Playing Chicken With the Constitution

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Playing Chicken With the Constitution
Release Date: April 19, 2025

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Overview

In this compelling episode of Amicus, host Dahlia Lithwick, alongside Slate Senior Writer Mark Joseph Stern and esteemed guests Leah Littman and Mary Ziegler, delves deep into the tumultuous landscape of American constitutional law. The discussions primarily focus on high-stakes legal battles involving the Trump administration's defiance of court orders, the burgeoning personhood movement, and the far-reaching implications of the Supreme Court's decisions post-Dobbs v. Jackson Women's Health Organization.

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Executive Branch and the Abrego Garcia Case

Court Cases and Rulings

The episode opens with Mark Joseph Stern recounting his firsthand experience in a Maryland courtroom, observing Judge Paula Sinis's exasperation as Justice Department lawyer Drew Ensign ambiguously interprets the term "facilitate" in relation to Kilmar Abrego Garcia's detention in El Salvador. This case highlights the executive branch's ongoing resistance to comply with court orders aimed at ensuring Garcia's humane treatment and eventual return.

Notable Quote:
Leah Littman (02:15):
"The executive branch has to respect basic principles of due process. Like this is not a game of chicken where we back down from the Constitution. Like that's not how this works."

Administration's Defiance and Smear Campaign

Leah Littman articulates the Trump administration's blatant disregard for the Supreme Court's unanimous decision mandating Garcia's return. The administration's strategy involves filing minimal briefs that offer no substantive updates and redefining legal obligations in a manner that absolves them of responsibility. Additionally, the administration has engaged in character assassination, with Attorney General Pam Bondi labeling Garcia a terrorist despite the absence of credible evidence.

Notable Quote:
Mark Joseph Stern (07:28):
"The fact remains that those three flights on March 15... continue to be a horrifying harbinger of where all our constitutional rights are heading."

Judicial Reactions and Consequences

Judge James Boasberg's recent ruling exemplifies the judiciary's frustration with executive overreach. He has found probable cause for criminal contempt against Trump administration officials for their non-compliance with court orders, sternly warning of the erosive effects on constitutional principles if the executive branch continues its defiance.

Notable Quote:
Leah Littman (15:05):
"This is what I wanted to see from the Supreme Court... It's horrifying."

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Personhood Movement and Reproductive Rights

Interview with Mary Ziegler: Historical and Current Perspectives

Mary Ziegler, a legal historian and expert on reproductive law, joins the conversation to unpack the origins and evolution of the personhood movement. She argues that the movement to establish fetal personhood is a long-standing strategy aimed at embedding restrictive reproductive rights within the U.S. Constitution, a process accelerated by the Supreme Court's Dobbs decision.

Historical Context of Personhood

Ziegler traces the personhood movement back to the 1960s, highlighting its roots in Catholic advocacy and its transformation into a broader conservative Christian endeavor. The movement seeks to redefine constitutional rights to include fetuses, thereby criminalizing abortion and potentially other reproductive actions such as IVF and miscarriage management.

Notable Quote:
Mary Ziegler (34:39):
"Personhood started as a sort of like, well, what else are we going to say? Like, if people want this reform, let's just say they can't have this reform because it's unconstitutional."

Current Legal Implications Post-Dobbs

The Dobbs decision has served as a catalyst for the personhood movement, pushing it from theoretical advocacy to actionable legal strategies. Ziegler emphasizes that this movement now confronts critical issues such as prosecuting miscarriage management and regulating fertility treatments, areas previously unchallenged in the realm of reproductive rights.

Notable Quote:
Mary Ziegler (59:00):
"It's literally a battle between ideology and political reality and whether democracy forces the movement to moderate what it's asking for or whether it can kind of give in to those ideological impulses."

Role of Originalism, Race, and Religion

Ziegler discusses the complex interplay between originalist legal interpretations and the personhood agenda. She explains how originalism has been co-opted by the personhood movement to lend constitutional legitimacy to its goals, despite the original intent of the 14th Amendment not encompassing fetal rights.

Additionally, she explores the undercurrents of race and religion within the movement, noting that early personhood proponents drew analogies between fetuses and marginalized racial groups to advance their agenda. This strategy has evolved, reflecting broader conservative movements and intertwining with racial politics, particularly in the context of civil rights.

Notable Quote:
Mary Ziegler (54:07):
"It's less intuitive to people that this would be a story about race... it tells you a lot, I think, about our racial politics when you drill down into what people mean when they talk about personhood."

Future Outlook and Recommendations

Looking ahead, Ziegler predicts that personhood legislation will continue to proliferate at the state level, potentially escalating to federal courts. She warns of the unpredictable nature of Supreme Court decisions and the possibility of new, stringent reproductive laws that could further restrict and criminalize reproductive freedoms.

Notable Quote:
Mary Ziegler (65:42):
"Personhood is very much on the agenda... I think we are going to see that it matters even more to people than we already think."

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Conclusion

The episode concludes with a poignant call to action, urging listeners to engage in the broader struggle for reproductive rights and democratic integrity. Both Leah Littman and Mary Ziegler emphasize the interconnectedness of defending constitutional principles and safeguarding reproductive freedoms, highlighting the necessity of sustained public advocacy and political participation.

Notable Quote:
Leah Littman (73:12):
"I'm not going to let them win. Right. Like, that is just not the solution here... it's still a fight worth participating in."

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Key Takeaways

• Executive Defiance: The Trump administration continues to resist court orders, exemplified by the Abrego Garcia case, undermining due process and constitutional mandates.

• Personhood Movement: Long-established since the 1960s, the movement seeks to enshrine fetal rights within the Constitution, with far-reaching implications for reproductive freedoms.

• Judicial Responses: Federal and state courts are increasingly confronting executive overreach, though challenges remain in enforcing compliance.

• Interconnected Struggles: Protecting reproductive rights is intrinsically linked to upholding democratic principles and resisting ideological overextensions.

• Public Engagement: Active participation in voting, advocacy, and supporting democratic institutions is crucial in countering erosive legal trends and preserving constitutional liberties.

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Amicus continues to illuminate the intricate and often contentious interplay between law, politics, and societal values, offering listeners a nuanced understanding of the forces shaping America's legal landscape.

Transcript

[Dahlia Lithwick]

This episode is brought to you by Choiceology, an original podcast from Charles Schwab hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to [e-mail] podcast or wherever you listen. This podcast is brought to you by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy to see if you could save when you bundle your home and auto policies. Try [e-mail] Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states hi, I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts, the law and the Supreme Court.

[Mark Joseph Stern]

And I'm Mark Joseph Stern, Slate Senior writer. This week's show features Schrodinger's Dahlia, wherein she is both here and not here. For the first part of the show, I'll be talking to Leah Littman, University of Michigan law professor, co host of Strict Scrutiny, and author of the brilliant new book Lawless. We're going deep on the developments in two high stakes cases that stem from those rendition flights to El Salvador. One is the conflict over Kilmar Abrego Garcia, who is still imprisoned overseas. The other a dispute in Judge James Boasberg's Washington, D.C. courtroom, where Articles 2, 2 and 3 of the Constitution are also on a collision course. In one corner are two federal judges trying very hard to get the executive branch to follow court orders requiring information, candor and facts. And the other is the Trump administration, which seems hell bent on defiance.

[Leah Littman]

The executive branch has to respect basic principles of due process. Like this is not a game of chicken where we back down from the Constitution. Like that's not how this works.

[Mark Joseph Stern]

After my conversation with Leah, Dahlia will hop back into the Amicus host chair for a fascinating and honestly deeply worrying interview about the escalating efforts to establish fetal and embryonic personhood in American law.

[Katie Milkman]

If you remember how the end of Roe v. Wade for a long time felt like a death of a thousand cuts until all of a sudden it was one big blow. That's where we are with fetal personhood.

[Mark Joseph Stern]

But first, I spent Tuesday afternoon in a courtroom in Greenbelt, Maryland, watching Judge Paula Sinis grow visibly exasperated as our friend and yours, Trump Department of Justice lawyer Drew Ensign, prevaricated, obfuscated and tried to make the Word facilitate mean something other than it does. This was the latest hearing in the case to bring home Kilmar Abrego Garcia, the Maryland husband and father whom the government disappeared, to a brutal torture prison in El Salvador despite a court order that should have prevented his removal. Removal. And on Wednesday, Judge James Boasberg ruled that probable cause exists for criminal contempt proceedings against Trump administration officials who apparently defied his orders last month to halt the renditioning of Venezuelan migrants to that same Salvadoran prison under the auspices of a very old, very bad and very rarely used wartime law, the Alien enemies Act of 1798. By Thursday night, Senator Chris Van Hollen from Maryland had been turned away from seekot the so called terrorism confinement center in El Salvador, but then was photographed meeting with Kilmar Abrego Garcia at a hotel. Hours later, a note neither a drink at a hotel with a senator nor Pam Bondi repeatedly calling you a terrorist on television actually constitutes due process. The fact remains that those three flights on March 15, carrying around 200 young men, including Abrego Garcia, to a black site created in partnership between Trump's White House and President Bukele of El Salvador, continue to be a horrifying harbinger of where all our constitutional rights are heading. Joining me to discuss this lawlessness is Leah Littman. She's a professor at the University of Michigan Law School. She teaches and writes on constitutional law, federal courts, and federal post conviction review. Leah is also co host of our chosen family sibling podcast, Strict Scrutiny and author of the brand new book how the Supreme Court Runs on Conservative Grievance, Fringe theories and bad vibes. Welcome back to Amicus, Leah.

[Leah Littman]

Thanks so much for having me. I'm going to demand that as my intro everywhere, just so you know, academic conferences anywhere.

[Mark Joseph Stern]

Right?

[Leah Littman]

Like co host of the podcast that is the chosen family of Amicus, author, forthcoming author of Lawless, et cetera, et cetera. Anyways, loved it.

[Mark Joseph Stern]

Thank you and we're really happy to have you back. Now. You will be some sunshine in a dark week, I guess. Not to put too much pressure on you, but you know, we have seen a lot of escalation from the Trump administration in the Abrego Garcia case in the last few days. And of course we've also seen major developments in Judge Boasberg's case. But before we get there, can you fill us in on what's happened since the Supreme Court ruled last week? Yes, it was just last week that the government must, quote, facilitate Abrego Garcia's return.

[Leah Littman]

So after the Supreme Court notably denied The Trump administration's request to put on hold Judge Sinis's entire order. Stephen Miller announced that the administration had actually unanimously prevailed before the Supreme Court. The Supreme Court said the district court.

[Mark Joseph Stern]

Order was unlawful and its main components were reversed nine zero unanimously.

[Leah Littman]

This was news to anyone who could read. But based on that understanding, the administration basically proceed to do what it would have done in the event the court actually ruled for them, which is jack squat. So the administration did deign to file briefs, you know, in the status updates that Judge Sinas had requested. But the status Updates Just said Mr. Abrego Garcia is alive. Sorry, can't tell you anymore. No further updates. They never bothered to file these briefs on time. And then they filed this outlandish document in which they claimed that the Supreme Court's order and their interpretation of Judge Zenas order is that to facilitate means only to remove those domestic obstacles to Mr. Abrego Garcia's return. That is, they don't actually have to do anything to get him out of the El Salvador prison. All they would have to do is if he just miraculously somehow showed up on our shores, they would have to remove these non existent obstacles that he was never challenging and that don't exist to let him in. It's just totally nonsensical. So. So that's their position.

[Mark Joseph Stern]

It was fascinating to watch the face of Judge Sinis as the Justice Department made this argument on Tuesday. I would say her facial expressions as this definition of facilitate was presented to the court are about what yours would be if someone said that Taylor Swift is valu. Vastly overrated. Listeners can't see this, but it is a mix of contempt, disgust and disbelief that such an outrageous claim is being levied. I mean, truly, this definition comes out of nowhere. Nonetheless, the White House has launched the smear campaign against Abrego Garcia. Attorney General Pam Bondi has called him a terrorist.

[Leah Littman]

One of the top Ms. 13 members.

[Mark Joseph Stern]

Who is illegally in our country and a terrorist. Leah, can you remind us what evidence actually exists proving that Abrego Garcia is a terrorist or a gang member or any kind of violent criminal at all?

[Leah Littman]

Yeah. So According to the U.S. court of Appeals for the 4th Circuit, absolutely no evidence whatsoever. So the government has never bothered to put forward any evidence to substantiate any of these allegations. The documents or whatnot that Bondi and others have revealed certainly don't say anything to this Respect. I think one of them gestured to the idea that maybe he had rolls of cash on him, but that was just a jacket or something. The Evidence does not exist. They have never bothered to provide it beyond their grotesque say so and stipulation.

[Mark Joseph Stern]

So it's always interesting to compare these statements that the Trump administration makes on TV when the cameras are rolling the Oval Office, with what the Justice Department is saying in court filings. It's a fascinating split screen. I feel like the rhetoric is actually converging now. What we hear from the Justice Department sounds more and more like it's being dictated by Trump officials.

[Leah Littman]

I totally agree. And it also brings me back to the first Trump administration, because in the most recent series of hearings, the government lawyer basically wanted to point the judge to the statements that El Salvador President Bukele made in the White House meeting that had been televised as the basis for why the federal government could do Nothing to secure Mr. Abrego Garcia's return. And Judge Sinis was like, yo, you ever heard of the rules of evidence, buddy? Right. They're a thing. You can't do that. And it takes me back to the first Trump administration, because recall then, the Trump administration was all apoplectic that you could ever point to a tweet, a statement Trump made to the media in order to invalidate the travel ban. And now it's like, well, sometimes we get to do that so that we don't actually have to swear or provide you a declaration to the court that would substantiate any of this. It's just utter nonsense.

[Mark Joseph Stern]

I guess. We should also note that initially, when Abrego Garcia filed suit through his family and lawyers, the Justice Department acknowledged that he was deported due to an administrative error, that it was a mistake. But the two attorneys who acknowledged that mistake have been put on leave.

[Leah Littman]

One of them was formally fired, and.

[Mark Joseph Stern]

One of them reportedly has now been fired. And Stephen Miller started going on TV claiming that it was not a mistake, that he was the right man, deported to the right place. And now the Justice Department has stopped acknowledging that this was a mistake. It seems to me like Stephen Miller is maybe actually picking up the phone and calling the Justice Department and telling them what to say. Is that like an overread of the situation?

[Leah Littman]

Or he's shadow writing their briefs and they just, Right, like, put whatever gloss on it. You know, it takes me back to Matthew Kaczmyrick, where supposedly, right, someone else authored the law review article that, I don't know, he drafted but then didn't put his name on.

[Mark Joseph Stern]

Yeah. And we should note, unlike Matthew Kaczmarek, Stephen Miller is not even a lawyer, which shows if he is shadow writing these briefs, we should maybe just remind listeners briefly that there actually is not supposed to be this kind of direct coordination between the White House and the Justice Department. And this almost seems quaint, but until, oh, three months ago, there was a buffer between the White House and Justice Department officials. There was a strong norm against direct manipulation of legal proceedings by top White House officials so that the Justice Department could retain independence and integrity. And I think we can just deduce that that's gone now.

[Leah Littman]

Oh, yeah, absolutely. I mean, it calls to mind one of their many executive orders that just directed that President and Attorney General's interpretations of the law were binding on the rest of the executive branch. So who knows? Maybe Donald Trump came up with his definition of facilitate. We can't rule it out.

[Mark Joseph Stern]

I'm just curious for one moment if you think that will have any negative implications at the Supreme Court for the administration. Like will the Supreme Court, which has traditionally given real deference to the Justice Department because of its legacy of independence, start to blink slowly and shake its head side to side and say, I can no longer trust what you're telling me?

[Leah Littman]

I wouldn't hold my breath just because I think they should have already done that in the Alien Enemies act case, where they halted Boasberg's order, as well as in the Abrego Garcia case, where they at least modified or suggested maybe Judge Sinis had to modify her order. By that point, the administration's bad faith and their unwillingness to actually let lawyers do things and say things that are grounded in fact and law was apparent. And the court didn't even acknowledge any of that in their written orders, as Justice Sotomayor indicated. So I just think they're gonna continue getting a pass.

[Mark Joseph Stern]

Yeah. So let's. Let's turn then to a court that's not giving them a pass, at least for now, which is the fourth Circuit. The fourth US Circuit Court of Appeals refused to halt an order issued by Judge Sinis that allows for gathering of evidence and fact finding by Kilmore Abrego Garcia's legal team that could both reveal what steps the administration is taking or not taking to bring him home and also lay the groundwork for a contempt finding down the road. Right. And the fourth Circuit, in declining to intervene, issued this really strong kind of thundering opinion. It was actually authored by Judge J. Harvey Wilkinson, who is a conservative Ronald Reagan appointee. There are so many quotes that I could draw from, but I guess I'll just start here. Wilkinson wrote, the executive possesses enormous powers to prosecute and to deport, deport but with powers come restraints. If today the executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the executive's obligation to take care that the laws be faithfully executed would lose its meaning. And here he actually cited to Trump's statement in the Oval Office that homegrown criminals, meaning US Citizens, could be the next to be deported.

[Dahlia Lithwick]

I said homegrown. Next, the home runs, you got to build about five more places. Yeah, that's all right. It's not big enough.

[Mark Joseph Stern]

Leah, your reaction?

[Leah Littman]

This is what I wanted to see from the Supreme Court. I mean, this is a federal judge who is looking at what Donald Trump is. Is saying he's going to do and using that to assess the executive branch's claims. And that is the thing that the Republican justices on the Supreme Court have so far been unwilling to do. And I thought Judge Wilkinson's opinion was notable not just because he was gesturing to all of the horrible things, or at least some of the horrible things Donald Trump was threatening to do. That was basically Justice Sotomayor's statement in the Abrego Garcia case, as well as her dissent in the Alien Enemies act case. And I just think, look, if Judge Wilkinson is where Justice Sotomayor is, what is going on with the Republican appointees? It's horrifying. And the other portion of Judge Wilkinson's opinion I wanted to highlight is where he basically doubled down on saying, I am not going to just give up on the prospect that the executive branch isn't going to comply with court orders. And I thought that was important because I think a fair number of people have interpreted what the Supreme Court has been doing in these cases as kind of backing down because they're scared about a confrontation where the Trump administration just refuses to comply with their orders because they think that might happen. And Judge Wilkinson is like, no, you can't just retreat from basic principles of due process. You need to tell everybody that the executive, Executive branch has to respect basic principles of due process. Like, this is not a game of chicken, where we back down from the Constitution. Like, that's not how this works.

[Mark Joseph Stern]

And he pointedly cited the Little Rock nine incident where President Eisenhower sent in the National Guard to enforce a desegregation order. And I think there maybe was trying to nudge the Supreme Court's Republican appointees toward standing up for the rule of law the way that their predecessors did during the post Brown crisis. Do you think it'll work?

[Leah Littman]

You know, I respect the optimism, Judge Wilkinson. We need people right who who still think that is attainable to keep trying. And I appreciated and respect the effort. And again, even if it's not successful, I think it was important to do.

[Mark Joseph Stern]

More In a moment with Leah Littman.

[Dahlia Lithwick]

This episode is brought to you by Choiceology, an original podcast from Charles Schw. Choiceology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates, and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and [e-mail] podcast or find it wherever you listen.

[Leah Littman]

This episode is brought to you by Planned Parenthood Federation of America. Some of the most consequential legal decisions in the United States have centered around sexual and reproductive health care. Why? Because when people control their bodies, they control their futures. Lawmakers who are hostile to reproductive health and rights are trying to shut down health centers. Planned Parenthood is the nation's leading provider of quality, affordable sexual and reproductive health care. Each day, nearly 600 health centers across the country provide essential care to millions. This isn't just about access, it's about equality. Planned Parenthood serves people regardless of gender, race, income, immigration status or background. Whether it's birth control, cancer screenings, STI treatment, or gender affirming hormone therapy, Planned Parenthood is there. Lawmakers opposed to reproductive health are trying to undermine that work. This isn't just an attack on Planned Parenthood, it's an attack on healthcare and it's putting lives at risk. You can help donate to Planned Parenthood Federation of [e-mail] defender foreign.

[Mark Joseph Stern]

Let'S return now to my conversation with Leah Littman. Let's turn to something else that I think is another example of maybe won't be successful but was still important to do, which is Judge Boasberg's finding of probable cause for criminal contempt. Right. So he issued this extraordinary opinion laying out all of the facts in the case about the alien enemies act deportations clearly done in violation of his express orders. He found this probable cause. But. But then he gave them an off ramp to purge the contempt. Before we get to that off ramp, can you just sort of briefly walk us through what Judge Boasberg said and why he said it?

[Leah Littman]

Yeah. So he said the administration acted in willful disregard of his orders. So he said, look, I told you to turn the planes around. You didn't. And then when you didn't, you came back to me with this ridiculous claim that because my written order hadn't reiterated what I gave in my oral order, it didn't apply. That's not how judicial orders work. And so he basically said, look, the timing is clear. You knew what the direction was, and you just refused to carry it out. And since then, you've been thumbing your nose in all of our faces, basically saying, nanny, nanny, boo, boo. No backsies, because we. He sent them to El Salvador.

[Mark Joseph Stern]

You know, it's an interesting read because it's dozens of pages of this really strong stark, you broke the law rhetoric. And then at the very end, there's like a twist where he says, oh, and by the way, you can purge this contempt. Tell us what he's doing there.

[Leah Littman]

Yeah. So he's giving the administration a choice to purge the contempt by bringing back the people from El Salvador who never should have been in El Salvador in the event the administration actually complied with his order to turn the planes back around. So he's saying, look, if you rectify your refusal to comply with my order by making it so it's as if you actually complied with my order, I'm going to let you go. And look, I actually appreciated that he did this, because at the end of the day, Judge Boasberg cannot get on a plane to El Salvador and get Bukele to open up the prison and then get everyone back on planes that he would personally charter to bring them back. And so they are constantly trying to give the administration a way to do what is required of them. And I think he probably was also doing this to make his order stand up in the event that they don't purge the contempt and his probable cause determination and any subsequent events go up to the appellate court and the Supreme Court.

[Mark Joseph Stern]

Yeah. And I guess, too, it's a clever way to sort of force the United States government to possibly exercise custody over these individuals and thereby acknowledge that they can, you know, ask El Salvador to either give them hearings or send them back or whatever. Because what Judge Boseberg specifically, specifically said was assert custody and Then we'll talk. And that's the thing that the Trump administration claims it can't do, that we all know is bogus. Right? Because of course, there's a contract and an agreement with El Salvador and they're all under the ultimate control of the United States.

[Leah Littman]

Well, also, when Senator Van Hollen went to El Salvador and was like, show me Mr. Abrego Garcia. No, really, I mean it. They did.

[Mark Joseph Stern]

I am curious what you made of that. I mean, so you know, Van Hollen went, they delivered Abrego Garcia in civilian clothes to a third location. But then Bukele afterwards tweeted, now that he's been confirmed healthy, he gets the honor of staying in El Salvador's custody. What should we make of that?

[Leah Littman]

It's not funny, it's not cute. But I think the event, again, inured to the cause of getting Mr. Abrego Garcia and the other individuals back to the United States States because it confirmed right. Bukele will do things that United States officials request of him. It is not impossible to get these people out of the terrorism confinement center. And so all of this is just additional public evidence. And in my mind, it was a needed moment of a reminder that public pressure works. The amount of attention and pressure on this case has been immense. And, you know, it yielded something admittedly small, but it confirmed Mr. Abrego Garcia is alive. And given the administration's obfuscations, like, I was unwilling to kind of take their word for it just based on declarations they had filed earlier in the week before Judge Xenias.

[Mark Joseph Stern]

Really quickly, the Supreme Court did something big on Thursday. It announced that it was going to hear arguments in the birthright citizenship case on May 15, moving it to the rocket docket. There's a lot of confusion and a little bit of mystery over actually what the court will consider and what it will decide. Can you help us understand?

[Leah Littman]

So formally, the Trump administration asked the Supreme Court to take up the issue about whether the lower court's injunctions against the birthright citizenship, wildly illegal executive order should be narrowed. So the lower courts had written these injunctions to apply nationwide. And the Trump administration says no, no, no, no. Like, they should only apply to the state states that brought these challenges. And so they're in effect making this pretty technical argument that would allow them to implement the policy without the Supreme Court having to say the policy is legal in broad swaths of the country. So that's formally the legal question that the court is going to take up. It is, of course, possible that in the course of discussing that. Right. Or writing something on it, they will say something about the underlying legality of the executive order, but formally that that's the question they are being asked.

[Mark Joseph Stern]

So it's possible that the court could, in deciding this question about the scope of injunctions, also opine on the legality of the birthright citizenship ban.

[Leah Littman]

I mean, look, these guys have shown they're gonna do whatever the fuck they want. So. Sure. Right.

[Mark Joseph Stern]

Like, you know, that's my read, too. And there's been a lot of debate about this within our circles. So I, you know, they'll do whatever they want. Is I think that the top line takeaway. So I have a kind of meta question that I think ties into your book, which we'll talk more about in the slate, plus bonus episod. And I mean, basically, the Trump administration seems to be offering what you argue the Supreme Court has been drifting toward, which is a conception of law that's just all bad vibes and really pretext for Donald Trump to do whatever he wants.

[Leah Littman]

Yeah.

[Mark Joseph Stern]

And it feels like we've gotten here really quickly and a lot of people are still catching up to how dark things have gotten. And so my question is, does any of this inspire you to fight even harder for a conception of the law and the judiciary that transcends conservative grievances and MAGA extremism and endures beyond this nightmare administration, or is it all just so enormously horrific that it makes you want to just give up?

[Leah Littman]

I mean, there are moments when it feels overwhelming and I feel like, what can I possibly do? There are no good options. But then at the end of the day, I come back to this idea of, I'm not going to let them win. Right. Like, that is just not the solution here. And if the best I can do is is make their lives more difficult. Right. Make it more difficult for them to carry out these awful policies that harm so many people and wreak such grievous harm. Right. Like, I'll take that at a minimum, even if I can't deliver in short order or over the period of my professional life, a functioning Supreme Court. So I am unwilling to give up. And that's part of why I noted that the Van Hollen moment was a needed reaffirmation that public pressure works and that we can actually accomplish things even in the midst of all of these horrors and terrors. And I think that's just worth reminding ourselves of. Like, the fight is hard. It's going to be long. We're not going to win everything. But it's still a fight worth participating in, because the other solution is just to let Sam Alito, Stephen Miller and all of their buddies get to do whatever they want at no cost. And that is just unacceptable to me and it is incompatible with a liberal constitutional democracy.

[Mark Joseph Stern]

I love that fighting spirit. I feel like I have my marching orders now do the opposite of what would make Sam Alito and Stephen Miller happy. And they want us to give up so we can't. That simple.

[Leah Littman]

You know, I'm not even a Virgo. I'm not even a Virgo, but that petty energy helps sustain me. And I think everyone needs to find theirs. And that's what I've zeroed in on.

[Mark Joseph Stern]

Leah Littman is a University of Michigan law professor, host of our chosen Family sibling podcast Strict Scrutiny, and author of the brand new book Lawless. It's out on May 13th. Get your pre orders in now. Thanks so much Leah.

[Leah Littman]

Thank you.

[Mark Joseph Stern]

Leah, will you linger with me for a few more minutes in the Amicus plus Smokeless cigar bar, please? I would love to talk more about your fabulous book and how it can provide a really important framework for looking at some of the big so called religious freedom cases at the Supreme Court this term, starting with next week's super significant arguments in Mahmoud v. Taylor.

[Leah Littman]

With that kind of request, how could I say no?

[Mark Joseph Stern]

So Leah will head over to the Rumpus Room of Doom for our bonus episode this week. I'll share the details for how to listen to that at the end of the show. We're going to take a short break and when we come back, Dahlia Lithwick will be in conversation with legal historian Mary Ziegler about the new front in the war on abortion and how fetal personhood is coming for much more than what remains of reproductive rights in America.

[Dahlia Lithwick]

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[Katie Milkman]

No, thanks for having me back and.

[Dahlia Lithwick]

Congratulations on the new book. I don't know how you managed to write as prolifically as you do and yet every one of the books feels like it is sort of the harbinger of some new chunk of what is gonna be history. So this was actually really illuminating and I'm gonna tell our listeners to run out and get a copy. I wonder if we can start, and maybe this is just an unfair reductive math question, Mary, but can you give us a sense of what has happened in the three intervening years in terms of actual people losing access to abortion care or to fertility treatments or miscarriage care? Do we have any sense of what the actual fallout is three years later?

[Katie Milkman]

Yeah, I mean, we don't have a complete sense. One of the things, of course that's happened is that states have moved to lock down information about what's happening happening. Right. I mean, we have less information really than we ought to have, but we do have a sense of what impacts are and are not being felt. So in part, there are fewer impacts than some conservative states would like. We're still seeing people travel across state lines for abortion. We're still seeing people ordering pills through the mail. And for that reason there's sort of a mixed picture about whether fewer abortions are even taking place. The impacts that are the most acutely felt, I think, are hopefully not intended impacts. Right. So we're seeing a lot of devastation for people who have wanted pregnancies who are being turned away sometimes from emergency rooms, as the Associated Press reported, even before they're seen, sometimes by physicians who worry that the care they'd be providing would qualify as an abortion, even if in fact it's not maybe legally considered to be, even by conservative lawmakers themselves. So we've seen, I think, increasing concern about maternal mortality and morbidity. There's been a study suggesting there's been an increase in infant mortality. Reality, we've, I think, also seen less access to both primary care and obstetric and gynecological care across a lot of the south, as some physicians and Midwest don't want to have to face this choice between potentially lengthy prison sentences and loss of their medical license and refusing care they think is medically required. So the upshot, I think, has been a bleaker picture for people who are pregnant in terms of ivf. I mean, IVF has become a political third rail in a way it really never was before. I'm working on a book now about this because I was just fascinated by how is it that we did not have a culture war about IVF for 50 years and now we do. And I think Dobbs is obviously not the only answer to that, but it's a big part of the answer to that. So now we're seeing, for the first time, abortion opponents lobbying major conservative Christian religious dominations to oppose ivf. We're seeing pushes to regulate, restrict, or even ban ivf. And those, of course, will impact people, again, who don't see themselves as abortion seekers. Right. I mean, that's probably the most big picture takeaway from Dobbs is that, of course, Dobbs affects people who do see themselves as abortion seekers and who want abortions, but it also affects a lot of other people who experience pregnancy who never wanted an abortion, don't see themselves as abortion seekers, and are still seeing their reproductive lives upended in this way.

[Dahlia Lithwick]

So this dovetails so nicely with the new book, Mary, because this is in some sense a function of personhood. Right. And the going after somebody who had a miscarriage. And it's ambiguous what caused it. The. The IVF debate, all of that is a function of sort of failing to see where personhood was gonna take us. I think the thrust of the argument in the book is that a lot of us, including some of us who watched the courts pretty carefully, thought that personhood sort of burst onto the scene after Dobbs, or maybe as part of originalism, that it's not an old notion. But your point is the notion that a fetus has personhood is an idea that actually predates Roe. And from its inception in the 1960s, the anti abortion movement was always a personhood movement. And so I wonder if you could explain for those of us who think this is a newish idea that comes about after Dobbs, that it's sort of the next mountain to climb post Dobbs, that this was the mountain and that was the case pre Roe.

[Katie Milkman]

Yeah. I mean, one of the creepy ways you can kind of check this for yourself is Google past Republican party platforms, and every Single one until 2024 calls for a fetal personhood constitution, constitutional amendment starting in the 1980s. But of course, the anti abortion movement was calling for fetal personhood even before that happened. So the idea always was, and it's worth kind of separating, what would fetal personhood mean? Because of course, fetal personhood can mean lots of different things to different people. There may be some people, for example, who say, I think abortion should be legal and I think a fetus is human, or I think a fetus is a person. Personhood in this context means not only that fetuses and embryos have constitutional rights, but. But it's come to mean in the United States that the way we honor those rights is by criminalizing things, whether that's abortion, ivf, maybe some forms of contraception. It's increasingly meant or equated justice with punishment, not with sort of doing more for people who are pregnant, or even doing more for infants, but doing more to punish people who are seen to have transgressed. So that notion, the idea that constitutional fetal rights mean voters cannot enact liberal policies on something like abortion or ivf, that started as soon as states began trying to reform their criminal abortion laws. And interestingly, it sort of started as like a strategic necessity because abortion opponents at the beginning had been saying things that just weren't working anymore, right? They were saying, well, if you legalize abortion, that's kind of like legalizing pornography, people are going to just be sexually promiscuous. Or they were saying, well, no one really needs abortion because pregnancy isn't dangerous anymore. And unsurprisingly, those arguments by the 1960s were not really working the way they had before. So personhood started as a sort of like, well, what else are we going to say? Like, if people want this reform, let's just say they can't have this reform because it's unconstitutional. But then once people on the right started making this argument about personhood, it took on a real life of its own. It became really compelling to a lot of people who disagreed otherwise on a lot of stuff and became kind of the rallying cry for social conservative derivatives for about a half a century in really remarkable ways. And Roe obviously was a problem for folks who believed in fetal personhood, because Roe, of course, said that under the Constitution, a fetus wasn't a rights holding person. Roe said there was in fact, a right to abortion. All of that needed to go before you could recognize constitutional fetal rights. But getting rid of Roe was never the end game. It was not the end game. In the 1960s, the goal had always been a constitutional decision or a constitutional amendment saying it's not up to Voters, Voters. It's essentially, the Constitution has already decided that abortion can't be legal, that IVF can't be legal, that these are questions that the courts will tell us the answer to, not the voters themselves.

[Dahlia Lithwick]

So this is the car catching the dog in Dobbs, right? Because it goes from, I think, what you've characterized as a moonshot, right? This is the dream, fetal personhood. And suddenly it's like, oh, man, we've got it. And now it's unleashed this kind of Pandora's box of all these really thorny questions that the groups hadn't kind of picked their way through. And in fact, there wasn't a meeting of minds on questions about IVF or criminal punishment. Right. Of mothers who seek abortion. And so can you walk us through how that's starting to get played out in the states in real time with out. There's not really a fully thought out program here. It's just, holy crap, we just got personhood. Let's go.

[Katie Milkman]

Yeah. So I think what happened in part was personhood used to function as. I don't know what the equivalent on the left would be, Right. Like, it'd be kind of like if you could have a new progressive Constitution that did everything you wanted and that was a way to kind of get out the vote and rally people and get people to kind of articulate, like, if you really could have everything you wanted from the Supreme Court and from the Constitution, what would it look like? And that can sometimes be really powerful, but it's also a way in which you're kind of allowed to, like, fantasize and dream aloud about things that are never going to happen. And when it turns out you don't agree on whatever it is means or what its impacts would be, like, that's cool, because you don't have to figure it out. And now I think people realize with Dobbs that it's completely possible that the Supreme Court could issue a decision saying, guess what? Actually, fetuses have constitutional rights, and states can't have ballot initiatives or laws liberalizing abortion. Like, that's not on the table anymore. And so there isn't really a consensus about. To your point, like, does that mean if a fetus is a person, does that mean we have to prosecute women and pregnant people for murder when they have abortions? Because that's the only way we do equal justice to the fetus. Does it mean we have to criminalize IVF or not? Does it mean that there can be exemptions for specific kinds of penalties? Does it mean you Even have to punish abortion as murder. Right. I mean, in a lot of states that criminalize abortion, the penalties for abortion are different from the penalties for murder. Like, is that okay? And I think people hadn't had to work out the answers to those questions and in fact had wanted not to. Right. Because that was another way to divide a movement that, like most social movements, is already divided. And you see these conflicts breaking out all the time. And people who probably follow this casually have heard stories about bills in state legislatures every session that claim to be about personhood that define abortion as murder. And these are presented as sort of of fringy, which there's some truth to, but they're more and more of the bills and they're not going away because there's this fault line now about do you have to punish women? And unfortunately for the anti abortion movement, all these conflicts are unfolding in real time. And one of the sort of meta questions hanging over the movement too, I think, is, is the movement going to be guided by what voters are willing to tolerate, or is the movement going to ignore voters and try to seek change kind of by circumventing democracy? Right. Whether that's asking the federal courts to impose things that voters would never want, or assuming the executive branch can do the same thing without the courts even intervening. So there's a democracy debate in there when you're thinking about personhood. And there's also a debate about what it even means to recognize personhood. And it gets weirder and weirder because it turns out that a lot of Americans don't equate personhood with punishment. Right. If you kind of drill down into it, I think Pew Forum did a poll like a month before Dobbs came down, and they found 33% of people said, I think life begins at conception. I think a fetus might have rights, and I don't think abortion should be a crime. So there's a subset of Americans who are looking at this and being like, what do you mean if a fetus is a person, I can't have ivf? Or what do you mean that women might have to be punished for murder? Like, that's bananas. What does that have to do with saying, I value life in the womb? So I think it's also prompting this broader reckoning with, like, why is it that in the United States States we say that if you value fetal life, that means people are going to jail? Like, that's just weird. Other countries don't think that way. It's not inevitable that we thought that way. But it's increasingly kind of surfacing that that's the way we've been doing things with all the dysfunction that's producing.

[Dahlia Lithwick]

I want to ask the question of what the polling shows about how. I mean, it seems to me that when we get these stories that just explode into the headlines about, you know, fertilized embryos being destroyed in. And suddenly, you know, we're talking about them as though these are people, right? Or, you know, stories of the police going after somebody post miscarriage. It feels as though there isn't polling to support the idea that the destruction of a fertilized embryo is a murder. But I wonder if the polling doesn't support it. And maybe this is your democracy question is part of the game here to just keep doing the thing at state supreme court levels, state legislatures, and change the zeitgeist so that people eventually become comfortable with the notion that a woman who ends her pregnancy or who. Somebody who destroys a fertilized embryo is a murderer.

[Katie Milkman]

Yeah, I think that's right. I mean, I think that it's not only to change the zeitgeist, it's also to sort of close off other ways of imagining what's happening. Because one of the things about the Alabama story that really struck me is that you had people whose embryos were destroyed, right? And it's weird that the legal system was saying to them, essentially, either these are people, or you're just out of luck. Like, then nothing bad happened to you. And a lot of Americans who've know people who've gone through IVF are like, well, how can that be? Isn't there a way to say, well, yeah, that was bad and you experienced a loss, but this isn't something that we need to punish someone for. And there really isn't a vocabulary for that. So I think part of what the personhood movement is doing is not maybe trying to change people's minds about it, maybe trying to make it impossible to imagine that there's another way of even talking about what's going on other than saying, this person needs to be punished, this person needs to be sued, this person needs to be sanctioned, which is what's been going on. And I think ultimately there's been increasingly a trend away from saying we need to persuade people at all. Right? I mean, that's one of the reasons the first thing that probably comes to mind when people think about personhood is originalism, right? It's because the arguments are not being directed to you and me or to anyone who's voting. They're being directed to John Roberts and Amy Coney Barrett. And it's easier to convince them, them that this is the future we should have than it's going to be to convince most voters who are not even happy that Roe is overturned. Right. They're not happy with where we are now, much less eager to go where abortion opponents want to take them. So I think there's been a kind of shift. That's why the 2024 Republican platform really creeped me out, because it was reported as Donald Trump is softening his position on abortion because they dropped the fetal personhood constitutional amendment. And I thought, no, what they're saying is we don't need an amendment because we have judges. We don't need an amendment because we can just get judges to say, we already have fetal personhood. Because at least when the call was for an amendment, you need to persuade people to get an amendment. Right. You need super majority support. You don't need super majority support if you have the Supreme Court. And I think that's kind of where we're finding ourselves with where the movement's going.

[Dahlia Lithwick]

I didn't expect to actually feel chilled to the bone until like 2/3 of the way through. Mary. So I really appreciate, like, you, you.

[Katie Milkman]

Rushing to beating expedition.

[Dahlia Lithwick]

Yeah, they always. I want to get back to originalism because I think it's really important, but there's one sort of thread that I want to pull on for a minute, which is the role of both religion and race in the personhood movement. And I wonder if you'd take those two one at a time simply because they are so deeply inflected and yet they're never present. Right. When you read the Dobbs decision, they're everywhere and nowhere. And I wonder if you can just talk about the origins of the thinking around personhood and the ways in which race and religion really are there from the jump.

[Katie Milkman]

Yeah. So in the 60s, when personhood arguments were first getting underway, the anti abortion movement was an almost entirely Catholic movement. And early arguments against abortion were explicitly, sometimes Catholic arguments. And that was not working, in part because there was still a lot of anti Catholicism in the United States. It wasn't working because Catholics were about roughly a quarter of the country at the time. So many people didn't subscribe to Catholic religious beliefs. And also because this was, you know, a time period when American attitudes about sex and reproduction were becoming more liberal across the board. So there was an effort, I think, to repackage what were Catholic beliefs about sex and abortion and reproduction in a way that could resonate with non Catholics, and yet still I think, resonate with Catholics. Right. Still sort of sound grounded in the same Catholic religious teachings that had prompted some people to speak out against abortion. And I should also say not all Catholics were opposed to abortion. Right. While most of the early abortion opponents were Catholics, not all Catholics were opposed to abortion or even a majority under some circumstances. So religion, I think, shaped the way personhood was talked about. And that continued to be true over time. Because of course, if you think about the modern anti abortion movement, it's, I think, predominantly a conservative Christian movement, but no longer a predominantly Catholic movement. So the religious ideas from other conservative denominations, particularly conservative Protestants, shape the way personhood was articulated over time. Because I think one other thing to be clear about, we're sort of talking about personhood as if it's like a thing. And personhood was sort of like a Rorschach test for conservatives. Right. I mean, one of the reasons they liked it is because they could make it mean different things over time. And that was definitely true. As the movement's religious composition changed with race, it's probably less intuitive to people that this would be a story about race. But one of the reasons, again, I think early personhood preponderance opponents were arguing essentially that fetuses were like people of color. And that was always an analogy that was drawn. But what they meant by that changed as racial politics changed and as the anti abortion movement became more conservative. So at the start, the general idea was white Americans cannot worry about the effects of history on groups at society's margins. What really counts is if you're physically vulnerable and politically powerless right now. So the early anti abortion movement was making this argument that really equality should be focused on people with disabilities, elderly people and the unborn child. Right. And that to a lesser extent, people of color, but that people of color and women and groups that had been historically subordinated were kind of getting too much attention for that past. And that wasn't really the point. Over time, you began to see anti abortion groups borrowing from affirmative action opponents. Right. And saying the real harm in racism is categorizing people. Right. It's not subordinating people, it's categorizing people by race, not treating them as individuals, which is what affirmative action was doing. And abortion opponents began saying that's what abortion is too. Right. It's treating the fetus as a fetus and not as a unique individual with rights. And over time, you know, the more race became a kind of mass incarceration story, the more abortion opponents began saying the ultimate kind of victims of discrimination nation in America are crime victims. Right. What who are imagined to be white middle class crime victims and the unborn are the ultimate victims of crime. Right. So increasingly there's a kind of equality story that's being told that's resonating with conservatives that's moving further and further away from what we conventionally think of as civil rights. Right. But is saying that's in fact what we mean by civil rights. And you'll still see these stories. Now, I don't know if people remember during, during the height of the Black Lives Matter protest, there was a campaign called Black Unborn Lives Matter. Right. So this kind of race analogy is still 1000% with us. And it tells you a lot, I think, about our racial politics when you drill down into what people mean when they talk about personhood.

[Dahlia Lithwick]

Right. And this is at the heart of how Clarence Thomas thinks about it still. Right. I mean, I think that it is so, so powerfully motivated by his thinking about race. And so it's hardly something that is gone. Let's pause to hear from some of our sponsors.

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[Dahlia Lithwick]

Let's return now to my conversation with Mary Ziegler. I would love you to pick up on what you started to say about originalism, which is that originalism and personhood don't sort of intuitively make natural bedfellows for, you know, some of the obvious reasons, which is nobody was thinking about fetal personhood when the 14th Amendment was drafted. And I guess I would love for you to sort of help me understand how they get braided together in a way that makes it look almost like effortless. When Justice Alito allied all of the sort of built intentions in Dobbs. And then I think maybe the ways in which marrying those two, I mean, you make the point. That's how you persuade judges, right? You persuade originalist judges by saying, oh, this is originalist. It doesn't matter what the people think. But that isn't intuitively the obvious move. It was an effort.

[Katie Milkman]

Oh, 100%. Yeah. I mean, there'll be a lot more scholarly response to the originalist arguments for fetal personhood than there's been. But there's a reason that there haven't been that many scholarly, originalist arguments for personhood until recently. Right. It's not like nobody, nobody was doing it. But it's just really hard to get around a lot of the problems with the argument. I mean, to start out with, to your point, no one who was ratifying the 14th Amendment talked about abortion much at all that we can find. No one who passed criminal abortion laws talked much about the Constitution that we can find. And the anti abortion movement of the 19th century didn't seem to think that it was compelled to do anything to advance fetal rights at all. So all of the relevant players in a story you tell about originalism aren't doing the moves you would like them to do to make an originalist case. So, I mean, I do think that it's kind of a combination of necessity. Right? I mean, abortion opponents increasingly realized that voters just weren't going to go there and they needed to do the best they could with the cards they were handed, which was the Supreme Court. It's also really a story about the conservative legal movement. Right. The Federalist society of the 80s and 90s was less comfortable with Christian conservatives than the Federalist Society is today. There's much more integration of those two movements than there was, which means there's much more comfort kind of co signing originalist arguments that are maybe not the world's most convincing or that would lead to potentially kind of radical and unpredictable outcomes. And that's a story, I think, about how the conservative Christian legal movement transformed what we think of as kind of mainstream conservative legal institutions in the United States. So that's part of what's going on too. I mean, it still kind of strains credulity. So I don't know if the Supreme Court is going to go there. And one of the interesting features of the whole original journalist pushes, neither do most people in the anti abortion movement at the moment. So you may kind of wonder, well, what are personhood proponents doing right now? They're doing things like wrongful death bills in states, they're doing things like fetal child support bills in states, they're doing fetal homicide bills. This is very much, if you remember how the end of Roe v. Wade for a long time felt like a death of a thousand cuts, until all of a sudden it was one big blow. That's where we are with fetal personhood we're in the kind of drip, drip phase of very slowly building a case, you to the Supreme Court. But that's very much the end game. And I don't know, again, I mean, with the court we have and also the court we may be getting, because of course, with Donald Trump in the White House, we may end up with a court that's more conservative than the one we currently have. I think personhood's very much on the agenda.

[Dahlia Lithwick]

I would love for you to take us there because I think you were one of the people, as I recall in the immediate aftermath of Dobbs, who was reading the personhood tea leaves in the opinion and telling us where this was gonna go and think sort of baked into how you've been answering and certainly your book, there is this tension about, you know, an anti abortion movement who for decades staked its sort of moral credibility on the proposition that we don't go after women like the mother is the victim and we're gonna make sure that clinics close and doctors are traumatized and that there are warning scripts and that, you know, whatever we have to do, but we're not going after pregnant people. And personhood, as you said, forces that issue. It changes all that. And I wonder if you can sort of walk us through if there is a more and more robust notion of personhood that is acceptable to the Supreme Court and the courts below, what are the implications? It's not even just criminalizing miscarriage. It's not even just going after physicians who put abortion pills in the mail. It's much more even than that.

[Katie Milkman]

That.

[Dahlia Lithwick]

Right.

[Katie Milkman]

I've done some oral histories with people in the movement, and they have a hard time explaining it. Right. Because if you sort of start to think it through logically, if a fetus is a person like you or I, there are no exemptions in criminal law for women or pregnant people killing anybody else. Right. And personhood proponents will say things along the lines of, well, you know, there are scenarios where we have systematically higher or lower penalties for certain types of homicides, right? So in some states, if you kill a cop, that's, you know, you have face different kind of sentence than if you kill someone else or a child or something, right? So they say, we know in law how to kind of escalate or de escalate punishment depending on who you kill. But then they don't have examples of exempting people from all kind of punishment for an act. There just isn't an analogy. And so you have essentially a movement that is driven by principles, right? By ideology. Ideology that really point in the direction of punishing everyone, including women. And then you have a political reality that points very much in the other direction. Because if you think it's unpopular to do what the movement has already done, if they were openly punishing every single person who took abortion pills or ordered them in the mail, you would see a backlash unlike anything we've seen to date. And people in the anti abortion movement know this. Right. It's not lost on them. So again, I think this is a story not just about how punitive the movement is, but about kind of this battle between ideology and political reality and whether democracy forces the movement to moderate what it's asking for or whether it can kind of give in to those ideological impulses because the democracy is so weak that there's nothing to contain them anymore. That's, I think, what that struggle is about. But of course, there are lots of other unintended consequences too, because again, like, I don't know what personhood means. Personhood doesn't mean anything objectively. Personhood is something that means different things to different people, has meant different things in different countries, has meant different things to the anti abortion movement at different points in time. So if the Supreme Court goes down this road, we don't even know what all the questions are going to be, to be honest, because people in the anti abortion movement haven't had to work them out. So we would literally be Pandora's box in that sense. Right. Like, I don't think in this conversation we can forecast every single kind of question that would come up.

[Dahlia Lithwick]

Mary, it seems to me that one way to get around this fundamental mental intractable problem, which is you can't keep criminalizing pregnant people and their actions, is to keep focusing on doctors. Right. Which is a legacy of Roe in some ways, because as we often say on this show, we forget Roe, you know, mentioned the word physician more than it did mother. And Roe was really about physicians rights in some ways. And it's never lost on me that, you know, both the mifepristone case and the Emtala case in some ways were more about doctors than they were about pregnant people. And I think that we are now seeing sort of shoved into the mix, you know, angry husbands who are going after, you know, estranged spouses for taking medication, abortion, going after the physician in New York who's putting pills into the federal mails. So I wonder if one way to get around the problem that surfaces with personhood is to just keep pretending that the mother has some, you know, unspecified special status and go after physicians over and over again. And is that something that we've seen a lot of post Dobbs, or are those just kind of outlier cases?

[Katie Milkman]

No, definitely. I mean, the argument has always been basically that women and pregnant people don't get it. And it's either that they don't get it because they don't understand what they're doing, or they don't get it because they're coerced. That's the new argument. There's litigation unfolding, personhood litigation, a challenge to Minnesota's abortion liberal abortion law. Right now that's based on the idea pretty much that all abortions are coerced. This has become a huge talk talking point. And that all, Eli, is the reality that of course some abortions are coerced. But that doesn't mean that all abortions are coerced, which has become the talking point. It also doesn't mean, which is kind of the corollary, that all reproductive coercion is abortion. Right. I mean, there's lots of evidence to suggest that people coerce people to remain pregnant, particularly post dobbs. So I think that has been the approach essentially to say that women and pregnant people are not actually making these decisions that themselves. One of the kind of takeaways from that is that the movement is trying to expand the dragnet not just to include physicians, but to include all the other people who are participating in this alleged misleading or coercion. Right. So we've already seen threats to use laws on aiding or abetting or conspiracy against people in abortion seeker support networks. There's legislation that's being considered this session that would go after abortion funds that support or defray costs for people who are traveling for abortion donors to abortion funds. Right. So if you have contributed to that kind of organization, websites that provide information about how to get medication abortion, not even websites that just sell medication abortion, although those too. But even like potentially something like the Mayo Clinic or something that provides information about what mifepristone is, Internet service providers that host the websites. So I think the impulse to date has, has been to go after literally everybody else, right. It's not just the doctors. And that's created some of the tensions. You see, it's one of the reasons why, you know, the attorney General of Louisiana is trying to prosecute a doctor in New York instead of a person in Louisiana. Because if you're committed to personhood and you're committed to not punishing women and pregnant people, you kind of have to look elsewhere. Right. And Looking elsewhere means a lot of potential threats to the right to travel, to freedom of speech. These questions about cross border conflicts that we really haven't seen in recent history and fueling a lot of that as personhood. Right. I mean that's kind of in the backdrop of what we're seeing in a lot of these different post Dobbs messes.

[Dahlia Lithwick]

Again, I'm asking you to prognosticate and I know it's not fair, but if not you, who? Where's personhood gonna come from? Is it gonna come from Comstock stroke of the pen? Is it gonna Supreme Court in the next year or two saying, oh, look at the seeds we planted in dubs and here comes personhood. Do you have any sense of how this is going to become the fully flowered notion of personhood that's really, as you said from the beginning, been the end game since the 60s?

[Katie Milkman]

Well, I don't think it's gonna happen in the next few years. I think if you're kind of watching for like where the next canary in the coal mine is, state supreme courts are the places. I mean, the Alabama Supreme Court all but sent an engraved invitation to someone to come back and say there's constitutional fetal rights that are enforceable, that could happen. The Florida Supreme Court has been dropping all kinds of hints that it thinks the same way. So I think it's sort of like a funhouse mirror version of what happened with marriage equality, right. Where you had a lot of state supreme courts weighing in in certain ways about a claim and then those state supreme court decisions were sort of massaged into an argument for federal constitutional change. I think that's probably what we're looking at here. That could change, of course, if there's sort of for personhood proponents, like an opportune retirement or two. It's hard for me to imagine, you know, even Brett Kavanaugh at this point going for fetal personhood, because I think he was trying to tie himself to the mast. And Dobbs with his language about, you know, the Constitution is neither pro life nor pro choice. And generally, of course, Brett Kavanaugh is the sort of person who like does the thing and then tries to convince you that he's not a bad person for doing it. So I wouldn't say be surprised if he did that with personhood, but it would be a little surprising if he did it this quickly with personhood. I think he would, you would sort of need to give him more political cover. And I think the feeling within the anti abortion movement is that Kavanaugh liked the political cover given to him by lots of states calling for Roe to be overruled. Right. He made a point of that in Dobbs. He was sort of like, how am I supposed to ignore this chorus of voices saying Roe is bad law? Like, I'm just, you know, doing democracy here, folks. I'm just listening to the people. So there really isn't that chorus with personhood yet. Anti abortion groups are trying to create it in state supreme courts and state legislatures. So I think what you see in the next couple of years is this affecting people in individual states first. But all of those individual state conflicts are being engineered with an eye to going back to Brett Kavanaugh. Right. Even if we don't go there, don't see it immediately. I think people are going to try to go to SCOTUS sooner. Like this Minnesota case is gonna. Whatever's gonna happen is gonna happen. It's gonna go to the 8th Circuit, which is not the worst place to be if you're abortion opponents. And it might go, but I don't know if SCOTUS is ready for it. And I don't know. It's a really interesting question. Like, I mean, you would imagine SCOTUS would just find a way to get rid of it, right? Like somebody won't have standing or something if they don't. If they don't want to go there yet. They may just sort of find a way to kick the can down the road. But you never know with these people. Right? So my guess would be this is going to be a state thing before it's a federal thing. But I was very publicly wrong about the timing of Dobbs. Like, I think I wrote a New York Times editorial about, like, why, you know, like, you can't push John Roberts. Like he's going to go the pace he's going to go. And Dobbs was decided like five minutes later. So my sense of how quickly the Overton window is shifting has proven wrong in the past and may once again prove wrong.

[Dahlia Lithwick]

So, yeah, I mean, I guess worth noting that it was Brett Kavanaugh who was like, nothing in this opinion should be construed to say that interstate travel would be burdened. That would be crazy, right? So, ha ha ha. I guess I want to stop for one second before we sign off and center the stories lost in the coverage. There are women who are being turned away from emergency rooms. There are people. We talked to Amanda Zdaroski a year ago going septic in the parking lots. Is there still a sense that this is A real exigent, urgent story that is fundamentally changing the way we organize our reproductive lives? Or is it one of those things where the zone has been flooded with shit and almost nothing breaks through, and with every passing day, we're a little bit more inured to the sort of human catastrophe and as you said, you know, the maternal health outcomes and the outcomes for babies. I mean, nothing good happening in medical schools in red states right now. Nothing good happening in terms of actual suffering and loss of services. Is anything capable of breaking through, Mary, or have we just moved on to tariffs?

[Katie Milkman]

I think things are capable of breaking through. I mean, I think part of what's happened after Dobbs is that the people with the privilege to do the most have kind of accepted that there are workarounds for them, because there are. Right? I mean, abortion numbers haven't gone down. And the reality is that Republicans hold the power to change that tomorrow, whether that's people in the Supreme Court, whether that's Congress or. Or whether that's Donald Trump. So do I think that if Trump announced that there was going to be no more telehealth option for mifepristone, that that would be below the line? No, I don't do. I think if SCOTUS got a decision about can Louisiana prosecute a New York doctor, that would be below the line? No. So it's kind of a mixed bag. I think we've underestimated how much people still care about this issue, which is a story Republicans told us after the 2024 election that, you know, Kamala Harris running on reproductive rights was a bust because it turns out Americans just care about how much, eg, there was truth in that story. I think there's also something profoundly wrong about that story, which is, I thought both Harris and Biden did a terrible job explaining the stakes of the election for reproductive rights. They essentially were saying, Donald Trump's bad. He gave us the end of Roe. That was true. But then a lot of voters were like, okay, but I mean, you're not going to do anything about it. Kamala Harris, like, you can't protect Roe in federal law. And Donald Trump has told us he's not going to do anything about it. He said he's going to just leave it to the states. So I think that there's a real profound complacency among people who can do something about it. But that complacency is rooted probably in a lie. Right. So if it becomes clear that Donald Trump is going to do something about it and the status quo gets worse again, and it gets worse again in ways that affect the people who've been able to work around Dobbs so far. I think we're going to see that it matters even more to people than we already think. So I think there's a story in which, you know, we are buried in the wave of crap, but we will surface again if we see the wave getting much, much higher than we previously imagined. And I think that's more likely than not. Although I, you know, I think predicting the Trump administration on these issues is, is, like, pretty hard. I would be surprised if there aren't significant national changes at some point in the next four years that affect people who haven't been touched by this as much yet.

[Dahlia Lithwick]

Mary, I'm going to ask you the question I end with on almost every show at this point, which is my sense is that listeners want to be told by someone as smart as you what they ought to be doing and where to direct resources and energy and efforts and what you think in the face of as you're suggesting. And I really want to lift this up again. We're in a different world, both with medication, abortion. We're in a different world. It's not the world of surgical abortion. We're in a different world in terms of personhood. But what are you telling folks, given that the landscape is really changing and RFK Jr. God knows, and the FDA, God knows, what are you telling folks that they can do to put actual skin in the game and to try to protect the rights that they have seen eroded just in the last few years?

[Katie Milkman]

I mean, I think obviously the usual things like donating to causes and voting really matters. One of the things I always think of as a historian is that if you feel torn right now because you care about reproductive issues, but you're also just worried about the health of democracy, don't be, because they're interrelated. And this is something, if you study conservatives who work on the abortion issue, they have understood this from the jump. So they have been involved with voter ID laws. They were involved in litigating to change the result of the 2020 election. They were involved in campaign finance from the very beginning. So if you sort of feel that the democracy is struggling right now and that's where you want to focus things, and you're worried that's giving up on reproductive rights. It's not. It's the same thing. Right? I mean, everybody who disapproves of reproductive rights already knows this. So it's time we wake up to that, too. So I think the good news is anything you feel like doing right now that would help the democracy, including obviously anything supporting people who do work on mifepristo. It doesn't need to be that, though, is the point. It can be lots of other things and you'll still be helping.

[Dahlia Lithwick]

I love that answer because I think it really does go right to the heart of the conversation you and I had right after Dobbs, which was people being like, how could this happen? Like, nobody wanted this. And it was because democracy itself was kind of too weak to contain what the public will was on abortion. So that's kind of gotta be the place that we work. And as you say, the two are so inextricably bound up that we have to start thinking of it in those terms. Mary Mary Ziegler is the Martin Luther King Jr. Professor of law at UC Davis Law School. She is an expert on the law, history and politics of reproduction, healthcare, and conservatism in the US from 1945 to the present. The terrific new book is called the New Civil War Over Reproduction. It is out this month from Yale University Press. Mary it's always, always illuminating and, yes, slightly chilling to talk to you. I'm so grateful, really grateful for this conversation because I think I lear a ton and I think I finally put a couple pieces together that have been just kind of like pinging around without a home. So thank you so much for making time with us today.

[Katie Milkman]

Yeah, anytime. I'm happy to to make you feel freaked out anytime you need.

[Dahlia Lithwick]

And that is all for this episode of Amicus. Thank you so much for listening and thank you so very much for your letters and your questions and your comments. You can keep in [e-mail] or you can find us at facebook.com amicuspodcast don't.

[Mark Joseph Stern]

Forget to slide on over to the Amicus bonus episode right after this one. Leah Littman is right now settling into the plush sofas of the smokeless Cigar bar to discuss her new book and how it can help us think about a very significant religious liberty case that will be argued at the Supreme Court next week.

[Dahlia Lithwick]

If you are not yet a Slate plus subscriber, you can join us in the Amicus Rumpus Room of Doom by subscribing to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Or you can visit slate.com amicusplus to get access wherever you listen. Sara Burningham is Amicus's senior producer. Our producer is Patrick thank you to.

[Mark Joseph Stern]

Katie McMurran for the field production.

[Dahlia Lithwick]

Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, and Van Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.

[Mark Joseph Stern]

Hi, I'm Josh Levine. My podcast, the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.

[Leah Littman]

The great lesson of this for me.

[Katie Milkman]

Is that people will come to their.

[Leah Littman]

Own conclusions based on what their prejudices are.

[Mark Joseph Stern]

Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.