Interview with an Abortion Lawyer
My randomly assigned roommate freshman year of college was a lesbian New Mexican with an interminable collection of tchotchkes and lifelong passion for abortion rights. Bella was raised by a midwife and has been attending abortion marches since she was eleven, so it surprised no one when she left her job in politics to become an abortion lawyer. She is currently a state legislative fellow at the Center for Reproductive Rights, and tracks legislation related to assisted reproduction. We spoke about embryonic personhood, Dobbs, and Supreme Court Justice Frank Murphy. These views are Bella’s own and do not reflect her employer.
This interview has been edited for length and clarity.
E: Can you speak about your work in Assisted Reproduction [AR] and what that means?
B: The work we do in AR is in supporting people who do want children and need a safe and accessible way to do that. It’s supporting policies that make it easier to become a parent. It’s very expensive to access IVF care and so the bulk of what I do is track and analyze insurance mandates that require insurance plans to cover IVF and other fertility care, as well as fertility preservation.
E: Why does this have to do with abortion?
B: We’re not advocating for abortion because we want everyone to have an abortion. We’re fighting for abortion because we want everybody to have the power and agency to build the families they want, and part of that includes AR so that people who are unable to have children in the standard ways have that ability. If the government can prevent you from having an abortion, they can prevent you from having a child eventually.
E: What are the effects of Dobbs on the types of bills you’re tracking?
B: Because Dobbs gave states the power to ban abortion outright, it also allows states to pass laws that give personhood rights to fetuses and embryos. What that means for IVF is that those embryos cannot be disposed of. If they have personhood rights they have a right to life. In Louisiana currently, and this predates Dobbs, embryos have personhood rights and have the ability to sue and be sued.
E: So in Louisiana, I could sue my embryo.
B: Yes.
E: Who would defend my embryo?
B: Your ex-spouse would sue you on behalf of your embryo. If you created embryos together, and you were like, I don’t want to use these, and your spouse was like, I do want to use these, instead of just going to court like regular people and arguing over the marital property that is your embryo, your spouse could sue as the embryos to be like I, the embryo, have the right to be alive in this world. And that’s what happened to Sofia Vergara.
E: Did Dobbs specify that fetuses are people?
B: No. It also didn’t specify that abortion is illegal. What Dobbs did was say, we the federal courts have no business in this and this is not a right that is protected in the Constitution. If a state, just to pick one off the top of my head, if Arkansas decides that fetuses are people, go with god. That’s on them.
Part of this is a difference in how we view fetuses now. Fetal personhood was not an argument in the 70s when Roe was decided. Roe was grounded in the right to privacy, but it was also grounded in the idea that the doctor knew best for their patients. Roe was saying the state doesn’t have the ability to prevent people from making a decision with their doctor. The fetal personhood thing came up later. Roe did prevent fetal personhood because you can’t say a fetus is a person and still allow abortion. Does that make sense?
E: It does make sense but it does seem like all of these arguments are legal gymnastics, none of which are speaking on either side to the actual point.
B: Yes. That’s very true. That’s the law. Lawyers don’t actually know the reality for people on the ground.
E: Would you like a Sumo orange?
B: Um, no, that’s okay. Looks like a lot of work to peel it.
E: No, it’s really easy. That’s what’s so nice about them.
B: Then I do want one. I will also say, no state has currently passed a fetal personhood law. Most states are actively not doing fetal personhood laws, because that leads to so many issues. If you’re eight weeks pregnant and you get in a car crash and you live and your fetus dies, in many states you cannot sue the other driver in a wrongful death case. It does not make sense for states to have fetal personhood laws because it opens up such a can of worms if you count a fetus as a person. Most states have feticide laws where you’re punished for killing a fetus, but that’s usually after the viability mark. When a fetus would live outside the womb on its own.
E: So if you shot a pregnant person and you killed their fetus, the judgment would be different depending on if the fetus was 10 weeks or if it was 29 weeks.
B: Exactly.
E: That’s sticky.
B: It’s very sticky. Another thing: wills. If you’re pregnant, is that kid gonna inherit immediately as soon as they’re a fetus? If a grandfather leaves it to all his grandchildren, does the fetus get some even if they’re not alive? And then one case I saw, someone was being prosecuted for child sexual abuse. I don’t remember what state it was, but whatever state it was had more severe penalties if the victim was under 14. And because the state had something in the constitution that said life begins at conception, he said she’s not actually 13, she’s 14 and 2 months. Because I’m adding 9 months from when she was a fetus.
E: What could be some possible worst case outcomes of fetal personhood laws in states that are limiting reproductive rights?
B: Not only are we seeing fetal personhood laws, but we’re seeing embryo personhood laws, so this returns us to IVF. In Louisiana currently, you can’t dispose of your embryos in Louisiana. But you can mail them to California and California will dispose of them. So we could see laws that prevent people from doing that. And then people would have to pay for storage indefinitely. That’s one thing that makes IVF difficult to access with personhood laws, that you have to pay for storage indefinitely.
E: What happens if you don’t pay for it anymore?
B: We actually don’t have an answer on that because no one’s ever had to pay for cryo storage indefinitely. They can just send it to California. But that is a very good question. If you file for bankruptcy, is the state now paying for your embryos?
E: What if you die?
B: Great question. If you die, does the embryo live forever? How does that work? So that’s one issue. The other issue is, anyone who is reading this who has done IVF, knows that you don’t get every embryo you create. You create some, they unthaw them, some become nonviable. That could be treated as homicide. There’s a bill in Arkansas right now that does exactly that. If you create an embryo for IVF, that is a life and you cannot - most of them say “willfully” destroy it. But it is possible that they could say it doesn’t matter if you willfully destroy it or not. So say you do PGD on an embryo and something happens to the embryo, that’s willful. You took an act, the embryo died, it doesn’t matter if you intended to or not - that’s how we look at a lot of murder. You shoot, you hit someone, you didn’t intend to hit them, you still killed them, you still have to go to prison. That’s the worst case scenario because then, if you’re a doctor in Arkansas, why would you do IVF? Why would you open yourself up to murder prosecution because you’re testing an embryo to make sure it doesn’t have Tay-Sachs?
E: I’m not operating under the premise that the people who are making these laws are compassionate people, so I’m not asking “how could they”, but I’m asking why they would want to restrict something that members of their own constituency and voter base probably want to access [IVF]?
B: I don’t think they’re thinking about who it affects. They know that personhood laws score very good political points. And so I think it’s more that they really want to get votes, because the most rabid base that helped them get elected, that probably donate the most money, are out for blood. And for a very long time they had a really easy thing to do to rile up the base, which was introduce abortion bans. And now they’ve won. But they still need to get elected and they still need the money and so personhood laws are a good next step. So I don't think they’re thinking about who it will affect. And actually a lot of these bills say it doesn’t apply to IVF. But they’re written in such a way that it would chill the practice of IVF. It’s a combination of them not thinking and wanting an easy win, and thinking that they did a really good job drafting it and it won’t affect IVF when it absolutely will.
E: When did fetal personhood become a thing?
B: You know, I don’t actually know. I can look it up. I think it probably started with the fetal pain discussions, and I think those began in the 2000s. And actually, even in the 70s, most Catholics were pro-choice. Most people were pro-choice in the 70s. It was only in the 80s that the religious right realized this could be really good for us politically. Even they, I don’t think, were into fetal personhood. Or at least they might have thought that every fetus was a life but that wasn’t what they were introducing into law. It was a non-issue when Roe was passed. My favorite fact about this is when John Paul Stevens got confirmed to the Supreme Court, two years after Roe, no one asked him a single question about abortion.
E: Is there a Gandhi equivalent of the anti abortion right?
B: That’s so not where I thought that question was going.
E: Yeah, it wasn’t phrased well. I just want to know if there’s any people we can point to and say, of course things happen the way they happen, there’s populist movements, blah blah, but are there any people who, without them, we would not be here.
B: I would blame Jerry Falwell and Paul Weyrich specifically.
E: Who’s Paul Weyrich?
B: He co-founded the moral majority with Jerry Falwell. And I think he was the first person who recognized the potential for abortion as an issue hand-in-hand with gay rights. Originally Jerry Falwell got involved in politics because he was a huge racist and the Supreme Court was like your whites-only schools can’t get tax credits anymore. And he was like oh…this is not gonna play politically. And him and Paul Wyrick realized, you know what we can fundraise on? Feminism and abortion, gay rights, and something called secular humanism which you never hear about anymore. I don’t know what secular humanism is but they were very opposed to it.
E: What did they want? They wanted their whites-only schools to not pay taxes?
B: They wanted political power. They hated Brown v Board so they started whites-only schools that got tax breaks. SCOTUS said they couldn’t do that. I think those two decisions showed them how little power American Evangelicals had. They created political rallying cries for evangelicals so they could get people who would put friendly judges on the court.
E: What did the anti-abortion movement look like before this?
B: There were states that banned abortion. Roe only exists because Texas made abortion illegal. It’s not that there was no anti-abortion movement, it’s that it became a very convenient political rallying cry that developed post-Roe. I want to be very clear though: not because of Roe. But post-Roe. One thing about Roe that always surprises people is that it was a 7-2 decision.
E: Are there ever 7-2 decisions now?
B: There are a surprising amount of unanimous decisions. It’s just not things that - I don’t know the last unanimous decision because it was probably something like, actually, when we say the end of the year, that’s through December 31. Those sorts of very small decisions.
E: I wonder how a daylight savings decision would go. You know who I bet would be against daylight savings? Neil Gorsuch.
B: Would he?
E: He has a libertarian streak.
B: I don’t think Neil Gorsuch would be opposed to ending daylight savings times but I think, like abortion, he’d return the issue to the states, which is the stupidest possible solution to the problem.
E: In Arizona they don’t have daylight savings.
B: I know and I get it for them. But that’s an insane way to live. That’s crazy. You can’t drive from New Mexico to Arizona and it’s a different - That’s disgusting. We can’t live like this.
E: What are the types of legal things we’re looking at in the medium term? Say over the next five years.
B: There’s two big things. One of the things is removing restrictions that still exist in states like New York, and California, and Massachusetts. Let’s take Kansas for example. Kansas has the right to abortion enshrined in its Constitution, but there’s a ton of restrictions that make it very hard to access an abortion. What work can we do to remove those restrictions? And that looks like removing waiting periods, allowing people to do medication abortion via telemedicine, removing medically inaccurate informed consent laws. Oh, and removing parental consent laws. There’s a lot of states that people think are progressive and have very good abortion laws and still require minors to get consent from a parent or guardian for an abortion, and you might as well just not have legal abortion for minors then.
The other thing that’s very exciting is interstate shield laws. Essentially, if you’re a doctor in Massachusetts, and you want to do telemedicine abortion for someone in Texas, and someone in Texas reports you to the Massachusetts licensing board and says this doctor is doing illegal abortions, Massachusetts is not gonna automatically pull your license as a provider.
E: I’m imagining that cases about that would end up coming down to random commerce precedent.
B: There are commerce clause questions about it. I do not remember anything about the commerce clause so I can’t talk about it, but it is an interesting question.
If I was advising Joe Biden, I would say you need to put your attention toward passing a law in congress that establishes a right to abortion. Because the Dobbs said there’s no right to abortion in the Constitution. I disagree with that, but if you pass a law through congress, the Supreme Court isn’t allowed to say “and you can never create one.” They can strike down laws congress passes, they do it all the time, they can say a law congress passes is unconstitutional, but Dobbs did not say the constitution forecloses the right to abortion.
E: Isn’t this all a good faith reading of the Supreme Court taking their responsibilities seriously when they’ve already proven that they’re -
B: Craven and immoral?
E: and intellectually inconsistent.
B: It is, and, I think it is also something that has to be done, because the alternative to not doing it is to accept that some people just live in a state without abortion. And because I believe there is not just a constitutional right but also a human right to abortion, the idea that we can make abortion okay in some states while it’s illegal in others is not good enough. I think that the only thing to do to ensure a federal right to abortion is to pass a law through congress codifying the right to abortion into federal law. And I think that’s going to take so long that my hope is SCOTUSwill have changed by then. Unfortunately I think that will take all of our lifetimes and into the lifetimes of our children. I hope I live to see abortion legal across the country again. I’m not confident I will. And that sucks. That’s the biggest bummer of this work.
E: What’s that quote that you like?
B: The arc of the moral universe is long, but it bends toward justice?
E: No no. not that one.
B: Oh. Hold on. I have these written down. I have a whole list. There’s this one from the Talmud: "Do not be daunted by the enormity of the world's grief. Do justly now, love mercy now, walk humbly now. You are not obligated to complete the work, but neither are you free to abandon it.” The others on my list are from RRR, from a museum in Scotland, that one’s from Invictus, which I felt a little stupid writing down, because I was like Nelson Mandela was in prison, you’re mad at the Supreme Court, you are not the same. I don’t remember what that one’s from, but I liked it.
E: Maybe the Simpsons.
B: Maybe. Or a tiktok.
E: My last question is do you have any SCOTUS fun facts that you would like to share? It’s your last thing so make it a good one.
B: The right to privacy that gave us Roe was first announced in a case called Griswold vs Connecticut, which was the case that was like if you’re married you can use contraception, that’s not our business as the government. So the guy who wrote that case, William Douglas, wrote something about why marriage is important, and included that marriage is a sacred unit, “hopefully enduring.” And he added that part because throughout his life, Justice Douglas was married four different times, and he kept leaving his wife for someone younger until he was like, I wanna say in his late sixties, early seventies, and married, I want to say, a twenty nine year old. Justice Douglas is great. He truly wrote opinions, he was like “what are the vibes? What do I want to happen here?”
E: Isn’t that all SCOTUS Justices?
B: Yeah but a lot of them pretend that they’re doing the law and at least people like Justice Douglas - his thing for Griswold was, there’s no right to privacy in the constitution but if you look at the Fourth Amendment and definitely the Ninth, maybe the Sixth, all of them taken together create an umbrella of privacy. And it’s like, no, that’s not a thing. You can’t just do that. I love him for that.
E: Wasn’t there a Justice that you told me about who wrote a decision that wasn’t considered good precedent, because he just wrote, “this is just what’s right”?
B: Frank Murphy, who also wrote based on vibes. He was one of the dissenters in Korematsu. One judge wrote a dissent that said, “Legally this is wrong.” And Murphy wrote a dissent that said, “I don’t know why legally this is wrong, but this is racist.” No one respected Frank Murphy as a Justice because all of his decisions were like, “This is what I think should happen.” But, what do we remember from Korematsu? We remember that it was a horrible case, Frank Murphy was right, it was legalized racism and should never have made it through the Supreme Court. So sometimes going off what is morally correct is better than following the law.
E: Was Frank Murphy a homo?
B: He was, and that’s part of why I love him. ♦