Fetal Personhood: Last Week Tonight with John Oliver (HBO)

We're actually going to dive straight in with our main story this week, which concerns pregnancy.A great way to still not get a seat on the subway.Specifically, I want to talk about something called fetal personhood.The concept that a fetus is, from conception, a separate, unique human with its own rights distinct from the person that's rather unavoidably inside.The concept is, unsurprisingly, usually associated with the anti -abortion movement.And post -Dobbs, it's been getting a lot more attention.

Fetal personhood is a once fringe idea now at the center of anti -abortion advocacy.The fetal personhood movement aims to grant full legal rights and protections to fetuses, and in some cases, embryos.About a third of states have established fetal personhood by law or judicial decision.

OK, first, nice Horton hears a who sign there, though.You should probably know, according to Dr. Seuss's biographer, back in the 80s, he actually threatened to sue an anti -abortion rights group that used that quote on its stationary, after which they backed down, which is a little surprising, given, stay out of my fucking business, is not usually a message these groups tend to respond to.The fetal personhood idea can be embedded in laws in a bunch of different ways, and some can initially sound appealing, like ones that make it a crime to cause the death of an unborn child during an act of domestic violence.But...Once the law recognizes a fetus as a separate victim, if you get pregnant, that same logic can quickly be weaponized against you and in all sorts of ways.

hundreds of women across the country have been arrested or lost custody of their children for reasons related to their pregnancies.Brittany Watts, a 33 -year -old black woman, says she went to the hospital multiple times after bleeding during her pregnancy.Watts returned home where she suffered a miscarriage.

Now she's being charged with abuse of a corpse.A woman from Alabama suffered a miscarriage after being shot.and now she's being charged with manslaughter for the death of her unborn child.

Wow, that is bleak.If you suffer a miscarriage after being shot, you shouldn't be charged with manslaughter.That's one of those sentences I never thought I'd end up needing to say out loud, like, cocaine pollution gives salmon wanderlust, or young Richard Nixon was hot.Yikes, by the way, I would let that guy break into my Watergate hotel.And that is just the beginning here, because over the years, the fetal personhood has been the basis of legal cases involving everything from a pregnant woman who fell down a flight of stairs and who was charged with attempted fetal homicide, to a bonkers story involving this woman.She was in the middle of a long delivery and was a professional doula, by the way.

She'd had three prior C -sections and hoped to avoid a fourth, only to find the situation suddenly out of her hands.

She was in her 12th hour of labor in the hospital when Sharice Doyley suddenly found herself in front of a Florida judge from her hospital bed.A nurse wheeling in a tablet with the judge, doctors, lawyers, and others on Zoom.That was exactly when I found out that we were going to court.

Video obtained by NBC News shows the 32 -year -old black woman in her hospital bed pulled into a virtual emergency court hearing as Florida state attorneys on behalf of the hospital sought a court -ordered c -section.

Nobody is here to speak for me.

When Doyley asks if she can call a lawyer or a patient advocate, the judge says there's not a constitutional right.

to counsel in one of these proceedings.

Holy shit, that is a fucking outrage.Every part of that is wrong, including that it should be illegal to make a woman giving birth get on a video call of any kind.I don't even like being on a Zoom when I am not giving birth.And for the record, how 12 hoursinto labor, was she composed enough to ask for counsel so calmly there?She could have reasonably screamed, shit, piss, cock, motherfucker, and changed her Zoom background into a million middle fingers, and any smart judge would have said, you're right, that's an entirely fair point.

Fetal personhood isn't just a fringe idea.It's been a quiet goal of the anti -abortion movement for decades now.But it's been picking up real speed in recent years.In 2023, a group of anti -abortion lawyers and activists even explicitly set a post -obs goal of recognizing fetal personhood.And with this Supreme Court, I frankly wouldn't bet against them.So given all of that tonight, let's talk about fetal personhood, where the idea comes from, all the surprising ways in which it can be applied, and where things could be heading next.

So let's start with the fact that the basic concept of a fetus being its own person with distinct rights is nothing new.In fact, here is one of its major proponents laying out the argument in 1984.

I believe that until and unless... someone can establish that the unborn child is not a living human being, then that child is already protected by the Constitution, which guarantees life, liberty, and the pursuit of happiness to all of us.

Yeah, there he is.It seems you cannot trace the source of any modern problem without a cameo from this messy bitch.He truly is the Forrest Gump of societal ills.But the thing is, Reagan could believe that all he liked.it still wasn't law in the U .S.

In fact, when the Supreme Court decided Roe v. Wade, it explicitly rejected fetal personhood, stating, the word person, as used in the 14th Amendment, does not include the unborn.However, it did leave the door open a crack by holding that the state has an important and legitimate interest in protecting the potentiality of human life.And that was no small thing, because it meant that as long as the stateas states didn't explicitly ban abortion, they were legally able to expand protections for fetuses.And for years, many did just that.Some states defined a person to include a fetus throughout their criminal codes, while in other places, prosecutors expanded their use of child abuse and neglect laws to police the conduct of pregnant women.

But after Dobbs, the guardrails fully came off.because state legislators felt that they could push much more aggressively for foetal personhood legislation, with some pretty creative arguments, probably none more so than the one this North Dakota state legislator made last year.

We have to be brave enough, righteous enough, and have enough integrity, not only to our oath of office, but to all the claims of being pro -life and to being Christian, and actually do what the word of God says.And in case you don't know if a baby at conception is human or not, I would like you to show me the first kangaroo or plant that came out of a woman's womb.

What on earth are you talking about?Obviously no woman is pregnant with a kangaroo.I wouldn't blame any woman who wanted to fool around with one, especially this guy or indeed this one right here.But that is not the point, is it?The point is, here is what's tricky about all of this.One side is saying, hey, a woman should have a right to control what happens in her own body, and the other is saying, so you think you give birth to a kangaroo?

And I honestly don't know how we meet in the middle there.But the obvious consequence of these laws is they treat the individual carrying the fetus as something less than a full human.And the very moment you're pregnant, you become merely a means to an end.And it is not like some legislators have needed much encouragement on that front.During an interview about an abortion law in Oklahoma in 2017, this guy, its sponsor, referred to pregnant people as hosts.and his justification for doing so wasn't ideal.

When I use the term host, it's not meant to degrade women.I actually went and Googled that, and I went to Webster, and I couldn't find a better term.

I mean, congratulations, I guess, on going to Webster or whatever.But there are only a handful of situations where it's acceptable to call a woman a host if she works front of house at a restaurant, if she invites you over for dinner, if she has her own talk show, or if you're talking about Annabelle, host to the demonic spirit permanently trapped inside her.And the thing about fetal personhood is it can be used not just to limit abortion, but to criminalize other conduct during pregnancy seen as jeopardizing a fetus in any way, like drinking or drug use.And look, no one is saying that it's a great idea to drink or take drugs while pregnant.After all, you don't want your kid to come out too cool.But for many substances, the risks to a fetus, while real... are actually far more complex and often far less clear -cut than the law assumes.

The problem is, the law can take a zero -tolerance approach, and unfortunately, many hospitals drug -test pregnant women and their newborns, often without their knowledge, and in at least 27 states, they're required by law to alert child welfare agencies about a positive test.But that is a big issue, especially given drug tests can be notoriously inaccurate.Just listen to this woman describe what a nurse told her right after she'd given birth to her second child.

She told me that my drug screen tested positive for opioids.For morphine, specifically.

Katie says the test results didn't make sense.She had never taken any opiates or illicit drugs.But that day before coming to the hospital, she did have an everything bagel for New Year's Eve.Katie was only allowed supervised time with her children.And although she was breastfeeding, she had to leave her house at night.

I would leave the house and I would scream in my car because I was so devastated to leave her.Sorry.

No, it's okay.What was that like?

It was torture.I mean, it was pain I've never felt before.

Katie, did you feel that there was a risk that if you didn't follow everything you were told to do, you could lose your children?Absolutely.

Yeah, all of that over a fucking bagel.It should not be possible for your life to get fucked up that badly just based on what you had for breakfast.Unless, of course, the breakfast in question is Honey Smacks, in which case, honestly, you kind of deserve whatever happens to you.You're a bad person.And the thing is, it's common knowledge that those drug screens are easily misinterpreted and often wrong, with false positive rates as high as 50%.But if you need convincing any further, please enjoy this lawyer that they talked to for that story, who brought a magnificent visual aid with her.

Here's a cup of my urine, and if I give it to you, you could test it.Maybe it's positive.But I can't tell you if I'm addicted, I'm dependent.And yet, for thousands of women in this country and families, probably millions, a drug test is used as a parenting test.

OK, so a few things.First...I'm not sure that's quite as exonerating as you want it to be, as being able to produce a jar of piss unprompted might be the most definitely -on -drugs behavior I have ever seen.And also, while I'm completely on that lawyer's side, I can't help wondering if she's had a cup of water today.And even if she has, would she like meget her another one?

And referrals to law enforcement over alleged drug use during pregnancy are not remotely uncommon.One investigation found in a six -year period, at least 70 ,000 such cases across 21 states, a number which is almost certainly an undercount.And in many cases, the referrals began with false positive results from flawed drug tests.But look, let's acknowledge that sometimes a positive drug test does indicate that someone has used drugs.Well, to hear some lawmakers tell it, we need to criminalize that, because how else are we gonna encourage expectant mothers to clean up their acts?

You use the carrot and the stick.You know, the stick is, hey, this is hanging over my head.If I don't get clean, if I don't get rid of this drug use, then I'm gonna go to jail, and I may lose my child.But...If I test negative, if I do a good job of getting clean, I'm gonna get to lead a normal life with my child.

Wait, that is just a terrible analogy, because if the stick is the fear of going to jail, and the carrot is getting to lead a normal life with your child, then it feels like the scenario that you are describing there is the same as the answer to the question, what has Owen Wilson been up to lately?By which I mean, mostly stick.But doctors will point out some key flaws with that approach.First, quitting drugs cold turkey can cause complications that trigger miscarriage or an early labor.And second, terrifying expectant mothers with the threat of jail time carries its own set of risks.

Scaring the mom to the point that she's not coming to get health care during her pregnancy or not disclosing her drug use so that she can get the support and treatment that she needs, none of those things are protecting the baby.Putting the mom in jail and taking the baby away is not protecting the baby.There are lots of unsafe things that women do during pregnancy.I might recommend that they take a step back.for diabetes and they don't take it, and their sugars are really high, and that's very harmful to them and their baby, but no one's putting them in jail or taking their baby away.

Of course.Right, there are plenty of things women shouldn't be allowed to do while they're pregnant, but we let them anyway, like eating sushi, or bungee jumping, or driving, or math, or is anybody going to stop me right now?I'm listing things that I, John, think women shouldn't be able to do.Someone should have jumped in and stopped me by now.None of you are my real friends.That was a test, and you all failed.

We are in a fight right now.The point is...Babies clearly do better when their moms go to doctor's appointments, and ideally, are not thrown in jail as part of a bullshit carrot and stick approach.And the way some of these laws work in practice is an absolute nightmare.That woman you saw earlier is by no means the only one who wound up dragged into court over a state's concerns for her fetus.

Take what happened to this Wisconsin woman who'd been using meth, but when she learned she was pregnant, immediately stopped.She voluntarily checked into a hospital, seeking help for depression and other issues, while there, a urine test came back positive for drugs.And when doctors asked her about her past usage, she was completely honest with them, and for good reason.

My decision to tell the doctors about my drug use was solely so that if I did anything wrong and they could give me something that would help my baby because of what I had done, I had no hesitation, because he was the only thing I was thinking about.The ER doctor was like, don't worry.All that matters is that you're here and you're getting help now.He's like, your baby will be fine.He left the room and it started from there.

Now, as you can probably guess, things didn't go great from that point on.which shouldn't really be a surprise, because, and it started from there, isn't generally the lead -in to an uplifting story.It's an ominous set -up, right up there with, it was a dark and stormy night, or, welcome, welcome, welcome to last week tonight.And what followed was a fucking nightmare, because when she tried to leave the hospital, this happened.

When the social worker came into my room and said, there's a hearing.We need you to come to the conference room right now.It was a shock.And then all of a sudden, like there's a speaker phone in the middle of the room and she's putting a judge on.

This is the time and date set for a temporary physical custody hearing.The guardian ad litem for the unborn child is Michael Schiffler.Ms. Groff, what's the county's position on where Ms. Blacher is going to be placed until the child is born?

I didn't know what was going on, and the first thing I said was, I don't want to talk unless I have a lawyer.

The 14 -week -old fetus had a lawyer at this hearing who was taking a position adverse to Tammy and was represented by counsel, where Tammy, who had asked for a lawyer, did not have one and was denied one.

Yeah, the fetus had a lawyer, but she didn't.And remember, this happened when she was just 14 weeks pregnant.At that point, you may not even be able to tell the sex from an ultrasound.Honestly, if you tried to do a gender reveal that early, the closest you might get is, it's a plaintiff.And the state didn't allow her to leave the hospital on the grounds that doing so was contrary to the unborn child's best interest.In the end, after she refused court -ordered inpatient drug treatment, she was jailed for 18 days, including about 36 hours in solitary confinement, which is arguably a weird thing to do to someone whose health you're supposedly trying to safeguard.

And amazingly, it can get even worse, because unfortunately,personhood laws, pregnancy loss can create yet another path into the criminal system, with miscarriages and stillbirths, sometimes treated as suspicious.There are multiple stories of women being investigated or even charged with crimes, including murder, following a pregnancy loss, which is utterly bonkers, given that every year in the U .S., there are approximately five million pregnancies.And of those, about a million end in a miscarriage, and over 20 ,000 end in stillbirth.

And some of the worst consequences of everything that you've seen tonight have fallen on women like Cherry Mason, who tested positive for drugs at the hospital after a stillbirth.She wound up taking a plea deal for manslaughter as a result, not because she thought she was guilty, but because, in her words, I knew the way that it works here in Oklahoma.She not only got a 12 -year prison sentence, which took her away from her other children, She was also required to register with the state as a violent offender upon her release.And the whole situation is summed up by her daughter pretty nicely.

It was up to the DA, and he basically said they're making an example out of her.I actually said my mom's more than an example.Like, we need her here.If you want to get to the core of the problem, you know, maybe make some kind of system.to where we can help people with addiction a little bit more.I don't...

Sometimes I really don't think that's what they want, though.I don't think they... they wanna just... they wanna help people with addiction.I think they just wanna make the people with addiction go away.

Yeah, that is fucking awful.And honestly, if that had happened to my mom, I think I'd also have smoked one K2's worth of cigarettes.And look, those who push fetal persons will insist that it's based on a principled stance about the sanctity of life from the moment of conception.But, there was an interesting moment two years ago that exposed a bit of a crack in that argument, and it concerned this bizarre news story out of Alabama.

This morning, a first -of -its -kind decision by the Alabama Supreme Court.that could put families' access to fertility treatments in the post -Roe era at risk.The court determining frozen embryos qualify as people under its state law, ruling unborn children are children without exception based on developmental stage.The chief justice, in a concurring opinion, quoting the Bible, citing the sanctity of unborn life.The case in question involved a patient who managed to access freezer storing frozen embryos at an Alabama fertility clinic.The patient picked up multiple embryos and mistakenly dropped and destroyed them.

The state's high court says that patient can now be held liable in a wrongful death lawsuit.

Okay, setting aside the weird Mr. Bean antics of that person walking into a freezer and juggling frozen embryos for some reason, that might actually be a pretty useful logic test, because I would argue anything that you can accidentally spill just isn't a person, yet.That ruling was following the fetal personhood argument to its logical conclusion, because if every fertilized egg is a person, that would mean that every IVF clinic, which need to produce a lot of embryos to ensure success, probably then needs to be shut down.as they wouldn't just be storing extra embryos to maximize the chance of successful implantation.Under that logic, they'd essentially be warehouses where human beings regularly die.And we frankly don't need any more of those, given that Amazon has got that beat nicely covered for us.But in the wake of that ruling, there was intense public outcry, and Alabama suddenly rushed through a law aimed at protecting patients and providers from legal liability when embryos are damaged or destroyed during IVF.

And I've got to say, it is pretty telling that many of the often men pushing for fetal personhood are completely unable to defend that double standard.In fact, just watch Senator Tommy Tuberville,pictured here in natural poses that scream, I've touched footballs, get asked about that judge's ruling right after it happened.

Do you have a reaction to the Alabama Supreme Court ruling on the fact that embryos are children?

Yeah, I was all for it.We need to have more kids.We need to have an opportunity to do that, and I thought this was the right thing to do.

IVF is used to have more children, and right now IVF services are paused at some of the clinics in Alabama.Aren't you concerned that this could impact people who are trying to have kids?

That's for another conversation.People need to have that.We need more kids.We need the people to have the opportunity to have kids.

Senator, what do you say to the women right now in Alabama who no longer have access to IVF, who will not, as a result of this rule?What do you say to them?

Well, that's a hard one.It really is.It's really hard.Because, again, you want people to have that opportunity.And that's why I was telling her, we need more kids.

Okay, okay, enough.Can we please agree?No more laws about women's bodies made by men who've at some point definitely Googled, when girl put in tampon, why not cum?Look, what the rhetoric used to justify fetal personhood, in practice, it effectively treats women as incubators.As that piss lawyer from before, complimentary by the way, points out, they're effectively stripping women of their rights and autonomy.

There is no way to add fertilized eggs, embryos, and fetuses to the Constitution without subtracting pregnant women.If we pass laws that treat fertilized eggs, embryos, and fetuses as if they're entirely separate, then women will also be subjected to a permanent second -class status.

Exactly.Women would effectively be second -class citizens, or as this arsehole likes to call them, hosts.Though remember, he looked it up in Webster's and apparently,that makes it fine.So, what can be done here?Well, in some states, legislators have introduced bills designed to highlight just how stupid these laws are, like Mississippi's Contraception Begins at Erection Act, which proposed imposing fines of up to $10 ,000 on those who discharge genetic material without the intent to fertilize an embryo, which frankly means I'm about to owe a lot of money because I've now seen this picture and I need to do something about it.

But look, much more serious...Solutions can include states repealing or removing fetal personhood language embedded in state law, or at the very least, when they pass laws that recognize the loss of a pregnancy, do so without punishing the person who was pregnant.We could also end secret drug tests in hospitals, which to their credit, some have done.At one in Connecticut, doctors are now directed to test only if doing so will inform medical care.And since that policy changed, it's curbed unnecessary child welfare reports, which dropped by almost 50 % without harming babies.In fact, since then, not a single baby came into the hospital with uncontrolled withdrawal symptoms.

And I know, this story has been bleak and very scary.So, if you are pregnant, and live somewhere where you're vulnerable to the legal perils that you've seen tonight, you should know organizations like Pregnancy Justice and If, When, How run legal helplines that you can contact at these numbers.I hate that that is necessary, but we are where we are.And with any luck, we won't stay here for long.Because look, even planned, relatively low -risk pregnancies are obviously life and body -altering experiences, and it does not seem radical to me to want to be able to control your own life and body throughout that experience.And hopefully one day, we'll be able to finally get to a point where no one and nothing, from idiot politicians to fucking everything bagels, can take that from you.