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A

1:49

heads up, this episode has stories

1:51

of abortion and pregnancy loss

1:57

I'm Julia Longoria This

1:59

is More Perfect perfect. I don't have

2:01

any particular pride in

2:04

the original Roe v. Wade decision.

2:07

I mean, I never really thought about the

2:09

viability of viability.

2:14

Last week,

2:15

we heard from a judge and a clerk. Two

2:18

of the men, who 50 years ago

2:20

tried to answer the question of abortion

2:23

in America. I just thought, you

2:25

can't abolish her right, but you can

2:27

limit it. And they settled on a compromise.

2:31

One that was flawed from the start. The

2:33

viability line.

2:35

Now the Supreme Court has thrown out

2:38

that line. And lawmakers

2:40

across the country are scrambling to write

2:42

new lines, new rules for when

2:44

it's legal to get an abortion or

2:47

if it's legal at all.

2:53

Today on More Perfect, chapter

2:55

two of our two-part series. What

2:58

if abortion law wasn't

3:01

shaped by men at the Supreme Court? What

3:04

if it was written by people who know

3:06

what it's like to be pregnant? I

3:09

don't think people see me as a person that

3:11

would have had an abortion. I present

3:14

anybody else trying to define what happened

3:16

to me. I think I always

3:18

go back to, we have

3:20

to look at what drives someone

3:22

to have an abortion. And why is that person

3:25

at 26, 27, 28 weeks desperate to have an abortion? What

3:30

are the circumstances?

3:31

That's the key.

3:38

Stories of women

3:40

who fought battles within their own

3:42

bodies and who now find themselves

3:45

on the front lines of the next legal battle

3:47

over abortion in America.

3:59

the surface of true

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This is More Perfect, I'm Julia Longoria.

4:41

For every case the Supreme Court decides, members

4:44

of the public, people not involved

4:46

in the case, can submit additional

4:49

arguments for either side. They're

4:52

called amicus briefs. The court

4:54

usually sees about a dozen per case.

4:56

But in Dobbs, there were more

4:59

than 140. Amicus

5:02

briefs allow the justices to try

5:04

on new arguments for size. They

5:07

could be the basis of tomorrow's decisions.

5:11

And one brief

5:11

in particular stood out to reporter

5:14

Gabrielle Burbé.

5:20

Good morning. Hi, is this Mary?

5:23

This is Mary. Mary Browning

5:25

is a lawyer who wrote a brief on behalf of

5:28

the Justice Foundation. I think

5:30

the best way to sum it up is

5:32

when does life begin? It begins

5:34

at the beginning.

5:36

It's an anti-abortion Christian organization.

5:39

And in one sense, her argument wasn't

5:41

very surprising. She wants

5:43

to move the viability line

5:46

all the way back to conception.

5:49

The person is a person no matter how small.

5:52

The person is a person no matter which

5:54

side of the uniform. Her reasoning

5:57

is that with technology, like in vitro

5:59

fertilization, you can make even

6:02

an embryo in a petri dish viable.

6:06

And this kind of argument is gaining

6:08

momentum in the courts. It's

6:10

called personhood. The

6:12

idea that a fetus from the moment

6:14

of conception has constitutional

6:17

rights, banning all

6:19

abortions. What made you

6:21

get connected with the Justice Foundation? I

6:24

really got connected with the Justice

6:26

Foundation from my own experience

6:29

as having been a person that has experienced

6:32

abortion. Wow.

6:37

Thank you for sharing that. I

6:40

didn't know that. It'd

6:43

be easier not to say anything, but

6:46

I don't know that there's wisdom

6:48

in it. Yeah.

6:50

Mary, you felt in order for me to understand

6:53

how someone who has had an abortion

6:55

becomes anti-abortion.

6:58

I had to understand the story of what happened

7:00

to her as a teenager.

7:02

I was 18.

7:04

I had just graduated high school. It

7:06

was 1976. She was living

7:08

in small town Missouri with Catholic parents.

7:12

And at 18 years old, she

7:14

was engaged.

7:15

I was getting married to an abusive

7:18

alcoholic, and I found out a week before

7:20

our wedding that I was pregnant.

7:23

When I called him, he said, well,

7:25

you need to have an abortion. And I

7:28

think I was surprised

7:31

that he said that, but

7:35

I couldn't imagine going home and talking to my

7:37

parents by myself. And so

7:39

I just didn't know, okay. Mary

7:42

felt conflicted, but

7:45

I think at the time, what was being

7:47

said, it was, you just have a clump of cell.

7:50

It doesn't really matter.

7:52

Just three years earlier, the Supreme

7:54

Court had decided Roe v. Wade and

7:56

made abortion legal up until

7:58

the viability line.

8:00

The U.S. Supreme Court said it was okay,

8:02

so it must be okay. So

8:05

Mary booked the appointment, and five

8:07

days after her wedding, she had an abortion.

8:10

During the abortion, I dissociated. She

8:14

says afterwards the doctor

8:16

scolded her. She thought she

8:18

was 12 weeks along, but he told

8:20

her it was more like 16 weeks, and

8:23

that she should have known better. That

8:26

haunted her. I felt shame

8:28

that I was having sex. I felt

8:30

shame that I was pregnant. I felt shame that I'd

8:33

had an abortion.

8:34

So I thought I could kind of hide the secret

8:37

and never have to deal with it.

8:39

I sort of put it in a compartment

8:41

and closed the door in my brain.

8:44

And it's like,

8:45

okay,

8:46

that problem was taken care of.

8:48

Now I'm going to live my life.

8:53

She eventually left her abusive husband,

8:56

went to law school, and became a lawyer. She

8:59

practiced family law and specialized

9:01

in child abuse and neglect cases. And

9:04

that whole time, she kept her abortion

9:07

a secret.

9:08

I didn't talk to people about it for

9:11

years. It wasn't like I had girlfriends

9:14

and I talked to my girlfriends about it. I didn't tell

9:16

anybody. As

9:18

she was living her life, Mary says

9:21

the shame and the grief she felt about

9:23

her abortion, they caught up with

9:25

her, and she felt alone.

9:29

There was a lot of talk on

9:31

the one side about how good it is

9:33

and how it's the right thing, but there wasn't

9:36

much talk about, no, I

9:38

had one and I regretted

9:39

it.

9:41

What was the turning point for

9:43

you? Well,

9:45

I think when I met other women that

9:49

were talking about having had an abortion, that's

9:52

when I had become connected with the Justice

9:55

Foundation,

9:56

where women

9:58

that have been hurt by abortions. have come for

10:00

me. The

10:04

Justice Foundation doesn't just litigate

10:06

anti-abortion cases. It

10:08

also offers support to people who regret

10:11

their abortions. Mary

10:13

got involved with the foundation, and she

10:16

met other people who also regretted

10:18

their abortions.

10:19

Together,

10:20

she said they talked about what they lost

10:23

or who.

10:25

Yes, most of us have

10:28

named our babies. We have an idea

10:30

of how old they would be. I

10:32

had an abortion, and it was a mistake.

10:35

Regardless of if our Supreme

10:37

Court said this wasn't recognized

10:39

as a human or a person,

10:41

I know this was my baby.

10:44

I know that now. Regret

10:47

after abortion has been a major focus

10:50

of the anti-abortion movement. In

10:52

the 2000s, Justice Kennedy even

10:55

wrote about it in a Supreme Court opinion.

10:57

And as a reaction, talk of regret

10:59

around abortion became taboo in

11:02

the pro-choice movement. Even

11:04

though studies show that the vast majority

11:06

of people who've had abortions, more

11:09

than 95 percent do not

11:11

regret it,

11:12

even if they felt grief.

11:14

I get there are women that have had abortions that

11:17

don't regret it.

11:19

I've just said that's not me.

11:22

The personhood movement gave

11:24

Mary kind of an answer to

11:26

her grief and her regret.

11:29

My child, my baby, was 16 weeks

11:31

old when he was aborted.

11:34

It wasn't like he was a clump of

11:36

cells, and it didn't matter what happened

11:38

to him.

11:45

It struck me how Mary

11:47

found community in the anti-abortion movement

11:50

because she didn't think anyone in the pro-abortion

11:53

movement could understand her experience.

11:56

But as I was doing my reporting,

11:58

I found someone in the abortion

12:00

rights movement, who provided care

12:03

for people in Mary's situation, and

12:06

said some things that actually reminded

12:09

me of her.

12:11

In the recovery rooms,

12:13

we have notebooks for people

12:15

to write their thoughts and feelings. Dr.

12:18

Shelly Selah is an OBGYN.

12:21

I had somewhere, actually,

12:23

a list of... I had some

12:25

quotes. She's retired now, but she's

12:28

kept copies of what some of her patients wrote

12:30

in those notebooks. Okay, here we go. Dear

12:34

God, please forgive me. I'm not

12:36

in a good position to have a baby. I

12:38

know I made the right choice. No

12:40

regrets. Someone

12:43

else wrote, May God forgive us all, for

12:45

we are humans. We fall short

12:47

sometimes.

12:50

I'm a Catholic, and I'm not

12:52

happy about the situation, but God

12:54

gave us the ability to think, for

12:56

us to use our judgment, and especially

12:58

to be our own person. It's

13:02

easy to just think of it in black

13:04

and white terms, but it doesn't

13:07

work. Dr.

13:09

Selah is not just any abortion provider.

13:12

For almost a decade, she was only one

13:14

of four people in the country to

13:17

openly provide abortions at any point

13:19

in a pregnancy, even in the

13:21

third trimester.

13:23

When her patients would arrive, she'd ask

13:25

them a question. I ask

13:27

patients, how would you like me to

13:29

describe this being inside you, and

13:32

invariably they say, baby? Do

13:35

you then see the fetus as how they

13:38

see it? Do

13:42

I personify it? Based

13:45

on how your patient sees it? Yeah,

13:47

and that's an interesting question.

13:50

If someone says, this is

13:52

my baby, Tom, yeah,

13:56

I guess I think of

13:58

it as baby Tom. How

14:01

she sees it is how I see

14:04

it. This surprised

14:06

me.

14:07

I hadn't heard an abortion provider say

14:10

something like this before. And abortion

14:12

rights scholars I talked to often insisted

14:15

on using the word fetus. But

14:18

here was Dr. Selah,

14:20

an all-trimester abortion provider, one

14:23

of the most pro-abortion people I'd ever spoken

14:26

to,

14:26

saying baby in the

14:28

context of abortion. You

14:31

can have feelings, you can have feelings toward

14:34

the fetus or baby, whatever you're

14:36

calling it, and still know

14:38

that

14:39

it's the absolute right decision for

14:41

you to have the abortion. Not

14:43

does it look like a baby or does

14:45

it look like a cotton ball. Or

14:49

clump of tissue. To

14:51

me that's kind of denying the reality of

14:54

our work. I mean I think we have to acknowledge what we

14:56

do.

15:00

Dr. Selah says

15:03

that when she was just starting out, the

15:05

clinic she worked at looked like a bunker

15:07

with high fences, guards, and metal detectors. She

15:12

and her staff received countless death threats

15:15

and her mentor, Dr. George Tiller,

15:18

was murdered while he was at church.

15:21

Dr. Tiller was religious

15:23

and saw this work as God's

15:26

work and as a moral imperative.

15:29

And he was determined to provide

15:32

that to women

15:33

who needed care.

15:36

But I think it was hard.

15:41

How did you feel?

15:45

I was very committed to the work. You

15:48

can have feelings as the provider and

15:51

still know this is the absolute right

15:53

thing for this person who has come to me.

15:56

And it's okay to acknowledge that sometimes

15:59

it's... and sometimes it's not

16:02

and that's okay. It doesn't take

16:04

away from the work or from

16:07

the woman's right to have the abortion.

16:10

Like

16:13

Mary, Dr. Selah has also

16:15

been frustrated by the way the pro-choice movement

16:18

has talked about abortion. It hasn't

16:20

always aligned with her experience as a

16:23

provider.

16:24

It's like if you're pro-abortion,

16:27

then it's 100% and you attach no emotion to it.

16:34

Like let's make it this nothing,

16:37

this lifeless cardboard.

16:40

But it's not. Talking

16:44

to these two people with opposite

16:46

beliefs, I was surprised

16:48

by how much they kept coming back to the

16:51

same place.

16:52

Can we just agree on certain

16:55

facts, even though we may apply

16:57

them differently or we may see the outcome differently,

16:59

can we just say this is a baby? Many

17:02

people who have abortions don't think

17:04

of it as a fetus.

17:06

It's their baby. Let's at least

17:09

have language that we

17:11

agree on.

17:13

Mary and Dr. Selah also agreed that

17:15

the way Roe v. Wade tried to draw

17:17

lines in a pregnancy was deeply

17:20

misguided.

17:21

I never thought it was a good decision to begin with,

17:24

actually. When

17:25

you look at viability and say that

17:27

that is a compromise, it's

17:29

not so much when does life

17:31

begin, but when are we as a society

17:33

going to value the life?

17:36

Where do you think that Justice

17:38

Blackmun should have drawn that line instead?

17:42

Well, that's a great question.

17:45

At the time, Justice Blackmun

17:47

was saying, well, we don't really know when life begins.

17:51

There's no need to make something so

17:53

simple complicated.

17:55

The whole structure they came up with is just too

17:57

complicated. Here,

18:00

the two women diverge, for

18:02

Dr. Stella. A pregnancy

18:04

is viable if it's wanted

18:07

and accepted and embraced,

18:10

and it's non-viable if it's rejected

18:13

by the mother. Why

18:16

did they do this? They screwed us

18:18

all over.

18:26

So if not Roe and

18:28

not viability, then

18:30

what? Mary

18:33

found her answer in the personhood movement,

18:35

and the Supreme Court

18:38

is probably more

18:39

open now to ideas of personhood than

18:41

perhaps any other time in US

18:43

history.

18:45

But

18:46

for Dr. Stella, the answer

18:48

is less clear. She isn't

18:50

a lawyer.

18:52

And it made me wonder, who

18:54

in the abortion rights movement is looking

18:56

for a legal answer that could

18:58

reflect her experience?

19:02

We talked to someone working on an answer.

19:05

For a very, very, very long time, the

19:07

abortion rights movement has truly wanted

19:09

to ignore the fetus in any way it can.

19:12

Two people, actually. What we're envisioning

19:14

is a future that abortion

19:16

rights still acknowledge the fetus, and

19:19

that's OK.

19:22

That's after the break.

19:46

From WNYC Studios, this

19:48

is More Perfect. I'm Julia Longoria.

19:52

The second half of this episode requires

19:54

a different kind of warning.

19:55

We're going to get wonky.

19:58

We'll make it worth your while.

20:01

Here's reporter Gabrielle Burpay.

20:05

OK, so let's review for a moment.

20:08

Last year, the Supreme Court threw

20:10

out the viability line.

20:12

And putting aside the chaos we're living in because

20:14

of that, which is hard

20:16

to do, some legal scholars who we

20:18

talked to are weirdly sort of relieved.

20:22

Because viability made no sense. They

20:25

say now the creative solutions

20:28

are endless. For people

20:30

who believe in the right to an abortion,

20:32

there's a pair of lawyers I talked to who've been thinking

20:34

about this a lot.

20:37

So we'll start with a tale

20:39

of two pregnancies from these two legal

20:41

scholars. Jill Lenz.

20:44

I am a professor of law at the University

20:46

of Arkansas School of Law. And Greer

20:48

Donnelly. I'm a reproductive justice

20:50

scholar. At the University of Pittsburgh.

20:55

When Jill and Greer each got pregnant, they were

20:57

in separate parts of the country. They

20:59

did not know each other. Both

21:01

were lawyers and both in their 30s. We

21:05

found out it was a boy, which was just

21:08

fantastic. What color

21:10

did you paint the nursery room? It

21:13

was like a seafoam green. Actually,

21:15

it happened to be Father's Day. And

21:18

I put the car seat in the very day. And

21:20

that all happened probably two weeks before,

21:22

a week before the scan, that we found

21:24

out that things

21:25

were going so wrong. After

21:29

both of them had prepared for their babies

21:31

to arrive, both Jill

21:33

and Greer's pregnancies went

21:35

horribly wrong.

21:38

For Jill, who lived in Texas at the time,

21:40

a thing that so many

21:42

pregnant people fear happened

21:45

at almost nine months. They couldn't

21:47

find a heartbeat.

21:49

The nurses all left the room and I just let out this

21:52

scream.

21:55

Your son was stillborn.

21:59

For Greer and Pittsburgh. The trouble

22:01

came earlier in the pregnancy at the 20-week

22:03

scan. The doctor basically

22:06

told us that our

22:08

son had a pretty profound brain anomaly

22:11

that was preventing brain tissue from forming. Greer

22:13

is a cancer survivor, so

22:16

her pregnancy was already considered high risk. The

22:19

first thing the doctor said was that some people in

22:21

this situation choose to have an abortion.

22:24

Someone once

22:26

told me that people faced

22:28

with this decision can choose

22:31

life for their child, or they can

22:33

choose peace, but they can't choose both.

22:36

What does it mean as a mother when you have to make that

22:38

choice between those two things? When

22:40

you want desperately to give your kid both of them.

22:44

But for me and for

22:46

many women who came before me, I chose

22:48

peace. And,

22:52

you know, in some sense felt like it

22:55

was the only gift I could give him to not

22:57

suffer in this world. But

23:01

it was also a gift that came with

23:03

profound pain for me. She

23:06

had an abortion at 22 weeks. If

23:08

you're comfortable with sharing, like, what did

23:11

you do after? I

23:13

came home, and, you

23:17

know, I was in a

23:19

really dark place for a while. The

23:22

loss part of my abortion

23:25

felt like I didn't know

23:27

where to go. And

23:30

the thing that was so strange about it was that I've

23:32

been pro-choice my whole life, and not just

23:35

vaguely, right? I was actively

23:37

involved in causes

23:39

related to this issue when I was in law school. So

23:42

I was not expecting to feel

23:45

the kind of things I felt. Like

23:47

I was losing, you know, a potential child.

23:51

Like I felt like I was losing a son, right?

23:55

Like

24:00

so many people who've lost a pregnancy,

24:03

she did not feel this was a clump of cells.

24:06

She was mourning her baby. I

24:09

remember someone sent me a book, and

24:11

I know this person, right? This person

24:14

is someone who supports abortion rights. And

24:17

the book was, like,

24:20

was clearly an anti-abortion book. Like,

24:23

this is your baby. It's been your baby from the

24:25

moment you've carried this baby your whole,

24:28

its whole life. There was a part

24:30

of me that was reading this with the emotional experience I had just

24:32

been through, thinking, oh, yeah,

24:35

like, this resonates. She

24:38

couldn't find this kind of comfort in the pro-choice

24:40

literature she came across. I

24:43

was feeling this conflict within me. On

24:45

the one hand, I was someone who

24:49

had had an abortion

24:51

of 22 weeks, right? So you can't go through

24:53

that experience and not, or

24:55

at least I didn't go through that experience and

24:58

feel like people shouldn't have access to abortion. On

25:01

the other hand, I also had

25:04

never valued fetal life so much. And

25:07

that was the part where

25:09

I felt very confused.

25:14

Over 1,000 miles away,

25:16

Jill, after her stillbirth

25:18

experience, she was also

25:21

conflicted.

25:23

When I walked out of the hospital, someone

25:25

said to me we would get Caleb's death certificate

25:27

in the mail. And in my head, I specifically

25:30

thought, what about his birth certificate?

25:32

Because I gave, I literally just gave birth.

25:35

After Caleb was stillborn, Jill

25:38

wanted a memorial birth certificate, which

25:40

is something abortion rights groups have resisted.

25:43

And when she wrote about the legal recognition of

25:46

stillborns, her work got

25:48

a reaction. So something

25:50

as simple as the language that I would use

25:53

when writing about stillbirth especially that

25:56

could be threatening to abortion rights.

26:00

Greer in Pittsburgh, her

26:02

experience led her to write a paper which

26:04

made the case that abortion should be a parental

26:07

right.

26:08

But that necessitates, right, that there is

26:10

a child for whom the parents can make decisions

26:12

about. And she got a similar

26:14

reaction. I got a lot of pushback

26:16

from abortion rights people because they did not like

26:19

that I was using parental frames

26:22

to talk about abortion. What did that pushback

26:24

look like? It was basically, this

26:26

really scares me because

26:27

it's going to create a slippery slope to personhood. You

26:32

know, I think there is every reason to be

26:34

terrified of personhood. Because

26:37

once a fetus is a person under the law at any

26:39

point in pregnancy, it will trump

26:42

the woman's rights over and over

26:44

again. So it's not at all that

26:46

the fears around this are

26:48

unfounded. It's that what

26:52

do we lose by not recognizing

26:54

something that is very intuitive

26:57

to so many people who've been pregnant before?

27:04

Jill and Greer were both mourning and

27:06

feeling alone. They'd heard

27:09

about each other in the world of legal scholars,

27:11

but Greer was afraid to reach out. I

27:14

see so many pro-life narratives within

27:17

this stillbirth community and the pregnancy loss community

27:19

like I'm

27:21

not comfortable reaching out to Jill because what

27:24

if she actually thought, you

27:26

know, I lost my kid, you didn't,

27:28

you, you know, whatever,

27:31

killed your child.

27:32

Like I judge you. I'm not going to, I

27:34

don't want to, you know, I was afraid of being judged.

27:40

Jill, I'm going to read this. This is a very

27:43

interesting paragraph in an early email

27:45

you sent me. Oh

27:48

no. Jill was the first one to finally

27:50

reach out.

27:51

The personhood argument is always difficult, but

27:53

I really do think the pro-choice side is overreacting.

27:56

It's just reality that

27:59

women see their unborn.

27:59

children as children. When the woman

28:02

wants the baby, she calls it a baby. When she

28:04

goes in for the ultrasound, the doctor points out

28:06

the baby's foot, not the fetus's foot. It

28:08

is a baby to the woman even though the baby is

28:10

still unborn. Denying this doesn't preserve

28:13

abortion rights, it just denies reality.

28:16

So. Yeah,

28:18

it's a little strong, but I don't think it's wrong. A

28:21

friendship was born almost immediately.

28:24

And I had always thought

28:26

about it, but I don't know that I've ever necessarily really

28:28

told you this, Greer, but it's just, it's amazing

28:31

to me how

28:32

similar

28:34

our situations are. Greer

28:37

gets it. Greer gets it. Jill

28:41

and Greer get in touch with each other on the anniversaries

28:43

of their son's deaths.

28:45

To them, it's important to honor the babies

28:48

that they lost.

28:49

For a lot of people who are not, you

28:52

know, seeped in one

28:54

side or the other, you know, the

28:56

fact that the abortion rights movement doesn't

28:59

really have a way of thinking about fetal

29:01

value is alienating because,

29:04

you know, these are the average people

29:06

who, you know, feel,

29:08

you know, feelings of love for their children

29:10

before they're born and experience

29:13

loss that leads to profound grief,

29:15

questioning what that grief is about.

29:18

You know, she and I really wanted to

29:20

write a paper that dove into that exact tension

29:23

and we hadn't felt like we had seen that

29:25

anywhere. Because we hadn't seen it anywhere.

29:29

Jill and Greer wanted to find a more nuanced

29:32

way of thinking about abortion and

29:35

the law. What do you do when

29:37

you completely support the bodily

29:40

autonomy of people, but you also really value

29:42

fetal life? How do you make sense of that?

29:45

The

29:45

viability line in Roe v. Wade

29:48

was supposed to be an answer to that balancing

29:50

act,

29:51

but Greer says that the

29:53

justices fundamentally misunderstood

29:56

something about pregnancy when they invented

29:58

that line.

29:59

The ability essentially functions as this on-off

30:02

switch, where

30:04

the fetus or the baby is one

30:06

thing one day and then a whole other thing

30:09

the next. And that's just not at

30:11

all how people experience pregnancy. Some

30:14

people do have a moment where they

30:17

feel like it's their baby. And for

30:19

some people it's a pregnancy test. For some people it's

30:21

the first time they feel a baby move. For

30:23

some people it's birth. It's

30:25

gonna be different for every person.

30:29

The way Jill and Greer

30:31

experienced pregnancy and loss

30:34

was as parents.

30:35

My abortion was kind of like the

30:38

first major parenting decision I made in my whole life.

30:41

They wanted to start there.

30:44

So they turned to Greer's argument about abortion

30:46

being a parental right.

30:48

If parents get to make these decisions after

30:50

birth, they should be able to make it before birth. That

30:53

became the first building block for Jill and Greer's

30:56

argument. We're only talking about a parent's

30:58

claim. We're not talking about a fetus having

31:00

rights. They believe a person is a

31:02

person under the Constitution beginning

31:05

at birth.

31:07

But that doesn't mean that a fetus can't

31:09

have value. They dove

31:11

into the research around pregnancy loss to find

31:14

out how people valued the pregnancies

31:16

they lost. And some of the answers

31:18

were, I lost a pregnancy, I lost

31:20

a baby, I lost

31:23

my child who had this name, I

31:25

even had a funeral, so there was like a range

31:29

of valuations. It

31:31

varies, it changes.

31:35

Other legal theories had tried to move

31:37

the viability line across the timeline

31:39

of a pregnancy to a fixed point. I

31:42

mean, I think it's very natural to think,

31:45

as many people do, that pregnancy progresses

31:47

over time on

31:48

some sort of scale, and at some point you have to

31:50

draw a line. But, you know,

31:52

our way of thinking is, well,

31:55

what if we don't? What if we just

31:57

allow people to decide what it means to them? So,

32:02

how do you do that in the law? It

32:04

turns out, there is already

32:06

somewhere in the law where people

32:09

can tell the court how much a loss

32:11

means to them.

32:13

It's this thing called tort law. I

32:15

always think of a pastry. I don't know. Oh,

32:18

that is funny. I think of tarts. Yeah, that's

32:20

why all my students are like, wait, why aren't we talking about desserts?

32:23

Um, okay. So, tort law,

32:25

it's just personal injury law. Like the

32:27

signs you see on buses and benches saying

32:30

things like, have you been in a car accident?

32:33

Pregnancy loss actually turns up

32:35

in tort law all the time. When

32:38

it does, fetal value isn't tied

32:40

to how far along in a pregnancy you

32:42

are. It's about proving

32:45

how much the pregnancy meant to the person

32:47

who lost it.

32:48

Take for instance, if Jill had

32:50

a miscarriage because someone hit her with their car.

32:53

I would be at trial trying to prove

32:55

to the jury that, you know,

32:58

I loved my son and I have

33:01

to try to prove to the jury that I've suffered a lot of damages.

33:04

And then the jury awards an amount of damages

33:07

that's specific to my loss. The

33:09

pregnant person defines their own

33:11

loss to a court rather than the

33:13

government defining it for them.

33:16

The state cannot come in and say, we lost

33:18

something. Why? Because it's the parents' loss that

33:20

matters.

33:22

It's an idea presenting fetal value

33:24

that doesn't threaten abortion rights.

33:29

The judge and the clerk who introduced

33:31

the viability line told me

33:33

in last week's episode that the

33:36

law is all about drawing hard

33:38

lines.

33:39

Of course, they said, those lines

33:42

are not always going to get it right for every

33:44

single person's experience.

33:47

That's just an unavoidable consequence

33:49

of having a lawful society.

33:52

But part of the reason they drew it that way

33:54

was

33:55

because they couldn't wrap their heads

33:57

around why someone would need to have an abortion.

34:00

late in pregnancy. Look,

34:02

I too am very uncomfortable

34:05

with people getting abortions for absolutely

34:08

no reason in the third trimester,

34:10

right? But also it's like because

34:13

I had an abortion the second trimester, I literally

34:15

know that like no one would choose

34:17

to do that. If you actually look

34:19

at the people who are willing to do that, almost always

34:22

we're talking about people who have, you know, experienced

34:25

dramatic changes in their life, learned

34:27

a horrible fetal anomaly, endured

34:30

serious domestic violence, you know, really

34:33

traumatic situations in which I think a lot of people actually

34:36

would have a

34:36

lot of sympathy for.

34:39

Jail and Greer don't claim to have the answer

34:42

to abortion in America. But

34:44

what

34:44

they propose is maybe the law doesn't

34:47

have to create one general rule

34:50

for the infinitely complicated experience

34:52

of pregnancy and abortion.

34:58

If you don't mind me asking, how far along are you? When

35:01

I talked to Greer for this story, she was pregnant.

35:03

Actually very pregnant. I'm

35:08

gosh, it's always so weird because it's like I'm eight months pregnant, I

35:11

think, but I'm 35 weeks.

35:13

A

35:16

few weeks later, I heard the news.

35:19

She had a healthy baby girl. She

35:22

had a baby girl. A few weeks later, I heard

35:24

the news. She had a healthy

35:26

baby girl. Pregnancy's

35:29

really hard. It's really hard.

35:33

It requires enormous sacrifice of your body,

35:35

of your emotions. So why do

35:37

we not trust women, right? What are we

35:39

worried about? And what if we just

35:41

trust them? And we

35:44

trust them to feel grief. We

35:46

trust them to make the

35:48

decisions for birth. We trust them to make decisions

35:51

for abortion. We trust them to just... We

35:54

just trust them.

36:13

More Perfect is a production of WNYC

36:15

Studios. This episode was produced

36:18

by Gabrielle Burbé and me, Alyssa

36:20

Eads. It was edited by Jenny

36:22

Lawton and Emily Seiner with help from Julia

36:24

Longoria. Fact Check by Naomi

36:27

Sharp. All thanks this week to

36:29

Jeannie Suk-Gerson, Sam Moyn, Anna

36:31

Sale, Liliana Maria-Percy Ruiz,

36:34

Dana Sussman, Joanna Schune, Erika

36:36

Christensen, and Garen Marshall. The

36:39

More Perfect team also includes Emily

36:41

Botin, Whitney Jones, Samana

36:43

Hutt-Khan, and Emily Madre. The

36:45

show is sound-designed by David Herman and

36:47

mixed by Joe Plourde. Theme

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by Alex Overington and episode art by

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