Woman in Labor Spent 3 Hours Fighting a Judge on Zoom to Avoid a Forced C-Section

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: Many gynecologists practicing today were taught the cervix has no nerve endings.

0:00:08 Lydia: Wrong!

0:00:17 Jenessa: It is not wrong for a black woman to feel like a bunch of white doctors and white nurses and a white judge telling me what to do is how I end up dead. It's statistically correct.

0:00:33 Thomas: Hello and welcome to Opening Arguments. This is episode 1264. I'm Thomas. That over there is real life attorney Jenessa. How you doing?

0:00:41 Jenessa: I'm doing pretty good. Tonight I have my last monitoring of woodcocks in the local park, so that's fun.

0:00:50 Lydia: Come again?

0:00:51 Thomas: Am I supposed to have understood any of that? Hold on. It's also real life.

0:00:56 Lydia: Birther.

0:00:57 Thomas: My wife, birther, birthing mother, birting person, Lydia Smith. How are you doing. I was going to throw to you and figure out why we were throwing to you, except now we have to hear whatever whatever Jenessa just said sounded something bird related.

0:01:03 Lydia: Hello. Good. I'm excited to be here. A Monday?

0:01:14 Lydia: Yes, please expand on your woodcock. Did it. Was it bird -related, Thomas?

0:01:20 Jenessa: Yeah

0:01:20 Thomas: I mean, I hope not, but it did sound like that.

0:01:22 Lydia: We're going to find out. Jenessa, tell us everything. Everything.

0:01:25 Jenessa: The pine bush preserve they do all kinds of like citizen science like come do frog watch like monitor the frogs my partner's favorite is the woodcocks they're this like extremely derpy little bird that just goes like meep and walks around in the woods and is like like not endangered but like not not endangered yeah kind of but like really slow and not running at all

0:01:45 Thomas: The Roadrunner. Oh,

0:01:51 Lydia: Oh, I'm looking them up. They're funny looking. Oh man.

0:01:54 Jenessa: They're very funny looking aren't they I always said they say like a meep noise but on the sheet it says you have to count how many you heard saying peent like p -e -e n -t which is the

0:02:06 Thomas: That's that's what Phoebe used to say for pink.

0:02:08 Lydia: Yeah. Pint.

0:02:09 Thomas: So it's how many of them are saying pink, pink. That's so funny. Well, that is. That's that is delightful. And, you know, we probably need a delightful start to this one, because why is Lydia here and what are we talking about? Somebody give me answers.

0:02:09 Jenessa: Weirdest sound. This one's, I'm going to try to make it as little of a bummer as possible, but it's a bummer. We're going to talk medical decision making and the way that fetal personhood laws are really messing with that. We have a really unfortunate example coming up recently of a woman who was forced to get a C -section against her consent.

0:02:47 Jenessa: Yeah, I thought it would be best to have more women's voices in this and also I've never had a baby so I don't have as much to say yeah oh

0:02:53 Thomas: Yeah, you're like over here with me.

0:02:57 Lydia: Yeah. I've had three. Yes. That many. I know. Can you believe it? Three. Three. One, two.

0:02:59 Thomas: Jeez, that many? Holy shit. That can't be right. Hold on. Is that right? Right. Yes, we have had three now. And the funny thing about giving birth is like it is a real different experience depending on where you are in that picture. You know, Lydia has one experience, obviously, but also there's a lot that blends together and we have very different perceptions of things that happened, which is interesting because like I can only imagine I can literally only imagine what that must be like and how how crazy that whole like the whole like. Like evening, and I guess most of ours were at night. I guess Phoebe was through the night into the morning.

0:03:42 Thomas: That whole time must be a crazy blur.

0:03:40 Lydia: Well, there's so many things happening, right? Your brain enters like this protective state too. So it like rewrites everything that like you, you remember from that and your hormones are jumping up and down. It's crazy. I'm not surprised that we have slightly different memories and experiences of each of those births, but I'm here to provide my experience and um yeah we'll hold hands and get through this together because yeah it's not not not the most pleasant

0:04:10 Thomas: All right. Well, we'll take a break, and then we're going to dig into how these laws are just, they're awesome. They're doing great, doing really awesome, cool. Or not that. We'll see. Cliffhanger. Anyway, patreon .com slash law if you'd like to support the show, get the goodies, skip the ads. All Right. We're take a break and then we'll be back.

0:04:17 Jenessa: I think

0:04:20 Lydia: Topic right

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0:04:31 Thomas: Well, where do we want to begin? Jenessa, I'm sure you want to set up the law and such.

0:04:36 Jenessa: It'll make the most sense to start with the clip uh ProPublica has provided us with of this court case, and then we can talk about some of the background laws. So to get us into this, we have Cherise, I think it's Doyle. She is at the hospital in labor. She has had three children previously by a C -section. If you have any familiarity with this VBAC, vaginal birth after C - section, it used to be like, oh my God, you never, ever do this. Nowadays people kind of do it all the time the risk of what they call uterine abruption the idea that the uterus could rupture essentially in a vaginal delivery after a c -section the estimate is somewhere between 0 .15 percent and 2 .3 percent she knows this she's a trained doula she's been been through these births before. She says, I want to try, at least try, for a vaginal delivery before I have another C -section. In the past, she had a hemorrhage during a C - section. Very scary and risky. Recovering from a C section is very difficult.

0:05:52 Jenessa: I mean, it's a major abdominal surgery. Tree.

0:05:52 Lydia: I can't believe it I mean like you don't think about what a c -section actually is at all when you're learning about all of this stuff but literally like things are moved out of your body in order to get to the baby and then put back in your body you know they're just kind of layering things back in. And I never had to have a C -section, but oh my God, I know quite a few people who have had C -sections, including folks in our family. And that recovery is insane. You cannot move. Yeah.

0:06:22 Thomas: It is criminal to me that we don't know about this. Like more just like dudes don't Know about like, I remember I didn't learn how crazy C -section was until my brother's wife had a C - section. And he was describing I was like, like, that's can't be right. There's no way, there's no way that happened. So I don't know what you're talking about, but it's like, it just feels like another example where we don't learn these things. And I say, we like, we don't kind of broadly speaking, especially men, but, but I think even women, like we don'T teach these things, you know, women and girls, we DON'T really teach like, Hey, a C -section actually, I honestly, if you'd asked me when I was 20, I probably would have said a C - section was like, yeah, no, they cut the baby out. It's like probably easier, really. I mean, like, it's probably like, yeah, you don't have to like, I mean because the other way is not easy. Yeah, you know, for some people especially. I would have thought it was like a relatively simple medical thing, but like it is really, really rough and dangerous sometimes

0:06:51 Lydia: Oh yeah, absolutely not. You don't have to push, you know, you go straight Straight in. Yeah.

0:07:21 Thomas: And a rough recovery. It's criminal that we don't know more about this or no one, you know, seems to really prioritize it until lately. And so what you said about the vaginal delivery after C -section, I feel like my, this is going to be embarrassing because Lydia will know better. And it's just because I don't talk to my family, but I think my younger sister had this situation, I want to say. Okay. It's interesting because I love how we have all these things like tonsils where they're like, yeah, well, they used to just rip every kid's tonsils out the minute they went to the doctor the first time.

0:07:34 Lydia: Mm hmm. Yeah, correct. Yes. Yeah I don't think we need to be doing that. Yeah mm

0:07:51 Thomas: And then someone was like, hey, should we do that? And then apparently they're Like, yeah. Yeah. We should keep doing it. And the 10 years went went by and they're like, well, maybe, you know, and it seems like the same thing where recently my impression is, and you can tell me if I'm wrong, my impression is now it's like, Well, no, you don't have to necessarily go straight to the C -section. And it feels like the reason they were going straight to the C - section. Yeah, there is a legitimate medical concern, but it often feels like it's not entirely about that is more about just like what, like convenience or something for. I don't know what it is.

0:08:27 Thomas: It feels really weird that they did that.

0:08:27 Jenessa: I have heard that that is a thing people are concerned about that perhaps being able to schedule the delivery of a baby is obviously for the patient I'm just like you do you make whatever choices you want I have herd the concern raised that perhaps doctors are also doing like I'm sure the vast majority of doctors are behaving ethically and like trying to not do do that but the temptation may be there I've heard it said I don't

0:08:57 Lydia: A really cynical take would also be like insurance right like you can kind of bill more for c -sections but I don' know.

0:09:01 Jenessa: Know yeah oh god I hope that's

0:09:04 Thomas: Yeah, I kind of doubt that's it. I kind of doubt. That's it I think it could also be again when there's a risk. Well, we can talk about it. We went through a situation but we don't have to talk about now but like we went through a situation where we got basically all but the season like we we went as Max as we possibly could until they're like, all right, like five more seconds and we're doing a c -section and it strikes me that that all was very stressful for everybody and I'm sure they don't love they probably probably don't love trying to make the call of like, well, I have to make a decision. Do we do this or not? And then what if you make the wrong decision and something happens to the baby?

0:09:12 Jenessa: Not yeah yeah yeah oh

0:09:42 Thomas: And so, you know, like I imagine doctors, even if it's not nefarious or anything, it might just be like, well, they don't want to be in that situation where it's like a very discretionary thing that might be life or death. Like I have imagine that's stressful. Would you rather say, okay, how about you call it, play it by ear, you Know, and see, and then you have the risk of like dear to call. Is the mom going to die? Is the baby going to die? Whatever. Versus having a policy of like, no, you already had a C -section, just do a C - section. It's probably much easier just for many psychological reasons.

0:09:42 Jenessa: Yeah

0:09:42 Lydia: Yeah mm

0:09:59 Jenessa: Yeah

0:10:13 Lydia: -mm

0:10:13 Jenessa: There's a lot that went into this there's evolving medical understanding today the general understanding is like there's no rule against it there are some some different risks depending on you know a hundred factors but there's also just a general movement towards giving women more control over their decisions basically she's like the recovery is hell last time I did this I had a hemorrhage which is really bad I got three other kids at home I cannot be taking care of three kids and an infant and trying to recover from a c -section like you can't get out of bed at first you can barely

0:10:45 Lydia: And our country our country recognizes how how hard this is by giving you an extra two weeks of unpaid job protection. That's it. Yep. Yep, yep. You move from six weeks to eight weeks.

0:10:55 Jenessa: Move yeah yeah it's like it's not

0:10:59 Thomas: Wow. When you get a C section, that's the... So it's a longer length of time that you can be not fired. But that's it. Boy. European or anyone not American is going to not believe this.

0:11:07 Jenessa: Helping not paid yeah

0:11:08 Lydia: Yes. Yes, exactly. That is it. That is it, yep.

0:11:16 Thomas: But yes, it is true that's how hellish it is

0:11:17 Jenessa: She says like I understand her expression was I understand there's about a two percent risk of this emergency happening so like there's a 98 chance this will go fine right okay

0:11:30 Lydia: And she's like, I'm willing to risk that.

0:11:31 Jenessa: Right to not go through all this other crap the doctors she thinks have agreed with her because they back off for a few hours and then a tablet computer is wheeled into the room and there's a judge on the screen a judge I sent you a clip if you'd like to play

0:11:44 Lydia: That is insane. Yeah.

0:11:44 Thomas: A judge what probably no but yes we will

0:11:51 Lydia: Literally

0:11:52 Clip: My name is Michael Kalil. I'm a circuit court judge here in Jacksonville, Florida. The state of Florida has filed a petition for declaratory judgment. They're asking for an emergency C-section be granted by the court. I have not had a chance to be able to consult with my own legal representation.

0:12:03 Thomas: What the I'm sorry you were gonna okay so based on maybe it was also because of the thumbnail which was just like I think this this lady I thought she was going to be talking about this you're saying this is the actual footage of a woman in labor with like it's a zoom call this is classic pandemic pandemic Zoom call. Everybody, somebody's like not a cat kind of thing. Like we've got, you know, the judge that we're actually seeing that. Okay.

0:12:10 Lydia: Laboring right now.

0:12:17 Jenessa: It yeah no yeah

0:12:22 Lydia: Mm -hmm, yeah.

0:12:37 Jenessa: And if you'll notice everyone else is like in judges robes or in their suit and she is in a hospital gown in her hospital bed basically

0:12:47 Lydia: Legs not up in the stirrups, but like essentially that kind of

0:12:51 Jenessa: It might as well be yeah

0:12:52 Thomas: What in the world? And who are all these other people? We got Judge Michael Khalil, I think. ASA, Nicholas Salatino, Jenna Gonzalez, Ravenstein, it just says. Someone's got their own. Oh, we got like somebody from the health. So there's a bunch of people. Yeah. Like an office isn't how how invasive is that? But like, what the is that OK? Sorry, I'll have to bleep that. But like what? I genuinely was shocked. I thought this was going to be her telling the story.

0:13:12 Lydia: Exposed yeah oh

0:13:20 Thomas: And then you're like, OK, here I'll play on here.

0:13:23 Clip: My name Is Michael Kalal. I am a circuit Court judge here in Jackson, Florida on the state of florida has filed a petition. For declaratory for an Emergency C-Section be granted

0:13:35 Thomas: Just to count real quick. At that last shot, there were 12 people on the screen, her and a judge and 10 other people. Wait, one of them's a conference room with three people in it. What in the world

0:13:49 Clip: Florida, the state of Florida has filed a petition for declaratory judgment. They're asking for an emergency C-section be granted by the court. I have not had a chance to be able to consult with my own legal representation. And I'm trying to understand how you are taking my rights away as a patient to be able to decide my own care to give me an emergency c-section against my will. Well, let me ask you about that. What about the risk to the child? Anytime you go into childbirth, whether you do a vaginal or a C-section, there is inherent risk to the mother and the baby. I have other children out here in the world that need me. If I die from a C section, nobody on this call is going to take care of my children.

0:14:34 Clip: You have a new doctor coming on. I don't know. They don't have anybody African-American that they can give me. Let me ask you. I know that I don' t find that race really has has.

0:14:32 Lydia: God idiot

0:14:43 Thomas: Oh my god the face this idiot is

0:14:48 Clip: It does have much to do with it because historically black people do better when they have healthcare providers that look like them. It's nobody black in here. I'm so tired of this. I've over this whole situation. Y'all are going to make me have level three tracing how bad y'all stressing me out. Ms. Doyle, that's what's going to be entered. I meant to circulate this order, this proposed order that the other attorneys entered this in today, not requiring anything except for an emergency basis. Thank you so much, Your Honor. I appreciate you spending two hours on a Sunday going through my medical history and fighting for my vagina and my baby.

0:14:53 Thomas: Making what the that is them I wouldn't have believed that was real like that that that comes across like a sketch like a dystopian we got I mean come on what in though I wouldn'T have thought that was true I would have thought they were milking it too much in terms of the republican dystopia of a judge a bunch of judging Judging a bunch of men, some women telling her she's got what about the risk to the baby?

0:15:56 Thomas: And then she is the one answering like, well, like giving medical replies to that. Like what in the world?

0:15:56 Lydia: I think it's like really really important to consider when when you go into like labor and delivery often what they'll tell women is when you are laboring you might not be able to advocate appropriately for yourself because you're like you are your body is focused on something very different so if you have someone with you, you make sure that they are your advocate.

0:16:23 Lydia: They are the person who can speak to you. And that's with doctors. That's, you know, regarding in the room and stuff. I cannot imagine having to not just self -advocate in theroom medically, but also on Zoom with a judge, the anger and frustration and just high emotions that are happening anyway. And then to be in that that position. It is so wrong. So wrong.

0:16:23 Jenessa: I think

0:16:45 Thomas: I'm speechless. I can't even believe it. Yeah.

0:16:48 Jenessa: It's it's really impressive that like she is in labor No attorney. Total surprise. They wheel this in and she's like, are you serious? There's a judge here. That went on for three hours. Three hour long hearing while she is in labor. That was exceptional self -advocacy for somebody in that position. Just to make sure we point out, she's absolutely correct. In this country, Black women are three times more likely to die of a pregnancy -related complication. It's four times higher for Native American women. Black newborns die at three times the rate of white newborns, that is cut in half when they have a Black doctor.

0:17:30 Jenessa: There's a recent example of Janelle Green Smith. She was a Black midwife who was advocating for change on this issue, and she died in January following an emergency C -section. This is a huge problem, and it's a historical problem. The father of gynecology, J. Marion Sims, Sims, came up with all these gynecological procedures by doing experimental surgeries on enslaved Black women without anesthesia.

0:17:56 Lydia: Of course. God, Jesus Christ.

0:18:00 Jenessa: This is the history of gynecology. It's never been right to Black women from day one. Many gyneecologists practicing today were taught the cervix has no nerve endings, and that is why they don't provide pain management during cervical biopsies and IUD insertion.

0:18:12 Lydia: Wrong.

0:18:18 Thomas: What? How could you even think that?

0:18:20 Jenessa: I know, I could have told you, it freaking hurts. Like, yeah, I'm right there. Literally so many women report, like, in the middle of those procedures being like, that hurts, and doctors being like no, it doesn't. It doesn't have nerve endings.

0:18:22 Lydia: Incorrect. Just ask me. I'll let you know. Yeah. Yeah,

0:18:36 Thomas: Unbelievable.

0:18:37 Jenessa: All of her reaction makes perfect sense, even if you want to imagine some scenario where, like, she doesn't understand and the doctors all have the correct medical understanding. Like, it's still correct to understand that if you have a Black doctor and a doctor who is in good bedside manner with the patient who can have a like good conversation with them about these things it is not wrong for a black woman to feel like a bunch of white doctors and white nurses and a white judge telling me what to do is how I end up dead it's statistically

0:19:10 Lydia: I think the rapport is a really, really important thing there too because when I was giving birth to Arlo I was like so anti -epidural I did Phoebe without an epidural I thought I wanted to not have an epidual again for Arlo and I was feeling so much pressure to push way too early and I was pushing and pushing and this nurse kept visiting me and she was like I really need you to stop pushing your body's not actually ready I understand you're feeling that but I'm really worried you're going to permanently damage your cervix if you keep doing this. And if you can't do that, I would really hope that you would consider getting an epidural just to give you relief and to give yourself a break because you're working too hard. You know, all these things you haven't been able to rest, yada, yada. And from those conversations, like she kind of kept visiting me throughout the night and stuff to try and like see if she could encourage me to do that. I got to nine centimeters and I was like, Like, all right, fine. And I got an epidural like at the height of like these contractions and stuff. But it gave me relief. It let me stop pushing on my my cervix. I was able to sleep until they woke me up to say it was time to push. But without that rapport that developed there,

0:20:25 Lydia: I probably would have, you know, stuck to my guns and push through in a way that could have been really, really damaging to my body. So I think that rapport is like a super, super important element here, too.

0:20:36 Jenessa: With any medical procedure, you're just like in this vulnerable place. And if you have that kind of relationship with a doctor to feel like it's not about like, I think I know better than you. It's just I need to understand why you're asking me to do something. And like, Like, what are the risks and benefits? And that compassion that it's not about them telling you what to do. It's about them saying, like, here's what's going to happen or what could happen.

0:21:03 Jenessa: And obviously, it's the number one predictor of malpractice lawsuits, not the number of mistakes you make, but the bedside manner. Doctors who make mistakes but have good bedside matter can walk in and go, I made a mistake. I'm so sorry, and not get sued. It's really important. The American College of Obstetrics and Gynecology has determined forced C -sections are ethically impermissible.

0:21:26 Jenessa: They do not endorse this at all. This is a legal issue. This is not a medical issue. You hear in there, the state of Florida has asked for an emergency injunction here.

0:21:26 Thomas: What is happening legally here? How did they get to this point?

0:21:41 Jenessa: If you have a good doctor with a good rapport, they go through the risks and benefits and then at some point have to respect your decision making. And if you have a shitty doctor, they walk away and they talk to the hospital ethics board and then the hospital experts board files a court complaint against you and tries to force you to do stuff.

0:22:01 Thomas: Wow. Or, by the way, maybe they're a good doctor when it's a white patient, but then they're like, well, this this person's unreasonable and they don't even try. But is it also to be, I guess, to to attempt to have some charity? Does this have to do with some bullshit laws that was passed and the doctors are not sure what what can or can't be done?

0:22:09 Lydia: They're being

0:22:20 Jenessa: Yeah. Yeah, so a little bit of both. Sometimes we have seen, like for example, when a patient needs abortion care and doctors have been hesitant to act, that is often from these same kind of fetal personhood type laws that say like, oh, if there's a heartbeat, you can't do anything. Thing we have often seen doctors who express this deep regret or not regret but like fear around I want to help this patient so bad but I think legally I can't and so I don't know what to do and so we're gonna call a judge because I really want to health this patient and I also don't want to go to jail so hypothetically that could happen but realistically here what is often happening This is in the state of Florida, and we have many cases out of Florida where it's kind of the other way around, where this law entitles them to do something like this. And some doctors are taking advantage of that, and some are not. I think it'll help to go through what your medical decision -making rights normally look like. It's mostly a state law issue. On the federal end, we don't really have a ton of laws about this. It's mostly on the constitutional end. You have a little bit of like fundamental rights around it. There is in general for a competent adult, a fundamental right to make your own decisions that is nearly absolute.

0:23:47 Jenessa: Absolute. There have been quite a few court cases around it that almost take it for granted. From the very beginning, we have some of the earliest lawsuits just be like, well, obviously, for a competent adult, you can choose to have or not have almost any medical treatment. We're talking about an exception today. There was one where O 'Connor writes a concurrence that's really helpful. So this was a case in 1990 where the patient is comatose and the parents wanted to withdraw life support based on wishes that the daughter had expressed before going into a coma. Written in the case, like no citation or anything. They just say, yeah, this normally, if she were conscious, she would absolutely just have a fundamental right to remove the feeding tube, to say no to all of these treatments, even if it was going to end her life. The burden would be on the state under strict scrutiny because it's a fundamental, right? They would have to show they They had some compelling interest to stop you that outweighed that right that you have. We're going to treat this differently because she's comatose and it's somebody else making a decision on her behalf. And that's what complicates this. O 'Connor, in her concurrence, writes more in depth and says, hey, I think we should actually talk about where that right comes from because we haven't actually written it down. We've kind of taken it for granted. First of all, the mere act of touching you at all without your consent from even before the Constitution, that was battery. It's a civil tort. It'S a crime.

0:25:18 Jenessa: You just can't touch people if they don't want you to. We've had many cases that have said even overwhelming state interests, like trying to get evidence of a crime, cannot override your bodily autonomy.

0:25:30 Lydia: Combative like administering like a rape kit kind of thing without the patient's consent you can't do that Yeah. Yeah.

0:25:36 Jenessa: There was a case where cops think this guy's a drug dealer, burst into his bedroom. They point at some pills and say, what is that? He shoved them in his mouth. The cops tried to pry his mouth open and they couldn't he swallowed them they took him to the hospital and forced him to take emetics and he barfed him up and the court said the classic thing you're looking for to get substantive due process rights this shocks the conscience this is clearly a violation of your due process right you can't be doing that you have a right to your own body I thought you'd appreciate this after the latest uh thing matt played you with clarence thomas talking about natural rights.

0:26:17 Jenessa: The judges said due process of law thus conceived is not to be derided as a resort to a revival of natural law. To believe that this judicial exercise of judgment could be avoided by freezing due processof law at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges. So essentially, we can of course say that you have rights not explicitly in the Constitution. That comes from due process, that comes from the Ninth Amendment, which says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

0:27:05 Jenessa: Yeah, it doesn't literally say anywhere that you can't have your body violated but like obviously you that's a right that you have there was a case in 1905 that said a rare occasion where we will override your bodily autonomy vaccination requirements public health that is when a compelling state interest comes in that does actually require violating that autonomy economy.

0:27:31 Thomas: Well, that's interesting, because, you know, obviously, the vaccines came up a lot in recent memory. And I always thought it's like, yeah, it's also our right to not be exposed to a virus. You know, it'S kind of, I think it'S a little, I almost wonder if it'S ceding too much to the anti -vax people to even talk about it like that. It'S like, there'S an exchange happening, which is, if you want to have your kids in this public school or be in this certain space, that is not, that'S not a right you have. That's a privilege that you are asking for. And in exchange, other people don't want to be exposed to a virus. And like, I wonder, legally, is that, I mean, that's just me pontificating or is legally, Is there anything to what I'm saying?

0:28:15 Thomas: I don't know. If you say it's a question of bodily autonomy, I suppose if you're trying to say we're giving you no other choice.

0:28:15 Jenessa: Yeah, this one was. This was a 1905 compulsory smallpox.

0:28:27 Thomas: It wasn't like military or anything like that.

0:28:30 Jenessa: No, this was a state of Massachusetts had a compulsory vaccination law for smallpox in 1905. They actually had an exemption for children at the time.

0:28:39 Lydia: Met

0:28:39 Thomas: Oh, wow. OK, I guess that's a little bit different story. I misunderstood. I thought you were talking about like the school ones or the other military ones where it's like, yeah, it's not just we're making.

0:28:43 Jenessa: Yeah. Yeah? No, no. You're not entitled to those things. So so it's different.

0:28:51 Thomas: Do those hold up these days if you had one that's just, hey, we're making everyone vaccinate? I was under the impression that wasn't what we could do.

0:28:59 Jenessa: I don't know, actually. This was cited in a case in 1990 as an example, and it's in my con law textbook, which is not that old, as still good law.

0:29:12 Thomas: And it stands for what? What principle? It wasn't it that we can't make you do it?

0:29:15 Jenessa: In this case, we could because you do have, under due process, you have a bodily autonomy right that in general cannot be violated. Strict scrutiny is going to get applied, but the public health context, at least in that moment, was such that it was appropriate. Exactly.

0:29:35 Lydia: That standard.

0:29:36 Jenessa: It overrode. It met strict scrutiny.

0:29:39 Thomas: Interesting. OK. Okay. I do not think that would fly if it came up

0:29:40 Jenessa: So that was one example.

0:29:44 Lydia: These days. Yeah, yeah.

0:29:44 Thomas: These days, but okay. Interesting. Thank you for the, sorry to divert you, but I was just curious.

0:29:45 Jenessa: I bet you're right. I Bet You're Right. Yeah. No, no.

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0:29:54 Jenessa: You're probably familiar with Griswold v. Connecticut.

0:29:56 Thomas: Right. Well, that's the birth control, right? Isn't it?

0:29:57 Lydia: Prefer

0:29:59 Jenessa: Correct. That was you have a right to access birth control. They decided that one under marital privacy, not a medical thing, like a bodily autonomy thing. So think of that one in a slightly different context. The kind of exemptions you have in here, there's a general thing for emergencies. If you are unconscious and having a medical emergency, there is a presumption that you would want doctors, you know, the EMT shows up at a car accident. They're not going to like hunt down your partner for consent. They are just going to treat you. There's a presumption that your average person would probably want to be saved.

0:30:39 Lydia: To live.

0:30:40 Thomas: Yep. Fair.

0:30:41 Jenessa: Yeah, yeah. So consent is presumed in some situations like that. Of course, anybody under 18, they can give assent, and there's a requirement for that. You have to give age appropriate, you give some information and everything, but somebody else has to give consent, has to make the decision. The default is going to be the parent or guardian. The thing there is it's got got to be somebody with the best interest of the child. So the state has an interest in the life of all of its citizens, including children. They can sometimes override parental decision -making when it becomes clear that the best interests of the childhood are not being served in that situation. Extremely complicated area of law that I am always reluctant in these settings to spend too much time on it because I do not want to concede that a child outside of your body has any relevance to a child inside of your body.

0:31:36 Jenessa: That body of law where you make a decision about someone else's body is relevant to a body of war where you made a decision about your body, like they have to be different. But that is one exception where you make decisions about someone else. The other option is incompetence. This becomes mostly a state law thing, so I'll give you the example of two people with nearly identical scenario. They both need an amputation of a foot.

0:32:07 Jenessa: One of these happens in Tennessee. The other happens in Massachusetts. One is a person with schizophrenia. The other is a person with depression and dementia. So they both, in general, might sometimes not have the best decision -making capacity for some things.

0:32:23 Thomas: I was thinking of the idea for a second that the foot was going to cure that. Like back then they're like, we'll try taking his foot. Foot. I don't know. We don't know anything. Unrelated. Okay. Thank you. For the idiots in the audience. Unrelated. Just thank you. I'm glad I could clarify.

0:32:31 Jenessa: No, unrelated, they get injuries and need Yeah. Yeah. So the one person, they have a five to 10 % chance of survival if they do not get the amputation and a 50 % chance to survival with the surgery. So it's still not a good situation. This person describes her black feet as just being covered in soot. And when the doctors say like, okay, would you prefer to die rather than lose your feet? Her answer is possibly. That's the the most definitive expression of her desires that they get she does not express a desire to die she expresses a strong desire to live and an equally strong desire to keep her dead feet she refuses to make a choice the judge says yeah like it's

0:33:21 Lydia: Yeah And just unmedicated for her schizophrenia kind of thing or under medicated potentially.

0:33:28 Jenessa: Yeah she has not fully expressed what she actually wants here so they're going to override her decision and say I understand you say you don't want to get an amputation, but it appears that's because you think you don's have gangrene and you do. So that's not great. The contrary case is this woman fully expresses, I understand if I don't do this, I am almost certainly going to die. I've been very unhappy since the death of my husband.

0:33:43 Lydia: Gangrene. Yeah.

0:33:59 Jenessa: I don's believe this operation is going going to cure me. She'd had some more minor ones before and it kept coming back. She does not want to live in a nursing home. She says she does not fear death, but welcomes it.

0:33:59 Lydia: Mm hmm, mm hmm.

0:34:14 Jenessa: She tends to be stubborn and somewhat irascible, which I don't fully know that word, but I think by context I am picking it up. She expressed to the judge a desire to get well, but indicated she was resigned to death and adamantly against the operation and they were like okay here's the thing you're allowed to make bad decisions the fact that like you have dementia in general I am not seeing dementia in this decision I am seeing a person who is like I don't want more of my foot cut off I'm sick of this I'm old my husband's dead I'm out of here yeah and if she didn't Yeah. If she didn't have these mental health conditions, we would let her make this choice.

0:34:20 Thomas: Irresistible. Yeah.

0:34:50 Lydia: I've had enough. Yeah, yeah. I'm good. Mm hmm.

0:35:01 Jenessa: These mental health condition do not appear to be contributing to the choice. You have to let people make bad decisions. That includes people with disabilities. So it's really important for disability rights that people still have the autonomy to make even bad decisions, so it's a good way to distinguish, like, these are two people in almost the exact same scenario. One of them is in denial one of them is making a decision most of us would say we wouldn't make while it's all hypothetical right now but we're not in it

0:35:34 Thomas: So it sounds like informed consent without that term, right? I mean, if you think your feet aren't actually going through what they're going through, that's not informed hmm

0:35:43 Lydia: So this lawsuit, the woman who was like, I've had enough, you know, I don't want to do another surgery, et cetera, et cetera. So she was sued by the state. Oh, I see. OK. OK.

0:35:59 Jenessa: In that case it was her daughter tried to get guardianship over her to force her to do it and they denied that guardianship motion and And said, no, she still gets to make her own medical decisions because we're not seeing an inability to make rational, informed medical decisions. And if her rational, formed decision is to do something that 90 % of us would say is crazy, well, you know, people are allowed to do that.

0:36:21 Jenessa: In the other case, it was, she was housed in a mental health institution because she had schizophrenia. And I believe it was the people who worked at the hospital were trying to force her to do it. So that's more the state intervening. So, OK, this is how it works if you're not pregnant. You just in general, as an adult, you can choose whatever you do or don't want to do, including I fully understand that if you don't amputate my foot, I'm going to die and I don't care. I'm gonna let my foot rot off in my bed and die. And like you can do that. That's you. You. And then as soon as you're pregnant, everything just goes out the window and it drives me up a wall. The standard in Roe was a trimester standard. This is Roe v. Wade in 73. They said in the first trimester, I wish more people would acknowledge this, the risks of the abortion procedure were far less than the risksof giving birth. So there is absolutely no logic by which you can say that we have to regulate this procedure to save the mother because if she doesn't get the abortion she's going to give birth and that's more

0:37:33 Jenessa: Dangerous so like by what logic first trimester states can regulate it the way they would regulate any medical procedure which is to say not very much you can require that doctors are doctors that's that's about it in the second trimester at that point now keep in mind this is the 70s they say the risks start to go up now you can do like abortion specific kind of regulations that take into account like the state has an interest in the health of the mother so we can make abortion specific things to save the healthof the mother it's still not a state interest inthe fetus yeah yeah this was was the 70s third trimester fetal viability begins then they say now the state gains an interest in the life of the fetus now they can start doing balancing the state's interest in the life and health of the mother against the state interest in life of a fetus and like playing those games it'll still always be you have to have an exception for the life in health of a mother so So if it's between the two, the state has to value the mother's life and health over the baby's life.

0:38:50 Jenessa: Yeah, when it's the baby'S life or the mother'S medical decision -making, now you can value the babyS life more. Hot take. I think that's not far enough. I just think it should always be the motherS medical decision making and the state can butt out of the hospital room.

0:38:48 Thomas: Begrudgingly

0:39:08 Jenessa: That's our most aggressive one we ever had was in the 70s. That in the third trimester they could ban it in the second trimester they could regulate it and in the first trimester the state pretty much had to leave it alone it was it was doing all right yeah

0:39:06 Thomas: It is a hot take yeah roe was uh good that was good not not

0:39:27 Jenessa: Yeah Planned Parenthood v. Casey came around and switched it from trimesters to like pre -viability post -viabilty but now they said the entire life of the pregnancy the state does have an interest in the fetus pre - viability the state can't place a substantial obstacle or undue burden, and then post -viability, we get into essentially what the third trimester looked like in Roe, that you can regulate and you still have to have an exception for life or health of the mother. And then Dobbs happened, and it's just, it's rational basis test. This drove me nuts. Alita writes this, he says, a law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. That's why we do rational basis, right? He cites to Heller v. Doe, which is a case where they used rational basis review, not because the issue presented like necessarily, like there was any argument of why it should be rational basis. But because the argument that it should get strict scrutiny was not properly raised below the judges say we're not going to debate if this law should get strict because you hit

0:40:44 Thomas: Terrible so

0:40:44 Jenessa: The supreme court and you never discussed it at the trial court yeah

0:40:45 Lydia: You didn't talk about it.

0:40:47 Thomas: Therefore in alito's mind this stands for that's rational or that I forget which now rational basis boy that doesn't seem right to me

0:40:51 Jenessa: That all health and welfare laws are entitled to strong presumption of validity rational basis yeah it's almost like basically a lie yeah that's not what it says that's it's not what it says. That's how we end up with states being able to do whatever they want within a rational basis test, essentially that the state can value the life of the fetus over the mother's decision making whenever they want. No more substantial obstacle, burden, whatever. Just do whatever you want, I guess.

0:41:04 Thomas: That's shoddy lawsmanship right there. Wow. So which one was this? When was that? That was Dobbs. Oh, Dobbs did that part. Oh okay. I missed that part of Dobbs

0:41:33 Jenessa: This was Dobbs. Yeah, 2022. Yeah. Those are basically our big three for changing what the standard was. And pre -Roe, obviously, there's just a mess. That takes us to what is happening in all of these states. You probably saw in Georgia, Adriana Smith, this is like what you were talking about. Doctors assumed that their law that was basically fetal personhood meant they couldn't let her die.

0:42:06 Jenessa: She was brain dead at eight weeks. They put her on life support and then thought, we can't take her off life support. She's pregnant. The fetus has a heartbeat.

0:42:14 Lydia: And now we have an incubator, basically. Yeah, dark.

0:42:17 Jenessa: Yeah, just a human incubator. There's this quote from her mother that says, I'm not saying we would have chosen to terminate her pregnancy, but what I'm saying is we should have had a choice. I think that's so critical. People always think about these laws as like, what's ethical? What's right? What would I do in that situation? I don't care. That's not the point. Not everything that's unethical is illegal, and not everything that is illegal is unethical. The question is not, do you think this was a good thing to do? The question is, when this decision is getting made, should a judge be in the room?

0:42:31 Thomas: In

0:42:54 Jenessa: Should the state involve itself? Should a doctor have to go ask a judge after the doctor and the patient made a decision? That's the question when you decide whether or not it should be illegal, not is it good or bad? Like that's irrelevant to the question of whether a judge should be there.

0:42:53 Lydia: Mm,

0:43:12 Thomas: In fairness, I just want to make sure I asked just in case, but doesn't that usually arise like that one doesn't usually arise because there's a dispute or something?

0:43:20 Jenessa: There was no dispute with the

0:43:22 Thomas: Oh really? So there wasn't like one family member wanted this and it was literally the doctor. It wasn't that that the doctor wasn't sure what they're allowed to do because of the weird law or something

0:43:26 Jenessa: Family yeah yeah the hospital was like we have to keep her on life support and the family was like excuse me what do you like this was against her will the family's will the husband's will

0:43:41 Lydia: But the hospital didn't want to risk being sued.

0:43:44 Jenessa: Yeah the Hospital didn't want to get

0:43:46 Thomas: Good point I feel like the ones in the past were sometimes like well if there's a dispute then it's like well the state kind of has to step in otherwise who's deciding it or whatever the government but but this one so we've gone so far off the rails you're saying that this is like it's not even no one wants this it's just the hospital thinks the law might be it and then the government and then alito gets to decide your medical future which is just not good he's the last person that That should be deciding anyone's anything.

0:43:50 Jenessa: Sued right yeah yeah right yes exactly

0:44:13 Lydia: Just stick to your flags my

0:44:16 Thomas: Yeah. If you need someone to help you pick out a flag, then maybe. Yeah.

0:44:20 Lydia: Guy then you call him then we want to know what you're

0:44:23 Jenessa: Yeah. That's exactly the point we're hitting here.

0:44:27 Thomas: Gotcha.

0:44:28 Jenessa: There've been plenty of cases where, you know, the parents want to do this and the husband wants to do that. And there was no healthcare proxy and it's not a hundred percent clear who should do what. Or these cases about, is this person really making a rational decision? Or, oh, the person is not able to make their own decision and people are worried that the surrogate decision maker doesn't really have your best less interest at heart. Those are freaking complicated.

0:44:51 Thomas: Well, yeah. And, you know, to correct myself even more, to argue against myself, I suppose I think in a perfect system, the state really isn't coming in and making the medical decision. They're just saying, here's who should get to make the medical decisions. Okay. Just clarifying. Yeah. So that makes more sense. Yeah.

0:45:03 Lydia: Thinking mm

0:45:04 Jenessa: Yes, yes, that's much better generally. Yeah, New York actually solved this by saying we have a whole breakdown of if you don't have a health care proxy, what do we do automatically? First person is your spouse. You don't want to have a spouse, it's your parents. You don't wanna have living parents, it is your siblings. And it goes down a list all the way to your friend.

0:45:29 Jenessa: Like there's a famous case where a a priest who had no living relatives. His very good friend got to make the final decisions about what to do while he was in those last terminal stages. And it was totally compliant with that preset law because a lot of people do not go get a health care proxy. A lot of People do not go get an advance directive, and then they're not competent to make that decision. And probably a lot of times we have, I can tell you about all these laws, probably 99 % of the time, the doctor and whoever is around, talk about it and make a decision and nobody worries about whether this is technically the right law and just do it. I was having a surgery and my partner, like we weren't even engaged at the time, but he's the one who drove me there and sat with me through all the prep and like if something had happened, they're not going to go call my mom. They're going to run out there and ask him what to do. Legally, would he have any right to make a medical decision for me? Absolutely not.

0:46:29 Jenessa: But they probably would have just run out there and been like, what do you want us to do? And I would have been glad that they did that instead of like trying to chase down who's technically my proper surrogate. Like, screw that. So most of the time, even these terminal decisions are probably just being made amongst families casually and nobody's involving the state because because why the hell would you involve the state? That's crazy.

0:46:55 Thomas: What?

0:46:55 Jenessa: One hospital in Florida, same hospital, 1999, pregnant woman is told she needs a C -section. She leaves the hospital against medical advice. Cops dragged her back to the hospital and forced her to have a C section. She lost her lawsuit. The judge said the state had an interest in the fetus that overrode your decision making.

0:47:16 Thomas: Oh, wow. So that's even before all this Dobbs nonsense. Okay.

0:47:22 Jenessa: Mm -hmm. 2009, there's a woman who's 25 weeks pregnant. She gets some premature labor, some early contractions. She's told she needs to remain on bed rest. And she says, I would like to go home to my other children. You are not keeping me on bed rest for the next 20 weeks. The hospital calls a judge, orders her to undergo any treatment necessary to save the fetus there's an emergency c -section that results in a stillborn baby yeah the appeals court says the judge should have required first a finding that the fetUS was viable but does not say anything about oh and you shouldn't have overridden her right to medical decision making

0:48:11 Thomas: Florida being the problem,

0:48:05 Lydia: 2009 that's insane to me I mean for so many reasons but like, yeah. Not just Florida, though. You said this was the same hospital?

0:48:12 Jenessa: Yeah florida this is all the same hospital

0:48:12 Thomas: Right? Right oh it's

0:48:16 Lydia: This is all occurring at the same hospital.

0:48:18 Thomas: Like one asshole hospital oh yeah

0:48:21 Lydia: In 2009, bed rest, I could be wrong. You can accomplish that at home. You don't have to be in a hospital bed for bed rest. You just have to make sure you have the support at home to care for your growing baby in that way. Oh, my God. Jesus. Yeah.

0:48:34 Jenessa: Yeah so much of this is it's that lack of trust that like she's just gonna go home and like go do jumping jacks like that you can't trust her to she has kids at home maybe

0:48:45 Thomas: I would have to imagine if she said she was going to be parenting her kids at home and she needed to maybe they're inferring or maybe that was part of the the dispute was like they couldn't let her do that yeah

0:48:53 Lydia: Maybe she doesn't have the support in order to maintain bed rest at home, but

0:48:55 Thomas: Which is still like I don't then what's the word of those kids don't those kids

0:49:00 Lydia: But yeah, don't they have rights to care? And yeah, crazy.

0:49:00 Thomas: Have, you know, like a right or the state has an interest in those kids getting care? Yeah. Weird.

0:49:06 Jenessa: The end of this is god forbid the person has a miscarriage because of choices they made like they're allowed to have an abortion at that many weeks like but you are gonna for like it just doesn't add up to me

0:49:19 Lydia: And all of that work still resulted in a dead baby. So like, what did you accomplish? Hospital. Jesus.

0:49:22 Jenessa: Logically yes nothing trauma trauma is what you accomplished same hospital 2023 brianna bennett I know

0:49:30 Thomas: What is wrong with this hospital? Who is in charge of this hospital? Is it like Alito's hospital?

0:49:35 Jenessa: Well I think that's what this reveals most most medical institutions have people who are compassionate who will do the rapport to go I understand all the things you're saying I want to try to help you understand let's do medical decision making together no they These people just call the cops.

0:49:37 Thomas: Yeah, check that.

0:49:37 Lydia: Check the flags.

0:49:56 Jenessa: This is almost an identical situation to the video we watched. Brianna Bennett, also a black woman, had had prior C -sections. The recovery had been terrible. She lives with her mother, who has a bad hip and needs home care. She's like, I can't take care of other children and my mother recovering from a C -section. I want to try to have a vaginal delivery. Specifically picks this hospital because she knows they have a neonatal intensive care unit it that is like specialized for high -risk pregnancies, high -risk babies.

0:50:25 Thomas: A neo -Nazi in charge of the decision making.

0:50:27 Jenessa: Yeah, it's literally identical. The doctors brought in a judge to get an emergency order to force her to get a C -section. And she says the same thing. There's a quote from her hearing. Are any of you going to help me bathe or shower? Are you going to help me change my pad? Areyou goingto lift the baby out of the bed and put me in the bed because I can't lift my legs? Is anyone going going to help me.

0:50:50 Thomas: And the court said, dear God, no. Gross. Ew. Ew, that sounds like women's stuff.

0:50:55 Jenessa: That's all one hospital, all three of those cases.

0:50:57 Thomas: What in the, stop going to this hospital, everybody. I'm not blaming the victim, but everybody should stop going to whatever this hospital is. Yeah, yeah, name and shame.

0:51:03 Jenessa: This needs to be made aware so that nobody goes there.

0:51:05 Lydia: Let's name them. Let's name them. Yeah.

0:51:08 Jenessa: So this is all in a ProPublica article about Charisse Doilet's case. They break down so many of these examples. And a larger problem with advanced directives, for example. You make this document while you are competent to make your medical decisions, and you say, here are the things I would and would not want done to me. This is very similar to like before you have a surgery, they warn you of risks and benefits and you sign something saying like, yes, I do want a blood transfusion if something bad happens. So like they got informed consent in advance and that solves that problem. As of June 2025, 29 states will ignore or restrict your advance directive if you are pregnant.

0:51:51 Jenessa: Just doesn't matter. Oh yeah, literally the only thing that would cause that.

0:51:51 Thomas: Wow, only if you're pregnant. And so their reasoning is like, well, it's another life that we get to take into account or something.

0:52:02 Jenessa: Yeah, there's a bioethicist quoted in the article who's like, literally, the only scenario where somebody else's life gets to override your medical decision making is pregnancy. That's it.

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0:52:19 Jenessa: I can send you out on a positive note that this has been overturned in Michigan. Koskinoja v. Whitmer, Governor Whitmer did not oppose any of it. Stipulated to all the facts and the legal conclusion, they had a law just like this that said, oh, you can make advanced directives to do X, Y, Z. First, there was a movement in 2022 to get a constitutional amendment on the ballot and it passed for reproductive freedom. One of the things it said was the right to make and effectuate decisions about all matters relating to pregnancy. All.

0:52:55 Jenessa: In 2026, they sue and say, so clearly, this law that says your advance directive doesn't count if you're pregnant, that violates our constitution, supremacy, that's going to win. Governor Whitmer says, you're right. All the facts, I agree. The legal conclusion, I disagree. I'm not opposing this. And the judge says there is a live case or controversy because you can't guarantee a Democratic governor forever who's not going to oppose this someday. So allow me to officially decide. I also agree.

0:53:32 Jenessa: We have to get rid of this Michigan law. It violates the Michigan Constitution.

0:53:32 Thomas: Oh, wow, I thought that was gonna be in a bad way, but it turned out good.

0:53:40 Jenessa: Yeah. So, hey, amend your state constitution. Get rid of these laws. Elect Select Democratic governors and Democratic legislatures and you too can change this stuff. It does not have to be this way.

0:53:54 Lydia: Mm -hum.

0:53:55 Jenessa: There's nothing in the federal constitution that says you have to override pregnant women's decision making yet.

0:54:03 Thomas: Yet. Yeah.

0:54:03 Jenessa: Let's, uh, yeah.

0:54:05 Lydia: Why did you even speak that into the universe, Jenessa? Jesus.

0:54:11 Jenessa: Oh, God. Yeah, let's not have federal fetal personhood, please. Some of the states are doing it and we are seeing this as the consequence. That is what it means. You're in the middle of labor and somebody thinks you might not have the best interest of your own child in mind when you're trying to save your own body so let's wheel a judge into the room the most invasive thing possible oh and you're not entitled to representation because it's an emergency order her she was not entitled to a lawyer yeah so that yes

0:54:45 Thomas: Yeah, wow. That is that is crazy. They always hide behind the life of the child, life of child. But again, she has kids at home. It's not good for kids. This is crazy medical claim. I promise I'm qualified to make it is not good. Good for your kids. If you die, usually like usually especially small children can be quite bad yeah

0:55:05 Jenessa: Well and this belief that like this woman who has three kids at home doesn't care about the baby she's about to have doesn't have the best interest of that baby in mind that's where this idea that like oh the reason they're opposing abortion is because you want to kill your baby but now they're going to weaponize that same logic against a pregnant person who obviously is trying to give birth to the baby right now and

0:55:33 Lydia: Yeah. Yeah. Carried the baby to term. Yeah.

0:55:33 Jenessa: Obviously wants it. Yeah. Like, is trying to make the best decision for her and that baby right now and just is not making the decision her doctor thinks she should make right this second based on a 2 % risk of something.

0:55:49 Thomas: Remind me and so what was the result of this story again they forced her to have a c

0:55:54 Jenessa: The judge put in an order that said, I'm not going to force you to have a C -section right now. You will be forced to have a C-section in an emergency which again if you were not pregnant even in an emergency you could walk out that door and die in their hospital parking lot if you wanted to and then it did become an emergency the baby's heart rate dropped it's unclear at that point like she probably would have consented to it at that point anyway because baby's heartbeat was dropping but they did without even talking to her about it just wheel her into the operating room and had a C-section baby's fine she's doing okay but she's traumatized. There was another hearing the next morning at 8 a .m. to go over everything that happened. And a doctor, yeah,

0:56:00 Thomas: -section oh right right

0:56:13 Lydia: That gets weaponized sometimes.

0:56:27 Thomas: Yikes well that's

0:56:37 Lydia: What? No.

0:56:38 Jenessa: The baby at that point is in the NICU.

0:56:38 Thomas: Good yeah

0:56:39 Lydia: Leave me alone. I'm trying to sleep.

0:56:43 Jenessa: She hasn't even like gotten to spend time with the baby. And a Doctor is reviewing her medical record and she interrupts to say, this is re-traumatizing. I want to see my baby. You guys can have this hearing without me.

0:56:55 Lydia: Yeah, seriously.

0:56:55 Jenessa: And at that point the judge says Yeah, I am relinquishing jurisdiction because if the baby's already born I don't have jurisdiction over whether you should have a c -section so fine goodbye truly this is what it looks like when you say the state has an interest in a fetus this is how it ends

0:57:07 Lydia: Unbelievable.

0:57:07 Thomas: Holy crap

0:57:16 Lydia: Mm-hmm,

0:57:17 Thomas: Yeah there's no clean way to do this there's. There's no clean and easy. Like, you know, this is the kind of thing I really people should watch this clip. Like it is dystopian as hell. I can't. I really, truly, I might have thought if I presented that in a different context, I would have thought it was fictional.

0:57:34 Thomas: And I would've thought they were laying it on too thick. Like all right, come on. Like the judge is going to say like, oh, I don't think race has anything to do. Like it was, I was speechless when you showed me this, like what in the world that, but that's, that's kind of inevitable. If this is where we go

0:57:50 Jenessa: Yeah if it's between the patient and the doctor you can trust trained medical professionals and pregnant people to be thinking about themselves and the, at that stage in a pregnancy, the very wanted baby to make smart decisions. And if every once in a while somebody makes a decision you wouldn't make, oh, well, that's the world we live in. But as soon as you say the way we prevent someone from ever making a decision I wouldn't like is to give the state an interest, a legal interest in the life of a fetus, this is how it ends. I don't see any other their way around it that this is going to happen

0:58:26 Lydia: In any other case, conservatives would be so violently opposed to that the state gets to make any sort of decision for them, their body, their family, etc., etc., their children. Yeah, exactly. But here, that just goes out the window. Though.

0:58:37 Jenessa: Their child yeah yeah honestly

0:58:46 Thomas: Horrifying I can't believe that is there what are we keeping an eye on with this I mean is it do you think this is getting worse before it gets

0:58:53 Jenessa: I think just bringing attention to this is really helpful I'll give you an example um the average american given a poll about abortion will say the 15 week mark when you say oh this state has a 15 week abortion ban people will say oh okay yeah that sounds reasonable as soon as they see what that actually looks like a person who is 20 weeks pregnant and has the anatomy scan and oh god something's terribly wrong and can't get an abortion it has to travel to another state and all of that all of a sudden people are like oh god no 15 weeks is way too early. I think showing people this drawing attention to this will change minds because it sounds reasonable in the abstract the idea that like you know donald trump wants to be like people are getting abortions the day before the due date and like that's not happening

0:59:09 Thomas: Better yeah yeah yep yeah you really saw the product of that misinformation when this happened when all the conservatives and then they would interview a lot of the like older conservative women and they would be like oh well I didn't think it meant this you know because I thought you know the baby was a little guy in there. It was just a little guy in a chair. The stupid pictures they make for anti-abortion rallies, it'll be like a fully grown little person in there at like one week. That's nothing. And it really showed how effective their misinformation is.

1:00:03 Lydia: I know. Yeah. A six-month-old baby. Yeah, yes,

1:00:22 Thomas: The rubber met the road, you know?

1:00:22 Jenessa: I think from a psychological perspective anybody who can see this and not empathize with this woman like they're too far gone you can't help them but I think a lot of people would see this and empathize and understand that we need laws to make it so this can't happen and that can really help to say like yeah this is a problem and this is actually kind of what you voted for so that's what these policies actually look like in practice stop imagining an abstract thing in your head that's never going to happen this is what really happens we know that that works so spreading this story I think is the most effective thing otherwise states are going to keep enacting fetal personhood and this is gonna happen

1:01:11 Thomas: All right. Well, spread it far and wide. Thanks so much, Jenessa, for the breakdown. Thanks, birthing person Lydia, for joining us, giving your perspective. And thanks, listeners, of course. Wow, a lot to think about. I guess we will see you on Vapid Response Wednesday. Thanks so mucho for listening, everyone.

1:01:18 Lydia: You're welcome.

1:02:02 Jenessa: And also I've never had a baby so

1:02:05 Lydia: I've had three.

1:02:06 Thomas: Jeez, that many? Holy shit.

1:02:07 Lydia: Yes, that many. I know, please

1:02:10 Thomas: And the court said, dear God, no, gross. Ew, that sounds like women's stuff.

1:02:17 Lydia: Expand on your woodcock.

1:02:19 Thomas: Sounded something bird-related.

1:02:20 Lydia: Did it? Was it bird-related, Thomas?