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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. This may have been a surprising turn of events. The Trump administration took a similar stance as the Biden administration in a closely watched abortion pill case this week. On Monday, Trump's Justice Department asked a federal judge to dismiss a lawsuit that would have drastically restricted access to mifepristone. It's been nearly three years since the Supreme Court overturned Roe v. Wade in their Dobbs decision June 24th, 2022, if you're keeping score.

The anti-abortion movement still continues as evidenced by that case, this despite near total bans in 12 states and gestational limits of six weeks in four other states. They're still going after the abortion pill, but our next guest argues that overturning Roe was never the ultimate goal of the anti-abortion movement. Rather, it has "always been a fetal personhood movement." Joining us now to talk about fetal personhood as well as the news on mifepristone is Mary Ziegler, UC Davis law professor. She's the author of Roe: The History of a National Obsession and the new book, Personhood: The New Civil War Over Reproduction. Welcome back to WNYC, Professor Ziegler. Thank you for joining us.

Professor Mary Ziegler: Oh, thanks for having me.

Brian Lehrer: Before we get to your book, I want to ask you about this latest news. I see you told The New York Times that you find it surprising that Trump seemed to align with the Biden administration on the mifepristone case. How come?

Professor Ziegler: Well, I think it's surprising in the sense that there have been hints dropped by members of the Trump administration that there are going to be limits on mifepristone. Asking for the lawsuit to be dismissed was a bit of a surprise. I think at the same time, we shouldn't read too much into it because what was in this filing was just as important as what was not in this filing.

There was nothing the Trump administration said to defend the substance of rules on mifepristone or to suggest that the anti-abortion plaintiffs were wrong in what they were asking for. This was all about procedure and technicalities. I think the most likely reading of this is simply that Trump isn't ready to make a decision on mifepristone and doesn't want to be pushed into doing that by a conservative attorneys general. He wants to do it if and when and how he plans to. I think it's premature to see this as a big win for mifepristone even if it's surprising in the short term.

Brian Lehrer: In their complaint, the three conservative state attorneys general wrote, "Removing the in-person dispensing protections," which really means in-person requirements, they can't do telehealth, "enabled a 50-state mail order abortion drug economy." That much as a statement of fact is true, right?

Professor Ziegler: Yes, absolutely. It's allowed for states like New York to create what are called "shield providers" that essentially send pills into states even though they have bans. This lawsuit is an attempt not only to shut that down but to establish that an old obscenity law from the 19th century actually bars the mailing of any abortion pill to anyone, including in states like New York, where the abortion rights are protected.

Brian Lehrer: This case is being decided again, as I understand it, in the Northern District of Texas by Judge Matthew Kacsmaryk. Here's how The Nation describes him as a "Trump-appointed Christian fundamentalist." The battle over mifepristone is not over.

Professor Ziegler: No, absolutely. There's not particularly any reason to think that Judge Kacsmaryk will just make this case go away because the Trump administration has asked him to. Kacsmaryk has really deep affiliations with the anti-abortion movement. We may see this case continue to put pressure on the Trump administration to actually say something about whether it thinks the rules on mifepristone are good or not as opposed to just retreating to these procedural technicalities that we've seen so far as the strategy in this case.

Brian Lehrer: I guess this whole case is an example of what you write in your book that "the reversal of Roe was never the US anti-abortion movement's ultimate goal." I'm sure most of our listeners think, "Well, yes," so what was its ultimate goal? What is it?

Professor Ziegler: The idea here is not only that there is a separate human being the minute an egg is fertilized but that that fertilized egg holds the same constitutional rights that any of us do. Abortion opponents take that a step further and say that liberal abortion laws, whether those are state constitutional amendments, ballot initiatives, just regular old legislation, all of those actually violate the federal Constitution.

Voters are not allowed to do that. The same might be true of liberal laws on access to IVF or even contraception. The ultimate goal, if you will, is a Roe v. Wade for conservatives, right? Something that would say, "This is not up to voters. This is not up to states. This is up to the five justices on the Supreme Court who are going to declare that there are constitutional fetal rights."

Brian Lehrer: Right, so proponents of fetal personhood hang their argument on the language in the 14th Amendment. Can you help us dust off the cobwebs here? Remind us, what is the 14th Amendment in this context? We've been talking about it recently, of course, in terms of birthright citizenship. How does it apply to fetal personhood?

Professor Ziegler: Well, so the argument is that the 14th Amendment has different relevant clauses, right? Birthright citizenship is in one clause. The clause that abortion opponents point to involves due process and equality under the law. They emphasize that that part of the Constitution uses the word "person" instead of the word "citizen." They argue that was a deliberate choice because the word "person," they say, applies the moment an egg is fertilized. That was the intention of the framers of the 14th Amendment. This is an argument that looks at what conservatives say was the original meaning of the Constitution. I don't find this to be a convincing argument as a historian, but that's the argument that they're pressing.

Brian Lehrer: Listeners, we can take a few phone calls for abortion law historian Mary Ziegler, her new book, Personhood: The New Civil War Over Reproduction. 212-433-WNYC, 212-433-9692. You can call or you could text. Based on what you just said, it hardly sounds like a new civil war, but that's in the title of your book.

Professor Ziegler: Yes. Well, I think it's new in the sense that it's out in the open. Anti-abortion groups for a long time saw fetal personhood as the dream, the moonshot. Something like, for progressives, a guaranteed minimum income or something that everybody might think, "Well, that's great, but it's just never going to happen," right? Now, we're in a world where it could happen.

We have a very conservative Supreme Court. We have conservative state courts that might want to recognize fetal personhood. Now, for the first time, we're starting to see anti-abortion groups in state legislatures, in state courts fighting with each other and with supporters of reproductive rights about what it means to value fetal life, what that actually looks like, and why, at least in the view of abortion opponents, it requires so much criminalization.

Brian Lehrer: Moving up the timeline to the 1960s before Roe v. Wade, you write that roughly half of all maternal deaths were due to botched abortions. You write, "Abortion opponents saw figures like these as further reasons to suppress the procedure, but they struck other doctors and advocates quite differently if the procedure could be performed safely. Every death due to illegal abortions was a scandal and a tragedy," from your book. As pro-abortion activists began to win state by state and gain the favor of public sentiment, this is in the years leading up to Roe, the counter-movement began. Talk a little bit about those early days and the tension between those two views that doctors or activists may have had.

Professor Ziegler: Yes. Well, the early days of fetal personhood. This was at a time, remember, when the anti-abortion movement was predominantly Catholic and it was particularly strong in the Northeast. It was not yet a movement concentrated in the South and Midwest. That movement began by trying to make some of the arguments that abortion opponents had made for decades, right? Saying things like abortion would facilitate sexual promiscuity or that married women didn't need abortion or that abortion wasn't really necessary because pregnancy was no longer dangerous.

None of those arguments really stopped the momentum of abortion reform. Anti-abortion lawyers began arguing instead that voters just couldn't liberalize abortion laws because doing so would be unconstitutional. This began pretty clearly as a strategy. What was fascinating was once these fetal rights arguments got off the ground, they really seem to strike a chord with a lot of people who were opposed to abortion. They took on a life of their own. They've really been seemingly sincere and, I think, reflective of a whole worldview for a lot of conservative Americans now for, I think, over a half a century.

Brian Lehrer: Joseph in Queens, you're on WNYC. Hi, Joseph.

Joseph: Hey, Brian. I have been thinking about this for a while and I realized something. They're proposing to give women $5,000 for giving birth to a child. If they are proposing that, if they're saying that the child has to be born to receive the $5,000, then they're contradicting their personhood argument, which in some stages like 15 weeks, I believe, at the point of conception.

Brian Lehrer: Or much less. Yes, at conception or six weeks. Well, that's interesting. Yes, there is this natalist movement, as they call it, within the Trump administration. I don't know if that connects with this in any way, but Joseph is pointing out one of the things that that movement advocates is give women money or couples money. If a woman has a child, maybe $5,000 or whatever the number turns out to be. I don't know if that relates to fetal personhood at all, but I guess the caller thinks it might.

Professor Ziegler: Yes, there are some overlaps between the fetal personhood and the pronatalist movements. Well, the fetal personhood movement is a coalition and the pronatalist movement is an even more diverse coalition. You have some people who are primarily concerned about the economics of an aging population. You have people who are concerned about the economics of an aging population and opposed to allowing immigration to address some of those shortfalls.

You have people who are very in favor of traditional gender roles in the family, and what they think that would mean for birth rates. There's some overlap. There's also some disjunctures. I think if you look across American law and across time, not all of our laws really reflect the view that life begins at conception. That's even true in states that claim to endorse that view. For example, we've seen the state of Texas be sued by a prison guard, who was not allowed to leave her station while she was experiencing pregnancy complications.

She sued the state. The state's response essentially was, "Well, that fetus wasn't a person with rights." Even though, of course, in other contexts, the state seems to think very differently about fetal life. We haven't yet seen consistency. Part of that, I think, is because states haven't really felt the need to, right? Even as abortion opponents themselves might have a coherent theory of personhood, they also may not, states have taken sometimes internally inconsistent positions on when and how fetal life matters.

Brian Lehrer: Here's another inconsistency in some of those positions that I think Jay in Brooklyn is going to highlight. Jay, you're on WNYC. Hello.

Jay: Yes. Hi, Brian. My wife and I had our child last year through IVF. We learned so much in the process. The thing that I find bonkers is that, how can anybody say that a group of cells that make up an embryo make up a person with rights? They give you a book where they show you the fetus developing week by week. Even when that first heartbeat is detected, it's just a pregnancy sack.

It doesn't even look anything like a baby. How can they say that an embryo has rights, but somebody with a green card doesn't, or an undocumented person doesn't have any rights? I know some people may argue with that. I'm saying that broadly, but you don't even have to right to protest. They can just pull you off the street, put you in a prison, but an embryo has rights. [chuckles]

Brian Lehrer: Right. We have a snarky text from a listener who asks, "Do only the eggs of naturalized citizens have rights?" Jay, thank you for your call. His mention of IVF, Professor Ziegler, you have this in your book as the support that the political right in this country seems to be rushing toward to save IVF because it was just too politically hot to try to ban IVF while they try to ban abortion, but IVF involves the procedure that the caller was talking about that he went through as a father. That's a contradiction, right?

Professor Ziegler: It absolutely is. I think one of the things we've seen, really, particularly since Dobbs, is there's a divergence between what the anti-abortion movement wants for IVF and what Republican leaders say they want for IVF. Abortion opponents have been really unapologetic since 2024 about targeting IVF and about lobbying Southern conservative Protestant churches to do so, sometimes legislatures to do so, all in the name of fetal personhood.

We haven't seen Republicans take that cause up yet, but we have seen Republicans defeating legislation like the Right to IVF Act and slow walking what they say are protections for IVF. Again, I think, because their base is divided on the issue. I do think the caller is also right that it really complicates the messaging of social conservatives the more their allies in the Republican Party say that rights aren't absolute for lots of other born human beings, right?

I think the initial argument fetal personhood proponents wanted to make is that all human beings are entitled to certain rights and embryos are human. The more you say other human beings are, in fact, not entitled to rights because they're undocumented or because they're just green card holders or because they've engaged in certain kinds of speech, the more strange it seems to say that those rights apply to embryos when they don't apply to all born humans in some people's analysis.

Brian Lehrer: I think the abortion rights movement moved away some years ago, correct me if I'm wrong, from the language that the last caller was using about a new embryo just being a collection of cells that somehow, that didn't work politically. Is that right or wrong?

Professor Ziegler: Yes, there have been a whole variety of different responses in the abortion rights movement to claims about fetal personhood. I think the challenge is that there are any number of Americans. There's sometimes been a divergence in polling about whether Americans think abortion is moral and whether Americans think abortion is a right or should be legal. Obviously, increasing numbers of Americans think abortion can be a moral decision and should be legal, but there's a cohort of people in the middle who are more conflicted about morality. There's also a cohort in the middle that think life begins at conception but that abortion shouldn't be a crime.

I think the challenge for the abortion rights movement has always been to talk about fetal rights in a way that doesn't erase the personhood of people who are pregnant and of women and of other born people like people who are trying to conceive, who have fertility struggles, at the same time, while dignifying that for a lot of people feel life does have value, right? There are people who are struggling with miscarriage and stillbirth for whom that argument like the "bunch of cells" argument might not sit well. I think finding a vocabulary to talk about that has been important for the abortion rights movement.

Brian Lehrer: Last question. This civil war over reproduction as you call it, does it end somewhere or does it just go on and on?

Professor Ziegler: Well, I think the answer really depends on the health of our democracy. One of the striking things, we were just talking about polling, is that Americans have never really wanted sweeping abortion bans. They still don't in states where abortion is criminalized. They certainly don't want bans on IVF either. There's sometimes a disconnect between what we as voters want and the policies we have.

I think there would be a way to stabilize the conflict if we really had policies that were responsive and if our democracy was healthy enough to enact those policies. If you're looking for a way out of this, I think the best way forward is not only to care about policies that make sense to you but also to make sure the democracy is healthy enough to deliver them.

Brian Lehrer: Mary Ziegler, UC Davis law professor and the author now of Personhood: The New Civil War Over Reproduction. We always appreciate when you come on with us. Thank you very much.

Professor Ziegler: Thanks for having me.

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