1:06:50

wouldn't be surprised if he did that with

1:06:53

personhood, but it would be a little surprising

1:06:55

if he did it this quickly with personhood.

1:06:57

I think he would sort of need to

1:06:59

give him more political cover. And I think

1:07:01

the dealing within the anti -abortion movement is

1:07:03

that Kavanaugh liked the political cover given to

1:07:05

him by lots of states calling for Roe

1:07:07

to be overruled, right? He made a point

1:07:09

of that in Dobbs. You're sort of like,

1:07:11

how am I supposed to ignore this chorus

1:07:13

of voices saying Roe is bad law? Like,

1:07:15

I'm just, you know, doing democracy here, folks.

1:07:17

I'm just listening to the people. So

1:07:19

there really isn't that chorus with personhood

1:07:22

yet. Anti -abortion groups are trying to

1:07:24

create it in state supreme courts and

1:07:26

state legislatures. So I think what we

1:07:28

will see in the next couple of

1:07:30

years is this affecting people in individual

1:07:32

states first. But all of those

1:07:34

individual state conflicts are being engineered with

1:07:36

an eye to going back to Brett

1:07:38

Kavanaugh, right? Even if we don't go

1:07:40

there, don't see it immediately. I

1:07:42

think people are going to try to go

1:07:44

to SCOTUS sooner. Like this Minnesota case is

1:07:46

going to, whatever is going to happen is

1:07:48

going to happen. It's going to go to

1:07:50

the 8th Circuit, which is not the worst

1:07:52

place to be if you're abortion opponents. And

1:07:54

it might go to SCOTUS, but I don't

1:07:57

know if SCOTUS is ready for it. And

1:07:59

I don't know. It's a really interesting question.

1:08:01

Like, I mean, you would imagine SCOTUS would

1:08:03

just find a way to get rid of

1:08:05

it, right? Like somebody won't have standing or

1:08:07

something. If they don't want to go there

1:08:09

yet, they may just sort of find a

1:08:11

way to kick the can down the road.

1:08:13

But you'd never know with these people, right?

1:08:15

So my guess would be... This is going

1:08:17

to be a state thing before it's a

1:08:19

federal thing, but I was very publicly wrong

1:08:21

about the timing of Dobbs. Like, I think

1:08:23

I wrote a New York Times editorial about,

1:08:25

like, why, you know, like, you can't push.

1:08:27

John Roberts, like, he's going to go, the

1:08:29

pace he's going to go, and Dobbs was

1:08:31

decided like five minutes later. So my sense

1:08:33

of how quickly the Overton window is shifting

1:08:35

has proven wrong in the past and may

1:08:37

once again prove wrong. So. Yeah. I mean,

1:08:39

I guess worth noting that it was Brett

1:08:41

Kavanaugh who was like, nothing in this opinion

1:08:43

should be construed to say that interstate travel

1:08:45

would be burdened. That would be crazy, right?

1:08:47

So, ha ha ha. I guess I want

1:08:49

to stop for one second before we sign

1:08:51

off. and center the

1:08:53

stories that are getting lost

1:08:55

in the coverage. There

1:08:57

are women who are being

1:08:59

turned away from emergency rooms. There

1:09:01

are people, we talked to

1:09:04

Amanda Zyrowski a year ago, going

1:09:06

septic in the parking lots.

1:09:08

Is there still a sense

1:09:10

that this is a real

1:09:12

exigent? urgent story that is

1:09:15

fundamentally changing the way we

1:09:17

organize our reproductive lives or

1:09:19

is it one of those

1:09:21

things where the zone has

1:09:23

been flooded with shit and

1:09:25

almost nothing breaks through and

1:09:27

with every passing day we're

1:09:29

a little bit more inured

1:09:31

to the sort of human

1:09:33

catastrophe. And as you said,

1:09:35

you know, the maternal health

1:09:37

outcomes and the outcomes for

1:09:39

babies. I mean, nothing good

1:09:41

happening in medical schools in

1:09:44

red states right now, nothing

1:09:46

good happening in terms of

1:09:48

actual suffering and loss of

1:09:50

services. Is anything

1:09:52

capable of breaking through, Mary, or

1:09:54

we just moved on to

1:09:56

tariffs? I think things are

1:09:58

capable of breaking through. I mean, I

1:10:00

think part of what's happened after

1:10:02

DOBS is that the people with the

1:10:04

privilege to do the most have

1:10:06

kind of accepted that there are workarounds

1:10:08

for them because there are, right?

1:10:10

I mean, abortion numbers haven't gone down.

1:10:13

And the reality is that Republicans

1:10:15

hold the power to change

1:10:17

that tomorrow, whether that's people in

1:10:19

the Supreme Court, whether that's

1:10:21

Congress or whether that's Donald Trump.

1:10:24

So do I think that if Trump announced

1:10:26

that there was going to be no

1:10:28

more telehealth option for Mipha Pristone, that that

1:10:30

would be below the line? No, I

1:10:32

don't. Do I think if SCOTUS got a

1:10:34

decision about can Louisiana prosecute a New

1:10:37

York doctor, that would be below the line?

1:10:39

No. So it's kind of a mixed

1:10:41

back. I think we've underestimated how much people

1:10:43

still care about this issue, which is

1:10:45

a story Republicans told us after the 2024

1:10:47

election that Kamala Harris running on reproductive

1:10:49

rights was a bust because it turns out

1:10:51

Americans just care about how much eggs

1:10:53

cost. There was truth in that

1:10:55

story. I think there's also something profoundly

1:10:57

wrong about that story, which is I

1:10:59

thought both Harris and Biden did a

1:11:02

terrible job explaining the stakes of the

1:11:04

election for reproductive rights. They

1:11:06

essentially were saying, Donald Trump's bad, he gave

1:11:08

us the end of row. That was

1:11:10

true. But then a lot of voters were

1:11:12

like, okay, but I mean, you're not

1:11:14

going to do anything about it, Kamala Harris.

1:11:16

Like you can't protect row and federal

1:11:18

law. And Donald Trump has told us he's

1:11:20

not going to do anything about it.

1:11:22

He said he's going to just leave it

1:11:24

to the states. So I think there's

1:11:26

a real profound complacency among people who can

1:11:28

do something about it. But that complacency

1:11:30

is rooted probably in a lie, right? So

1:11:32

if it becomes clear that Donald Trump

1:11:34

is going to do something about it, and

1:11:36

the status quo gets worse again, and

1:11:38

it gets worse again in ways that

1:11:40

affect the people who've been able to work

1:11:42

around Dobbs so far, I think we're

1:11:44

going to see that it matters even more

1:11:46

to people than we already think. So

1:11:48

I think there's a story in which, you

1:11:51

know, we are buried in the wave

1:11:53

of crap, but We will

1:11:55

surface again if we see the

1:11:57

wave getting much, much higher than

1:11:59

we previously imagined. And I think

1:12:01

that's more likely than not, although

1:12:03

I think predicting the Trump administration

1:12:05

on these issues is pretty hard. I

1:12:07

would be surprised if there aren't significant

1:12:10

national changes at some point in the

1:12:12

next four years that affect people who

1:12:14

haven't been touched by this as much

1:12:16

yet. Mary, I'm going

1:12:18

to ask you the question I

1:12:20

end with on almost every show

1:12:22

at this point, which is my

1:12:24

sense is that listeners want to

1:12:26

be told by someone as smart

1:12:28

as you what they ought to

1:12:30

be doing and where to direct

1:12:32

resources and energy and efforts and

1:12:34

what... think in the face of,

1:12:37

as you're suggesting, and I really

1:12:39

want to lift this up again,

1:12:41

we're in a different world, both

1:12:43

with medication abortion, we're in a

1:12:45

different world, it's not the world

1:12:47

of surgical abortion, we're in a

1:12:49

different world in terms of person.

1:12:51

But what are you telling folks,

1:12:53

given that the landscape is really

1:12:55

changing in RFK Junior, God

1:12:57

knows, and the FDA, God knows,

1:12:59

what are you telling folks that they

1:13:01

can do to put actual skin

1:13:03

in the game and to try to

1:13:05

protect the rights that they have

1:13:07

seen eroded just in the last few

1:13:09

years. I mean, I think obviously

1:13:11

that the usual things like donating to

1:13:13

causes and voting really matters. One

1:13:15

of the things I always think of

1:13:17

as a historian is that If

1:13:19

you feel torn right now because you

1:13:21

care about reproductive issues, but you're

1:13:23

also just worried about the health of

1:13:25

democracy, don't be because they're interrelated. And

1:13:28

this is something if you study conservatives

1:13:30

who work on the abortion issue, they

1:13:32

have understood this from the jump. So

1:13:34

they have been involved with voter ID

1:13:36

laws. They were involved in litigating to

1:13:38

change the result of the 2020 election.

1:13:40

They were involved in campaign finance from

1:13:43

the very beginning. So if you sort

1:13:45

of feel that the democracy is struggling

1:13:47

right now and that's where you want

1:13:49

to focus things. And you're worried that's

1:13:51

giving up on reproductive rights. It's not.

1:13:53

It's the same thing, right? I mean,

1:13:55

everybody who disapproves of reproductive rights already

1:13:57

knows this. So it's time we wake

1:13:59

up to that too. So I think

1:14:01

the good news is anything you feel

1:14:03

like doing right now would help the

1:14:05

democracy, including obviously anything supporting people who

1:14:07

do work on Mipha Pristina. It doesn't

1:14:10

need to be that though is the

1:14:12

point. It can be lots of other

1:14:14

things and you'll still be helping. I

1:14:16

love that answer because I think it

1:14:18

really does go right to the heart

1:14:20

of the conversation you and I had

1:14:22

right after Dobbs, which is people being

1:14:24

like, how could this happen? Like, nobody

1:14:26

wanted this. And it was because democracy

1:14:28

itself was kind of too weak to

1:14:30

contain what the public will was on

1:14:32

abortion. So that's kind of got to

1:14:34

be the place that we work. And

1:14:37

as you say, the two are so

1:14:39

inextricably bound up that we have to

1:14:41

start thinking of it in those terms.

1:14:43

Mary Ziegler is the Martin Luther

1:14:46

King Jr. Professor of Law at

1:14:48

UC Davis Law School. She is

1:14:50

an expert on the law history

1:14:52

and politics of reproduction, health care

1:14:54

and conservatism. the U .S. from

1:14:56

1945 to the present. The

1:14:58

terrific new book is called Personhood,

1:15:00

The New Civil War Over Reproduction. It

1:15:02

is out this month from Yale

1:15:04

University Press. Mary, it's always, always illuminating

1:15:06

and yes, slightly chilling to talk

1:15:08

to you. I'm so grateful, really grateful

1:15:10

for this conversation because I think

1:15:13

I learned a ton and I think

1:15:15

I finally put a couple pieces

1:15:17

together that have been just kind of

1:15:19

like pinging around without a home.

1:15:21

So thank you so much for making

1:15:23

time with us today. Yeah, anytime.

1:15:25

I'm happy to make you feel freaked

1:15:27

out anytime you need it. And

1:15:30

that is all for this episode of

1:15:32

Amicus. Thank you so much for listening

1:15:34

and thank you so very much for

1:15:36

your letters and your questions and your

1:15:38

comments. You can keep in

1:15:41

touch at amicus at slay.com

1:15:43

or you can find us at

1:15:45

facebook.com slash amicus podcast. Don't

1:15:48

forget to slide on over to

1:15:50

the Amicus Plus bonus episode right after

1:15:52

this one. Leah Litman is right

1:15:54

now settling into the plush sofas of

1:15:56

the smokeless cigar bar to discuss

1:15:58

her new book and how it can

1:16:00

help us think about a very

1:16:03

significant religious liberty case that will be

1:16:05

argued at the Supreme Court next

1:16:07

week. If you are not yet a

1:16:09

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1:16:28

Burnaham is Amicus's senior producer.

1:16:30

Our producer is Patrick Fort.

1:16:32

Thank you to Katie McMurran

1:16:34

for the field production. Hilary

1:16:36

Fry is Slate's editor -in -chief.

1:16:38

Susan Matthews is executive editor.

1:16:41

And Van Richmond is our senior director

1:16:43

of operations. We'll be back

1:16:45

with another episode of Amicus next

1:16:47

week. Hi,

1:16:57

I'm Josh Levine. My

1:17:00

podcast, The Queen, tells the

1:17:02

story of Linda Taylor. She

1:17:04

was a con artist, a kidnapper,

1:17:07

and maybe even a murderer. She

1:17:09

was also given the title The

1:17:11

Welfare Queen, and her story was used

1:17:13

by Ronald Reagan to justify slashing aid

1:17:15

to the poor. Now,

1:17:17

it's time to hear her real story.

1:17:20

Over the course of four episodes, you'll

1:17:22

find out what was done to Linda

1:17:24

Taylor, what she did to others, and

1:17:26

what was done in her name. The

1:17:28

great lesson of this for me is

1:17:30

that people will come to their own

1:17:33

conclusions based on what their prejudices are.