The Next Battleground Over Abortion

this is what they call a zombie abortion law. So Michigan's abortion law is actually unusual, not in the sense that the zombie law that was on the books was not enforced during the time v. Wade was our law, but then sprang back into effect. It's also unusual because it was past the one, which was not a kind of common time for states to be passing more sweeping

criminal aboard shan bands. But at the time Michigan lawmakers were enhancing penalties and also expanding prohibitions earlier in pregnancy. I mean, you know, this was also being done at a time when the state was expanding the compulsory eugenic sterilization laws. So that may have been kind of the moment that we were looking at in terms of what produced the law. So the judge's decision, her language was quite strong. Tell us about you know how she came

to her decision. Well, the judge's decision essentially was based on the idea that Michigan has more expansive ideas of liberty and equality than the federal Constitution, and that therefore the results under a Michigan state constitutional law would be different than the one that the US Supreme Court reached in Dabbs. There's so much litigation over abortion in Michigan it's quite confusing. The Court of Appeals has ruled that

this judge's decisions aren't binding on county prosecutors. She disagrees, but that's being appealed to the Michigan Supreme Court. If her decision can't stop county prosecutors from prosecuting abortion providers, which several of them has said that they intend to do, how much of a victory is this, Well, I think obviously this is just round one and this much longer process of litigation. They are multiple lawsuits challenging the constitutionality

of the nineteen thirty one law. There's the question about whether the judges' order is binding on county prosecutors, and we know that in one way or another, all of these diceuses are going to end up at the Michigan States Supreme Court, and so I think the judges' decision is mostly just you know, around fired in that broader conflict that's ending at the Michigan Supreme Court. We all know that sooner or later that's where we're going to

get a more complete resolution of all of this. An amendment on the November ballot would add abortion rights to the state constitution, so that would answer these questions, right. It doesn't really resolve the question of whether, as it stands, the one law violates Michigan State constitution, which is something that the State Supreme Court may have a responsibility to

resolve regardless of the valid initiative. But I think it's it's to say that we will have a lot of action in Michigan for a long time, and I think that makes sense because Michigan is both significant regionally as a place that has offered a worstion access as other parts of the Midwest have not, and also kind of as a Belle Weather because the best pulling we have would suggest that Michigan is a state where a majority of voters would want a worship to be legal, and

yet this state has this law from one that it will likely be enforced notwithstanding what voters may prefer. Do you think that this judge's decision won't stand, then, well, I don't know if it will stand. I think it's just going to be kind of a way station on the way to the Michigan Supreme Court. So I wouldn't be surprised given the composition of the Michigan Supreme Court and some of its past decisions. Um, it wouldn't be a shock to me if the Michigan Supreme Court ultimately

agreed with this judge. All I was saying was that one way or another, we won't really have a final resolution on any of these questions that in full of Michigan State Supreme Court ways. Then I want to turn to another issue which is shaping up to be the next battle ground in the fight over abortion rights, and

that's the issue of fetal personhood. Explain that concept, sure, so. Historically, the anti abortion movement in the United States was not focused on overruling Roe v. Wade in part because the

movement existed before Roe v. Wade came down. The movement was sort of focused at the beginning of this idea of recognizing the personhood of fetuses, which would mean not that abortion was wrong, but that abortion was actually unconstitutional because if a fetis is a person, then that person has rights, for example, to do process in equal protection under the law. That would make abortion problematic at best

and likely unconstitutional. So we've seen in the aftermath of the Jobs decision a lot of anti aborship groups returning of school, which really has kind of been the goal all along. But when Roe was on the books, and I think when the anti abortion movement was more interested in playing to public opinion, even hear a lot about it publicly, even though within the movement it was still

a priority. Now, obviously they're talking about it very publicly and pushing forward in the states as well as potentially at the federal level. Eleven states already have language in their constitutions, laws, or policies granting rights to fetuses. Georgia has the most expansive law on fetal personhood in the country. The statute prohibits abortion after six weeks and recognizes the

fetus as a person at that point. It also provides expectant mothers with a three thousand dollar tax credit per fetus and allows them to file for child support during pregnancy. It even instructs state officials to include fetuses in population counts. I've been talking to Professor Mary Ziegler of u C. Davis Law School. Mary, this george a law seems a bit extreme, to say the least, would it stand up in court? Well, I mean I think that Georgia law,

I mean so far has stood up in court. I mean there have been challenges to that personhood law that we're at least projected by the Eleventh Circuit Courts appeals. And I mean I think the Georgia law is interesting because most personhood measures we've seen so far have basically just been abortion bands. Right, So, for example, South Carolina is now considering a personhood law that's essentially just a

really sweeping abortion ban. George's law is interesting because it seems to be trying to take the idea of fetal personhood. I wouldn't say more seriously, but at least to be more logically consistent. Right that vet this as a person

such that you can send people to prison. It may be a person for reasons that could theoretically benefit a pregnant person or woman, right, But I think the logistics of actually working out how that will all work in the real world is something the movement really hasn't done yet. And I don't even know if a consensus within the anti abortion movement about what fetal personhood is beyond just a mandate to criminalize abortion. Arizona has a law granting

personhood defertilized eggs, embryos, and fetuses. So what does that do if you have a fertilized egg, you decide you don't want to go forward with with a pregnancy, and you have to keep the egg. I mean, it just

raises a lot of questions in my mind. Yeah, I mean, I don't know if this has really been worked out, right, because I think that when the anti abortion movement first developed this argument for personhood in the nineteen sixties, it was entirely as an argument against the legalization of abortion.

And and then there was a moment in the seventies when anti abortion leaders were hoping there would be a constitutional amendment recognizing personhood, and at that point, you began to get some conversations about Okay, well we're going to recognize personhood, how are we going to actually implement that, Who's going to be able to take care of these persons. Is the government that's actually recognizing personhood going to do anything or is it going to just offload that responsibility

onto onto women? Right? But you know, the constitutional amendment wasn't going anywhere fast, and so those conversations sort of stopped happening. Beyond the idea of personhood is a kind of rallying cry or a justification for criminalization. So I think we're at a moment now where there's definitely interest in the anti abortion movement in personhood, but not consensus

on what it actually is. As you said before, these fetal personhood laws, that's just a step to saying that can have an abortion even if the mother's life is in danger um, Right, So that's the goal. Yeah, I mean, and I think I think there are a few sali and things about that. One is that personhood is obviously

a national goal. This is not something the movement wants to see stop in states like Georgian Arizona, because the dream obviously if you have some kind of a national personhood mandate is that there would no longer be you know, the federal government allowed to authorize aborship pills, or there'll no longer be aborship available in California and New York.

It would be illegal everywhere. And that's why there's some energy, for example, in an executive order recognizing personhood, or a federal statute recognizing personhood, or even we've already seen petitions filed in the U. S. Supreme Court asking the court to recognize that the idea of personhood is deeply rooted in the nation's history and tradition. So I think long term,

you're you'd see this nationwide push. The other way personhood comes out, as in the rise of this so called abolitionist movement, which is a minority extremist faction within the anti abortion movement that calls for the punishment of women. They argue that, you know, a fetal personhood is a thing that means that the killing of fetuses has to be punished a homicide, just as the killing of anyone else would be, and that anyone involved in that killing,

including women, has to be punished. So there are a lot of move in parts and a lot of disagreements, but I think the ultimate the reason personhood is compelling to aborsition opponents, notwithstanding all these disagreements, is as as a tool to an aborshion across the country, not just in states that theoretically want to do it. In his opinion in the Dobbs case, did Justice Samuel Alito referred

to personhood in any way I mean, not really Justice Alito. Um. People who are personhood proponents like josh Hammer and Joshua Cratick read Justice Alito as kind of giving a wink and a nods personhood. There's nothing that explicit in the Dobbs opinion. Justice Alito does refer to fetus is as unborn children, and he's you know, quoting Mississippi statute when

he does that, but I think it's still strategic. Justice Alito also differentiates a worshion from other substantive due process rights like same sex marriage by emphasizing that abortion is the taking of the life, which some saw as an odd personhood. So I think, you know, you can really read Dobbs either way, and personhood proponents have certainly taken

it as a positive sign. I think that the more cautionary note, at least in the short term for person and proponents as Brett Kavanaugh, who went to some length to say, you know, the Constitution is neutral. It's not pro life or pro choice, which some people took to mean Justice Kavanaugh was not yet ready to hear a personhood argument. Having said that, I think personhood proponents believe that, you know, Justice Kavanaugh may be ready to reconsider, you know,

several years down the road. They don't take that as a sort of permanent to you. They take it as a kind of yellow light in the sense that he's not ready to move quickly on that front. Wouldn't they need some scientific evidence before they would declare that life

begins at conception? Yeah, I mean that there's there's some real challenges about you know, standing and so on in the In the pre ro era, abortion opponents asked to be named guardians at LTEM, either for the fetus is of specific patients or just you know, class action suits on behalf of all fetuses potentially scheduled to be awarded

in particular jurisdictions. The petition before the Supreme Court now also has to grapple with this question about, you know, who's you know who's actually being represented, so that that's going to be an ongoing challenge, and I think obviously there's a certain amount of I think over confidence on the part of the anti abortion movement now in terms of the kind of politics it's practicing, the kind of aspirations it's articulating, because I think the movement, after Dobbs, thinks,

you know, all things that are possible, and that may still not be true, notwithstanding the fact that there's a conservative supermajority on the Court, because if the Court declares that a fetus is a person, then states who passed

laws that protect abortion those laws would be void. Right. Um, So, I mean, and that's really the point, I think, because if you're the anti abortion movement right now, you know that you have laws that you like in a whole variety of places, right but you know that in in America, where travel is common in abortion pills can be bought

on the internet. It's going to be very hard to actually make a meaningful change in abortion rates, especially if, as is the case for the anti abortion movement, you're aligned with a Republican party that does nothing to reduce poverty or the reasons people may seek abortion when they would otherwise prefer to carry a pregnancy to term. Right, So I think again, the movement isn't really turn to

any of those anti poverty solutions. Instead, there's been this escalating effort to prevent people from excessing abortion by any means necessary. So that's why you're seeing some states talk, for example, about barring travel for abortion or expand applying their criminal laws out of state. But it would obviously be easier in many ways if the movement just had a single national band right, and then you wouldn't have

to worry about any of this. You could use the federal government to enforce such a band on, even if state officials were unwilling to do so, And so that makes ironically, it kind of increases the movement's reliance on controlling the Supreme Court, aligning with the National Republican Party, all of these things. We were told we're all just about getting rid of row in a postro America, the anti abortion movement has I think even more interest than

those things. Thanks so much. Mary. That's Mary Ziegler, a professor at U C. Davis Law School. Even before the Supreme Court wiped out the constitutional right to abortion, the prosecution of women suspected of purposefully or accidentally ending a pregnancy was on the rise. According to reproductive rights lawyers.

There's been a movement to use state laws on child endangerment, feed aside or murder to arrest women whose pregnancies ended prematurely, and it may be a harbinger of what's to come. Joining me is Bloomberg Legal reporter Patricia Hurtado. Even before Roe was overturned, there have been cases where women have been executed for miscarriages or stillbirths. Tell us about a

few of those well. One of them is a case involving a woman named Dora Perez who went to the hospital and pat a stillbirth, and later the health authorities reported her to the local prosecutor and she was charged originally with murdering her child for allegedly taking metamphetamine were found in her system, not the child's system, so there was allegations that she had basically killed her child, and murder charges were filed against her. She ended up taking

a plea. She was facing like more than twenty years in prison if she went to trial, so getting the advice of a local lawyer that didn't know anything about this she decided to plead guilty to a lower charge of NaN's laughter for killing the stillborn child. It turns out later when a real defense lawyers found out about her case, she was laying wishing in jail for having guilty to man spatter, and they started taking up her case on appeal to overturn her conviction her guilty plea.

So that was finally resolved after four years. But it's quite a long saga for this poor woman. Four years in prison, and this is in California, which is in

the forefront of protecting abortion rights. Yeah, but Perez was in the Central Valley of California, which is a very rural, very poor, lots of immigrants, and pretty conservative area of California, And so the d A prosecuted her for murdering her stillborn child, and eventually the California Appeals Court concluded that she couldn't have killed someone who was never born because the child was still born, so that it was a misapplication of the law and the law that Dora Perez

and this other woman, Chelsea Becker, were both executed in California by the same DA. He said that it was a law that was created in the nineteen seventies to protect pregnant women from a third party attacking them and killing the fetus. And it all started when a woman, I believe she was a bank teller, she was shot in the stomach by a bank robber and there was such an outcry that her baby died because of this bank robbery that they created this statute of the fetal

murder statute. But it only applies to a third party. And what legal experts and abortion rights activists have said is these are misapplications of laws originally designed to protect the pregnant person and their child and now are actually being applied against the pregnant person and giving the fetus the same rights as the parents. Do any states have laws that punish women who get abortions? Yeah, there are states that have a totally outlawed abortions and they're still

fighting them out. Every day we see a new ruling of how the state is interpreting the overturning of Rowe. There's also prohibition against self managed abortions, and these would be women who take those drugs to basically self induced an abortion under a certain time period. There's an efforts underway that is one of the major race women have been using to manage their abortions because it's a lot

more convenient to do it chemically. But of course it only takes place up to a certain period of time it's allowable. What I was surprised to see June was the amount of prosecutions under situations that just seemed like it was bad science and the misapplication of the law. For example, the mothers prosecuted for her baby dying bill born, and they concluded that it was because there was mess syntheta means her system, the mother's system, but there was

none detective in the baby. Her lawyers told me there's no evidence that taking math amphetamine, although I'm not condoning it, but that that would automatically result in the depth of a fetus. And yet the prosecutor proffered and had an expert witness that testified about this, And it wasn't until later that her lawyers were able to take to the appeals court that the baby's umbilical court had been pressed against its neck during delivery, and that's shutting off of

bloods to the child would have killed it. So there's there's a lot of unknowns with miscarriages and stillbirth some of pregnancies and in miscarriage or stillbirth, And a lot of the lawyers for these women say it's un unknowable, and yet these prosecutors are using the law and making conclusions and trying to convince judges to let these prosecutions go for it. It's amazing to me because you know, people don't know sometimes why they have a miscarriage. How

were these women discovered so to speak? Was it their healthcare providers? Yeah, there's an indication now we have in the case that this people might have remembered it. From May, there was a woman named Lazelle Herrera in Texas and she was arrested and charged with the murder for a self induced abortion. Obstensively, I understand that she was apparently taking you know, some medication like methopress down to enter pregnancy.

She went to the hospital and we understand from the local district attorney who indicted her for murder that he was informed by hospital staff. Now, the thing was extraordinary about Lazelle Herrera's case, which was quickly made public by an abortion rights activists and who came to her aid, I mean, this woman was being held on murder charges and something like five hundred thousand dollars dale in jail, and allegedly she was reported because Texas has this vigilante

law called Senate Bill eight. But that's a civil statute that allows people if they believe someone is helping someone get an abortion, they can file a suit and file a claim. But it's not a criminal statute. And yet here's this poor woman what zal Herrera was prosecuted for murder and the d A got an indictment against her for murdering her fetus for a self induced abortion. But there's a difference between a criminal statute and a civil statute like SBA. Eventually there was such an outcry he

had to drop the charges. But the idea that he could get an indictment based on a civil statute is pretty extraordinary when you think about it. I remember that case. It was incredibly odd that he would even try to do that. Now, as you mentioned, many of the arrests are related to drug use. Yeah, our reportings found out, and it was kind of shocking to me that their statutes on the books designed to protect children, toddlers whose

parents maybe operate a meth lab. So these laws were created child endangerment laws to protect children from you know, say, getting burned or in an explosion, or getting exposed to toxic substances because their parents are making meth amphetamines in the garage. But what these laws are now being used for, which is kind of like that third party example I gave about laws originally designed to protect the pregnant woman and her fetus are now being used against the pregnant person.

And they're saying that the chemical endangerment or the child endangerment is being done by the mother who exposes the child. And some examples were given to me by some of the lawyers. They've had cases where the woman took a valiant that authorized by her doctor, or the woman was like saying, a car accident and took a painkiller, and then there's an episode of a miscarriageter still burst inexplicably right, And then the woman goes to the hospital and then

suddenly they asked her what did you take? And then she says, well that I took the prescription drug medication given to me by my doctor, and they say, ah ha, but the mother is taking it for herself. And one court opinion I saw that analyze this said, if we take this to the logical conclusion that the prosecutor had operated under, then it would mean that any mother who even takes an aspirant might face prosecution for endangering the child under this theory, which is not what the laws

were designed to do. But it's becoming that the unborn fetus is being given fetal personhood at the same level

as the pregnant person. Abortion rights and reproductive rights lawyers have told me this is now going to possibly throw everything into an uproar because you'll have is, you might have a mother within a topic pregnancy, and now they may not be able to perform the abortion that's necessary, would never be a viable fetus, and the mother's life may be in danger because of this new thinking that fetal personhood, it's the pregnant woman's life equated the same

way as the fetix. About women have been arrested or charged from two thousand six to two thousand twenty for their actions during pregnancy. These lawyers cities women. These are the lawyers and the trenches and their advocates for women say, listen, how is it that this is happening? But not only is it happening, that's happening at an escalated rate, and they say that this is part of this whole effort

not only to undo row, but also the push. You can see that suddenly fetal personhood is a fundamental right, that the fetis has the same right as its mother, and that you're gonna apply laws that originally we're designed to protect the pregnant person from attacks by an outside third party, and now you're going to use them against the pregnant person. So those are the kinds of things that we've seen that are being used currently and have been used on an increasing basis. It's kind of staggering.

Thanks pat. That's Bloomberg Legal reporter Patricia Hurtado, and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every week night at ten BM Wall Street Time. I'm June Grosso, and you're listening to Bloomberg