Fresh Air - An Unprecedented Moment For Abortion, IVF & Fetal Personhood

Episode Date: October 16, 2024

Legal scholar Mary Ziegler talks about the legal battles shaping reproductive rights across the U.S. — including the scope of abortion access and the fate of IVF. And we look ahead at two very different outcomes with the election. "I don't think in the past 50 years we've had an election where the stakes could be as high, simply because Roe v. Wade isn't there as a floor anymore," Ziegler says. Also, John Powers controversial French writer Michel Houellebecq's new novel, Annihilation. Subscribe to Fresh Air's weekly newsletter and get highlights from the show, gems from the archive, and staff recommendations. Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at autographcollection.com. This is Fresh Air. I'm Tanya Mosely. And as we count down to the election, abortion remains a top concern among voters. Abortion rights are on the ballot

in nine states this November. At the same time, since Roe v. Wade was overturned, states like Georgia, Texas, and North Dakota are battling this issue out in court, including the scope of abortion access and whether it should be on the ballot. Joining me today to talk about access, the fate of in vitro fertilization, and where the presidential candidates stand is Mary Ziegler, the Martin Luther King Jr. Professor of Law

at UC Davis School of Law. She is the author of seven books on reproduction, autonomy, and the law, including Dollars for Life, the Anti-Abortion Movement and the Fall of the Republican Establishment, and Roe, the History of a National Obsession. Her new book, Personhood, The New Civil War Over Reproduction, will be published in April of 2025. Mary Ziegler, welcome back to Fresh Air. Thanks for having me.

Abortions have actually gone up since the overturning of Robie Wade. I'm just curious as a historian, does criminalizing abortion stop people from having them? I mean, generally not. We're in an interesting moment that way too, because of course, why isn't criminalization working? Well, criminalization always, you know, can be kind of a dubious strategy. We've seen that most famously with efforts to criminalize drug use or to prohibit the use of alcohol.

Some features of how abortion is accessed now make it particularly hard to enforce criminal bans. That includes the fact that many states allow legal abortion or even protect it as a right, so it's very hard to stop people from traveling from one place to another if they have the resources to do so. And of course, most abortions in the United States today involve the use of pills that can be put in the mail. So many progressive states have set out to be shield states, that is to say they allow their physicians to treat patients from out of state even to mail

pills to states where abortion is illegal, and then the progressive state vows to not coordinate with or facilitate prosecution of those doctors. So these criminal abortion bans are particularly ineffective. I don't think we know how much the picture would change if we had some kind of national ban. In other words, if you couldn't travel to another state anymore, or if the pills people were ordering were having to come from overseas

rather than from another state. I think then we might see more of a decline, although we know historically that even when we had the equivalent of a national ban, when all states had criminal abortion laws, the number of abortions that seemed to have occurred didn't decline precipitously and almost always reflected other things like essentially whether people wanted to have larger families or whether people could afford to have children or whatever. It had more to do with the demand side of things than it had to do with what the criminal law actually said.

I want to talk with you about this ProPublica piece that recently published two studies that trace the deaths of two women to Georgia's six-week ban. They were the first to be reported since the reversal of Roe v. Wade. And you've been very vocal with some of your thoughts about this. Can you first explain briefly what happened, your knowledge of those two cases involving two women who died? Yeah, absolutely.

So ProPublica did very careful reporting on this. Unsurprisingly, both cases have subsequently been contested or become part of politics in a way that was maybe less careful than the initial reporting done by ProPublica. So there were two women, one of whom was Amber Nicole Thurman, had taken abortion pills, and like some people who take abortion pills did not completely clear the tissue that she was supposed to clear as a result of those pills. And so she went to get emergency medical treatment and physicians were unsure if they could proceed legally under the state's abortion ban, which kicks in at six weeks, because they worried that they would

violate the law and potentially have to spend up to a decade in prison. So they waited ultimately about 20 hours while she got sicker and sicker. She had an infection and by the time those physicians operated, it was too late. ProPublica wasn't able to definitively establish why the physicians waited those 20 hours to intervene, but most commentators think it's reasonable to surmise that it had something to do with the state's abortion ban and the possible consequences to them of intervening too early or being second- by a prosecutor. Candy Miller, the other woman who they studied, had a lot of health complications before she got pregnant and had

been also concerned about her ability to have another child or carry another pregnancy to term without jeopardizing her own life. So she too ordered abortion pills online. She too didn't expel all the fetal tissue. And she didn't actually seek medical care because she was afraid that she or her family or someone else she knew would face criminal consequences if she did. And so she died at home. Again, I think it was hard. There's always complexities in these cases because there were other potential issues that contributed to her death. But a state committee of medical experts actually blamed the state's abortion ban, suggesting that Miller probably would have survived if she had sought timely medical care, and that the reason she failed to was because she was afraid

that she or her family would be criminalized as a result. Do these women's families have grounds to sue? In Candy Miller's case, I don't think so, because her case is an example of how state criminal laws can do harm in part because people misunderstand what they say. So if Candy Miller's family sued, I think the state would respond, well, you know, she could have received timely medical care. She just misunderstood that.

And that may be true, but the results are just as devastating, right? It's very hard to say to people, you know, you need to keep up with all the ins and outs of what the criminal law in every state is when you're not a lawyer and when it seems to be changing all the time. But that, in effect, is what we're saying. In Amber Thurman's case, there was obviously medical there was obviously medical negligence or medical neglect that led to her death. I imagine what physicians would respond is simply that they were trying to follow the law.

How can they be medically held responsible when the state of Georgia could put them in prison for a felony if they acted the another way. And I don't know how that kind of lawsuit would come out. I think we need, you know, to know more about the evidence than we do now. But I think it speaks to the fact that some physicians really are kind of in a catch-22, where they may be worrying on the one hand about being sued by patients they're harming or their families, and on the other hand by being prosecuted by the state. That speaks to why some physicians are leaving states with abortion bans because it's complicated for them to practice in that environment. Well, I was just wondering,

I mean, is there data, have you charted cases where doctors who are reluctant to treat people are themselves punished or criminally charged, or really the other way around too, if doctors have been punished for treating a patient. One of the really remarkable things about the landscape since the overruling of Roe is how few criminal prosecutions there have been. And there hasn't even really been a lot of clarity about what criminal prosecutions there could be. So, for example, attorneys general in Texas and Alabama have said they could prosecute people for helping other people travel out of state for abortion.

And Idaho has an abortion, so-called abortion trafficking law that applies to minors that says it could do the same thing vis-a-vis minors. But we don't even really know from courts whether that's true or when that's true. And we've seen very, very few prosecutions of physicians who've provided abortions. We haven't really seen, to my knowledge, many lawsuits against physicians who've denied abortions or prevented people even from accessing emergency treatment. The Associated Press, for example, has reported on emergency treatments

that are turning away pregnant patients even before admitting them or learning a lot about their condition. The one exception to this, of course, is there's been litigation, some of it spearheaded by the Biden administration, some of it defensively by states around what's called the Emergency Medical Treatment and Labor Act, which the Biden administration says requires states to provide access to abortion under certain medical emergencies, even when state law wouldn't permit

it. A case like that reached the Supreme Court last summer, and then the Supreme Court ultimately decided it didn't want to get involved too early and sent the question back to the states and the lower courts to kind of think about a little more before the U.S. Supreme Court got involved. to kind of think about a little more before the US Supreme Court got involved. And there's litigation around that question going on in several places across the country. But again, you know, the law on this is very uncertain. And that creates, I think, even more fear among doctors and among people who need care like Candy Miller. and among people who need care like Candy Miller. Mm-hmm. I was also wondering, with all of the standalone abortion

clinics closing, particularly in southern states, what impact it has on primary care physicians and the request for abortion pills to take at home. Yeah, I mean, for the most part, what we're seeing is that people in states where abortion is criminal, if they're getting abortion pills, they're getting them from out of state. And that's for the obvious reason that primary care providers are even less likely to want to disobey state criminal laws than standalone abortion providers would. And to date, as the numbers of abortions suggest, that's been a way for people who

want to access abortion to access abortion notwithstanding criminal laws. But it's not a plan that may work indefinitely. Because if you stop and think about it, if a doctor from California mails pills to a patient in Alabama, Alabama looks at that and says, the doctor in California just committed a crime. California looks at it and says, well, no, because in California, there's nothing wrong with what this doctor did. That can tee up a lot of legal confrontations, right? If two states take diametrically opposed positions about that, you may need a federal court to intervene

and say, which state gets to decide, which state gets to apply its law. When two states are pointing in different directions like that, does that raise questions about the right to travel or about fairness because people may be confused about what the law is, even about freedom of speech if people aren't allowed to tell one another what the law is in other states. So at the moment, what we've been seeing essentially is doctors from blue states supplying

patients in red states. But we've also seen signs that maybe after the election, that's going to trigger some pretty powerful legal clashes in federal court. Mary, I want to talk for a moment now about the presidential candidates and their stance on abortion access. And we can start with Trump. We know that Trump and his running mate, JD Vance, have been repeating these false claims about abortion during their debate performances and as part of their campaign's 2024 abortion platform, which Trump talked about on his social media platform, Truth Social, back in April. I want to play a little bit of that. Let's listen.

Many people have asked me what my position is on abortion and abortion rights, especially since I was proudly the person responsible for the ending of something that all legal scholars, both sides, wanted and in fact demanded be ended. Roe v. Wade. They wanted it ended. It must be remembered that the Democrats are the radical ones on this position because they support abortion up to and even beyond the ninth month. The concept of having an abortion in the later months and even execution after birth, and that's exactly what it is.

The baby is born, the baby is executed after birth is unacceptable, and almost everyone agrees with that. That's former President Trump talking about his role in overturning Roe v. Wade and this untruth that before Roe was overturned people were getting abortions after giving birth which is homicide. And I want to know, Mary, is this a case of Trump spewing willful untruths for political gain, or is he getting this misinformation or distortion of information from somewhere? And if so, do you know where? I think the idea that Roe permitted abortion until birth

came from this understanding anti-abortion movement leaders had of a case called Doe v. Bolton that was decided at the same time as Roe. And Doe v. Bolton defined health to include mental health, which doesn't sound so controversial. But people in the anti-abortion movement looked at that and said, well, mental health is just the same thing as wanting an abortion, like you'll be unhappy if you don't

get an abortion. And so saying you can have an abortion even later in pregnancy for reasons of mental health, they believed, is the same thing as saying you can have an abortion for any reason at all at any point in pregnancy. That's not how most people understand health. Most people believe that there are real health threats that exist beyond those that could lead to the loss of life imminently. And also, I think most physicians didn't operate that way. The physicians are and have tended to be very risk-averse when it comes to performing abortions, especially when there are potential criminal consequences to getting it wrong. And states were allowed to criminalize later abortions that they think went beyond what Roe protected.

But on a practical sense, to assert that people are getting abortions after a baby is born, I mean, like, that's even, that's not abortion. Right, no, that's not abortion. And that's a whole different conversation, right? So there has been this other debate about whether babies are being killed after birth that goes back to around the 2000s. So to begin with, as you said, Tanya,

homicide laws apply after birth. And in fact, the United States is pretty well known for having laws that treat infanticide or the killing of newborns more harshly than is the case in a lot of the rest of the world, where those offenses are usually treated as lesser homicide offenses, because there's an assumption that the defendant

is suffering from postpartum psychosis or depression. So that's one thing. There's a federal law called the Born Alive Act that was passed with the support of abortion opponents in the 2000s that says that the word person in federal criminal law applies to infants born alive after abortion. So that would seem to create some protection. So I think for the most part, that is a narrative that Trump's using for political gain.

There's very little reason I would have to think that this is a problem that exists in any way in the contemporary US. He's also saying that everyone, the majority of Americans, were in favor of overturning Roe v. Wade. The research, surveys, polling shows otherwise. Yeah, I mean, that's the one that I find the most puzzling, to be honest, because if he says,

you know, somewhere in America babies are being killed after birth, you know, you have to sort of think about what the law says and what data we have to evaluate that claim. If he says everyone in America wanted Roe to be overturned, many of the people listening to the news know that that isn't true because they didn't want Roe to be overturned. And most of the polling we have suggests that at the time, a majority of Americans didn't want Roe to be overturned. That hasn't changed since the decision. And Trump's also suggested that all

legal scholars wanted Roe overturned. And that's easy to debunk too. You can just simply Google the briefs in the case that overturned Roe v. Wade and see the names of, I think, many legal scholars arguing that Roe should be retained. So that's obviously false and so obviously false. It's a little puzzling to me why that claim's being made. As we heard, Trump was proud of appointing the Supreme Court justices who overturned Roe v. Wade, but he's also repeatedly said that he's in favor of letting states determine abortion laws. And I was just wondering if he were to become president, how that policy would work in tandem with Project 2025.

So Project 2025 outlines a plan to turn the Comstock Act, which is a 19th century obscenity law, into a ban on mailing any abortion-related item. And as anti-abortion leaders recognize, that would potentially be a de facto ban on abortion because there are no abortions in the United States today that take place without items put in the mail. And JD Vance, as a senator, wrote a letter asking the Department of Justice to go along with this plan. Trump at various points has said he wouldn't generally use the Comstock Act this way, but he needs to think about the specifics. One of the

things that's critical about that piece of Project 2025 is that it wouldn't require Congress to pass, which, as Trump has recognized, is very unlikely. At the same time, Trump has said clearly that he supports letting the states make their own decisions about abortion. So clearly one of those things can't be true, right? You can't selectively enforce the Comstock Act against whatever actors you want in states that protect abortion access, and simultaneously let states do what they really want to do. So I think we're in a position where we don't really know for certain what Donald Trump would do on these issues,

and he's said a few things that don't shed more light on the matter, so I think that does leave us with some uncertainty. My guest today is abortion and reproductive scholar, Mary Ziegler. We'll be right back after a short break. I'm Tanya Mosley, and this is Fresh Air. This message comes from WISE, the app for doing things in other currencies.

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This election season, you can expect to hear a lot of news, some of it meaningful, much of it not. Give the Up First podcast 15 minutes, sometimes little less, and we'll help you sort it out what's going on around the world and at home. Three stories, 15 minutes, Up First every day. Listen every morning wherever you get your podcasts. This message comes from Pushkin. In Revenge of the Tipping Point, bestselling author Malcolm Gladwell returns to the subject of social epidemics and tipping points and the dark side of contagious phenomena, available wherever

books are sold and wherever you get your audiobooks. This is Fresh Air. I'm Tanya Mosley. And today my guest is abortion and reproductive scholar Mary Ziegler. We're talking about the latest in abortion access, the fate of in vitro fertilization, contraception, and where the presidential candidates stand on reproductive rights. Mary Ziegler is the Martin Luther King Jr. Professor of Law at UC Davis School of Law and the author of seven books on social movement struggles around reproduction, autonomy, and the law, including Dollars for Life, the anti-abortion movement, and the fall of the Republican establishment in Roe, the history of a national obsession.

She also has a book coming out this spring about personhood. You actually said not too long ago that the Democrats, Kamala Harris in particular, still needed to do better on abortion rights. And that was in August. I wonder how you feel now. Do you still feel that way? I think that they've done better on the issue. I think it's complicated to message for Democrats

because it's very easy to talk about what Donald Trump has already done. It's harder to explain what kind of difference Donald Trump could make going forward. So to the extent voters believe that Donald Trump is just gonna leave this to states, they may think that as much as they're upset, Roe was overturned or that states' bans are in place,

they may not believe that it's gonna make a particularly significant difference to have Trump in office versus Harris in office if Congress isn't going to do anything. So I think Harris has started to do a better job, particularly messaging around Project 2025, to say, you know, there are further things that could change if Donald Trump is president, which I think is very important for her to be able to say your life could change if you're a voter who supports abortion rights even more. And I think she's done more. And so has Waltz, whether that's breaking through or not, I think is, you know, remains to be seen. And we'll have a better sense of that in November.

Let's talk about state politics for a moment. I mean, all directions actually right now around abortions is actually going straight to the idea of states' rights. And you've been writing about how conservatives are turning to the courts to keep people from voting on reproductive rights this election. Just this week in Florida, the government there found fault on multiple fronts with an abortion rights ballot measure. And you've written about examples in Nebraska and Missouri. Those states were slated to bring the issue of abortion rights to the ballot.

What happened? Well, there's been litigation in many of the states that have abortion rights ballot initiatives. Some of it's been successful. So for example, there was going to be a ballot measure on abortion rights that went ahead forward in Arkansas. Now no longer, right? So the effort to get state courts to block that from happening succeeded. We've seen other efforts fail, at least to date, in Missouri and Nebraska. And we've

seen some efforts we just quite simply don't know what's going to happen. So we've seen signs that Florida Governor Ron DeSantis is gonna bring further legal challenges if in fact voters in Florida approve a ballot measure there. There's ongoing litigation in South Dakota around whether that ballot measure can go forward. Even though voters will be voting on it come November, we won't know from the state supreme court whether they will actually allow those results to stand until after the election. We've seen this tactic obviously

when it comes to honoring election results, purging people from voter rolls, that's already unfolding in a lot of arenas. And we've seen it really come to the fore when it comes to abortion rights ballot measures as well. Lyleen O'Rourke Let's talk a little bit about the fear that contraception access could soon be in jeopardy. Republicans in some states have actually pushed to expand access, but you've written about a case back in March involving the Fifth Circuit Court of Appeals and Jonathan Mitchell, who's a former Texas Solicitor General who's been behind many of the post-Dobbs anti-abortion strategies. What was that case and why was it important?

Why did you want to note that as something for us to watch for? So the case involved Alexander DeAnda, who is a member of the anti-abortion movement, and he was arguing about access to contraception for minors under Title X, which is a federal program. And Mr. DeAnda was upset that his daughters could get contraception without him knowing about it under Title 10. And he filed a lawsuit saying that the way the Biden administration was administering the family planning program violated Texas law and he said that it violated his federal rights

under the Religious Freedom Restoration Act, which protects religious liberty. He even argued that it violated his constitutional rights as apparent. And the Fifth Circuit agreed with many of DeAnda's arguments in a decision that came down last spring and essentially said federal law allows states like Texas to require parental notification, which contradicted some earlier decisions issued by courts in other parts of the country. And I think the reason I wanted to write about the case was not only that it's kind of an indication of how we're going to see other challenges to contraceptive

access. It's also a sign, I think, of the strategies we may see unfold when it comes to contraceptive access. We've seen, of course, since the Supreme Court overruled Roe, fears raised by abortion rights supporters that contraception will be next and that the logic that the Supreme Court used in overturning Roe v. Wade would suggest that there's no right to contraception either, but we haven't really seen signs of advocates taking that claim to the Supreme Court. Instead what we've seen, I think, is some groups either seeking to

establish that common contraceptives in fact operate as abortive patients, whether that's emergency contraceptives or even the birth control pill, and we've also seen what we are seeing in DeAnda. So following the DeAnda case I think is important because often as we've seen historically it's easier if you're going to question the scope of a right to start with minors access to it. It's easier politically, it's easier legally. And I think that DeAnda is likely to be the start of a much larger conflict over contraception, even if it's not one that develops immediately. Lyle Ornstein Right. I've seen rhetoric that some conservatives are drawing this line to argue that contraceptives are also dangerous to minors, that like contraceptives increase their risk of cancer

and depression, and that parents have a reason to be concerned about their children beyond a belief that premarital sex is wrong. So in a way, this battle also intersects with sex education, right? Yeah, absolutely. And I think one of the really powerful things you said is that often when conservatives make these arguments about minors, they never stop with minors, right? So if you are

arguing that minors are facing an increased risk of cancer or depression, it's not going to be a huge step to say, well, now we should be concerned about adults facing an increased risk of cancer and depression too. This is a familiar playbook that we're starting to see unfold again, and it very much does intersect with sex education. There's been an active effort by prominent groups opposed to abortion, like the group Live Action, to try to retool sex education and to include in sex education curricula information about fetal development. Live action developed a video that's often called the baby olivia video that is a narration of fetal development with some statements in it with

which some physicians, particularly physicians supportive of abortion rights, take serious issue. They say that the statements are inaccurate and manipulative and emotionally charged, but the Baby Olivia videos have become parts of some states' sex education curricula. And the game plan obviously is not just to change or even defund some sex education curricula, but to replace some traditional sex education curricula with information about fetal personhood that may lead one to think differently about fetal life or about abortion, which I think is part of the plan that some of these groups have in mind.

Yes, you're writing a book about fetal personhood, and how far does this movement of defining a fetus as a person go? We've seen efforts or beliefs that fetuses certainly were biologically human or morally equal to any other person as far back as the 19th century. But what's unique about our movement today, and this has a more recent history, is the belief that fetuses or embryos or zygots are

constitutional rights holders, not just morally valuable, not just biologically human, but constitutional rights holders. And that belief and a movement to establish that only goes back to the 1960s. So we're sort of living with that particular movement, a constitutional fetal personhood movement, and the stakes of that, of course, are different, right? If you say a fetus is a constitutional rights holder at the federal level, that would mean that it may be unconstitutional for, say, Arizona voters or Missouri voters or Florida voters or Michigan voters to establish state reproductive rights because those state reproductive rights might violate the federal protections, if you believe

that those protections exist, that belong to an embryo or a fetus or a zygote. If you're just joining us, my guest is abortion and reproductive scholar Mary Ziegler. We'll continue our conversation after a short break. This is Fresh Air. This message comes from critics at large. Join the New Yorkers writers as they dissect the latest in pop culture, television, film, and more. From the romanticization of Las Vegas to the obsession of tarot cards, tune in every Thursday to deepen your knowledge. This message comes from the Open Book with Jenna podcast. Join the today's shows Jenna Bush Hager for inspiring conversations with celebrities,

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Hear how they might help you think through it too on the Code Switch podcast only from NPR. This is Fresh Air and today my guest is Mary Ziegler, the Martin Luther King Jr. Professor of Law at UC Davis School of Law. She spent her career studying the evolution of reproductive rights and the threats to those rights. She's a comment studying the evolution of reproductive rights and the threats to those rights. She's a commentator and author of several books on the history of abortion and the law. There's been some news on the IVF front, a lot of moving parts, several appeals, lawsuits. Just last week, the Supreme Court declined to hear an appeal from Alabama IVF clinics

challenging a state court ruling that grants legal rights to frozen embryos. We remember that happened last February. What are the implications of the Supreme Court basically turning away this request? It still remains to be seen. So what had happened in this latest lawsuit was that IVF providers had said that even though Alabama had since introduced what the state was calling a shield law that protected IVF providers had said that even though Alabama had since introduced what the state was calling a shield law that protected IVF providers and administrators from suit, the IVF challengers in the suit said that it wouldn't protect them retroactively from the original wrongful death suit. And they were saying to the US Supreme Court that that raised fundamental questions of fairness. And the Supreme Court turned that away.

fundamental questions of fairness. And the Supreme Court turned that away. So that has uncertain implications, obviously, for anyone who could be affected by that initial Alabama lawsuit, but that seems to be a relatively small group of people because Alabama does have this new shield law in place. But that new shield law is also under fire. Several of the families that filed the initial lawsuit in Alabama that led to that February ruling holding that embryos were children under the state's wrongful death law have a new challenge against the Alabama IVF shield law. And they're saying that shield law, which again insulates IVF providers and administrators from liability, violates the state constitution. And they're arguing that's true because embryos, they say,

are not just children under the State Wrongful Death Act, they're actually people with constitutional rights under the state constitution, and that for that reason, Alabama can't protect IVF providers against liability. And that lawsuit is still ongoing. So we're facing a scenario in Alabama where state constitutional law

could potentially throw a big wrench in the works when it comes to IVF access. And we could see other state Supreme Courts being forced to confront these questions about fetal personhood and IVF going forward as well. I think especially if the Alabama Supreme Court accepts this argument, right? I think some court will always be first

and that may embolden other state judges who are sympathetic to those arguments going forward. Let's talk about action in Congress for a moment because Senate Republicans blocked, I think it's for a second time, a Democratic bill that wanted to enact federal protections for IVF access. I think it was called the Right to IVF Act. What reasons did Senate Republicans give for that block? Senate Republicans largely argued that the bill is unnecessary because they don't oppose IVF. They called it a show vote. So their argument essentially was that this was a political

stunt by Democrats to gin up support for their reproductive agenda, and that it was painting Republicans as IVF opponents when the opposite was true. There were also some Republicans who voiced concerns about specifics in the bill. J.D. Vance, for example, argued that it didn't create enough protection for Christian institutions that didn't want to perform IVF for religious reasons. There were other Republicans who seemed to suggest that it would allow the use of assisted reproductive technologies in experimental or offensive ways, but I think that behind the scenes reasons are even more complex because on the one

hand of course Republicans know that IVF access is very popular. On the other hand, they know that the anti-abortion movement and some base voters hold grave objections to IVF. So they're kind of between a rock and a hard place when it comes to things like the right to IVF bill, because there's no way to kind of appeal to the average swing voter and the average base voter at the same time. Right.

Because you say, assuming we are interpreting personhood in the way American abortion opponents do, either you can be for IVF or you can be for fetal personhood, but you can't be for both. Exactly. And one of the fascinating things is that it probably seems to most people that the anti-abortion movement just didn't have a whole lot to say about IVF until recently. Like if you think about conflicts over abortion, they seem to have been going on for as long as anyone's been paying attention, but not really with IVF. And the truth is much more

complicated. When IVF was first being performed in the late 70s, leading anti-abortion groups mobilized to stop research funding from the federal government for IVF. And there was some thinking that IVF shouldn't be allowed because it contradicted what some people in the movement thought was fetal personhood. But at least publicly that struggle died down over the course of decades because it was complicated in a way that the fight against abortion wasn't for the anti-abortion movement. And now I think that Roe is gone and fetal personhood is the new chapter. We've seen that IVF in

some ways is the new frontier for abortion opponents who greeted the Alabama Supreme Court's decision largely positively, right? Even knowing that it was politically bad for Republicans, even knowing that it was unpopular, you saw a lot of leading anti-abortion groups saying, you know, this is the start of something we want to capitalize on, not something that they wanted to kind of play down or distance themselves from. Mary, you're an abortion scholar. You've been studying the history of reproductive rights and abortion for many, many years.

Where do you see this moment in this long arc over reproductive rights? It's really unprecedented in some ways. I don't think in the past 50 years we've had an election where the stakes could be as high simply because Roe v. Wade isn't there as a floor anymore and because we have a quite conservative US Supreme Court. So it's not necessarily the case that a Donald Trump presidency would mean unprecedented movement toward a nationwide restriction, but it's also possible that it could, which is something we haven't really been able to

say for the past half century. And that's pretty stunning. It's also unprecedented in the sense that the range of possible outcomes we could see in federal courts in the next half century is really pretty staggering, right? So you could imagine a scenario where you had a Kamala Harris presidency for maybe eight years, where you replaced two of the court's most conservative justices with Kamala Harris nominees. And that I think would put back on the table

something like a new decision recognizing a right to abortion. Conversely, you could imagine a scenario where you have a Donald Trump presidency followed by a JD Vance presidency, where you could imagine a court conservative enough to recognize constitutional fetal personhood, and thereby kind of implement a ban on abortion everywhere.

So I think we're at a moment where the range of possible realities when it comes to abortion rights in America is extraordinarily broad in a way that most of us have never experienced. And so it's kind of remarkable as a historian to be living through it and writing about it. Mary Ziegler, I really appreciate your time and your expertise. Thank you so much. Thanks for having me.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at UC Davis School of Law. Coming up, our critic at large, John Powers, reviews Annihilation by Michelle Wellbeck. This is Fresh Air. If you're black or brown or a person of color, you know that stories about race in the news can sometimes feel like they're made for a different audience. At Code Switch, we're not about that. We're interested in how race and identity shape your world in real and sometimes funny ways.

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untold origin stories of the products you're obsessed with and the people who made them go viral. Listen to The Best Idea Yet wherever you get your podcasts. This is Fresh Air. The New York Times Magazine recently described Michel Welbeck as France's most controversial and most celebrated novelist. His latest novel has just been released. It's called Annihilation. Because Welbeck has declared this his final novel, our critic-at-large John Powers finds it an excellent occasion to examine why this cultural lightning rod

has kept readers around the world fascinated for more than a quarter century. Early in Michelle Welbeck's novel Submission, its professor Hiro talks about what makes a writer worth reading. An author is above all a human being, and whether he writes very well or very badly hardly matters, as long as he gets the book written and is present in them. It's strange that something so simple, so seemingly universal, should actually be so rare. Few writers are more present than Welbeck, the international literary superstar who's one of the handful of writers who invariably jangles

my nerve ends. Trenchantly ironic about our self-centered society, his novels are barracud superstar, who's one of the handful of writers who invariably jangles my nirvins. Trenchantly ironic about our self-centered society, his novels are barracuda-toothed provocations, ideal-laced fictions filled with dodgy sex, joyless masculinity, swipes at Islam, derision toward sixties freedoms, contempt for the media elite, attacks on the EU, and casual misanthropy. Welbeck's surely the most acclaimed literary figure to have praised Donald Trump. In France, he's routinely called a genius, or a creep. In fact, his fiction is brainier, trickier, and more stimulating than his polarizing reputation

suggests. It's not just that his novels have been eerily prophetic about what's happening in society. He cuts to the heart of things in a way that makes most of his American counterparts look like well-schooled functionaries, doodling prettily on the margins of life. A sense of doom, social and personal, looms over his new novel, Annihilation, which the 68-year-old Welbeck has said will be his last. Although far from his best, it's a fascinating book tinged by mortality. You can feel this one-time bad boy crawling out of his comfort zone to do something he's pointedly not done before.

Explore middle-class family life and the healing power of love. As usual, Annihilation features a decentered male hero. 50-ish Paul Raison is a high-level Paris bureaucrat who's in a sexless marriage to another bureaucrat, Prudence. Bored and vaguely disaffected, he doesn't believe in much of anything. Paul's going through the motions when his world starts falling apart. In the public sphere, there's a series of cyber attacks designed to send seismic shocks through the existing global order. In his personal life, his father has a stroke, and Paul's forced to engage with his family, especially the devoutly Catholic sister he's

been largely ducking for years. Even as he's confronted by an often Byzantine medical system, he must deal with a group of anti-government radicals and a health crisis of his own. Although deftly translated by Sean Whiteside, Annihilation is slow getting started and too diffuse by half. I began skipping the boring dream sequences. But Welbeck has always had one of those narrative voices that draws you in, as in this book's opening line. Particularly if you're single, some Mondays in late November or early December make you feel as if you're in death's waiting room. Welbeck's major works—Atomized, Platform, Submission, and Serotonin, were all worshipped or reviled

for their seeming cynicism. Yet beneath their dryly funny, sometimes shocking surfaces, there's the work of a radical conservative, to borrow a description Norman Mailer used of himself. Welbeck's books dissect how, in our modern society, people, in particular men, feel hollowed out. Anything can happen in life, says the hero of Platform. Especially nothing. No longer bound by the old religious, national, and tribal belief systems, Welbeck's characters inhabit an atomized world whose individualism leads to the bleak consolations of technology, consumerism, and the soulless sex typified by pornography.

His great satire Submission, in which Islam takes over France, was pilloried as an attack on that religion. In fact, it's a book about a French culture so decadently anemic that it finds a kind of comfort living under the certainties of Sharia law. Dismissive of both the left and market-driven society, Welbeck is such a sly and ambiguous writer that I'm not always sure when he's kidding. I often identify with his characters, and even when I find certain pages repellent,

Welbeck challenges my perceptions. He gets me asking whether I'm in touch with my real self, or whether I've unthinkingly donned a set of attitudes passed on by our culture. And in Annihilation, he surprised me. After a career spent, as he puts it, clearing away the sources of hollow optimism, he ends Paul Rezon's story with some of the tenderest pages and tenderest sex of his career. This is a book about discovering the ties that bind and about letting yourself be bound by them. Filled with acceptance, if not serenity,

it has the happiest ending you can have in a book by a writer who doesn't believe in happiness. John Powers reviewed Annihilation by Michelle Welbeck Tomorrow on Fresh Air, what it's like to have the power to investigate what's going on in government agencies like the FBI. Former Inspector General Glenn Fine talks about finding corruption and mismanagement in the Departments of Justice and Defense. His new book is Watch Dogs. I hope you'll join us. One, two, three.

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