Taboo Trades
Taboo Trades
Valuing Reproductive Loss with Jill Wieber Lens
My guest today is Jill Lens, who serves as the Dorothy M. Willie Professor in Excellence at the University of Iowa school of law. Professor Lens is a leading legal expert in reproductive justice and rights, with a particular focus on the legal treatment of stillbirth and pregnancy more generally. Her research is inspired by her son Caleb’s stillbirth in 2017, when she was 37 weeks pregnant.
She joins us today to discuss her recent paper, “Valuing Reproductive Loss," published in 2023 by the Georgetown Law Journal and coauthored with Dov Fox. That paper explores the tension between abortion rights and compensating the victims of reproductive loss and argues for a post-Dobbs reasessment of the law. I’m joined by UVA Law 3L, Alyssa Lawrence, who co-hosts this episode.
Further Reading:
Lens bio: https://law.uiowa.edu/people/jill-wieber-lens
"Original Public Meaning and Pregnancy's Ambiguities," with Evan D. Bernick, 122 Michigan Law Review 1443 (2024), Journal | HeinOnline | UI Off-Campus Access (HeinOnline) | Lexis | Westlaw
"Valuing Reproductive Loss," with Dov Fox, 112 Georgetown Law Journal 61 (2023), Journal | HeinOnline | UI Off-Campus Access (HeinOnline) | Lexis | Westlaw
"Abortion, Pregnancy Loss, & Subjective Fetal Personhood," with Greer Donley, 75 Vanderbilt Law Review 1649 (2022), Journal | HeinOnline | UI Off-Campus Access (HeinOnline) | Lexis | Westlaw
"Counting Stillbirths," 56 UC Davis Law Review 525 (2022), Journal
Krawiec bio: https://www.law.virginia.edu/faculty/profile/kdk4q/1181653
You know, I've had an early miscarriage that I don't even really I don't even I was barely pregnant. I don't even know that I consider that a pregnancy loss. And then I had, you know, my six my six pound baby died at the end of pregnancy. So I've had the two extremes. But it's just different for everybody. And to be honest, I always think it's a little bit comical that the state is even trying to define it. Like, can I can I drive this boat as far as telling you what just happened to me?
SPEAKER_06:Hey, hey, everybody. Welcome to the Taboo Trades Podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. My guest today is Jill Lenz, who serves as the Dorothy M. Willey Professor in Excellence at the University of Iowa School of Law. Professor Lenz is a leading expert in reproductive justice and rights, with a particular focus on the legal treatment of stillbirth and pregnancy more generally. Her research is inspired by her son Caleb's stillbirth in 2017, when she was 37 weeks pregnant. She joins us today to discuss her recent paper, Valuing Reproductive Loss, published in 2023 by the Georgetown Law Journal and co-authored with Dove Fox. That paper explores the tension between abortion rights and compensating the victims of reproductive loss and argues for a post-Dobbs reassessment of the law. Hi, Alyssa. Thanks for joining me today. Thank you so much. Happy to be here. So why don't we start by having you introduce yourself to our listeners?
SPEAKER_02:I am Alyssa Lawrence, and I am a 3L attending the University of Virginia School of Law.
SPEAKER_06:So you specifically chose to be the co-host for this episode. What was it about this author or this topic or this paper that motivated you to choose this one?
SPEAKER_02:Yes, thank you. I wanted to be a part of this episode because ever since the overruling of Roe by way of Dobbs, and maybe even before, I found it interesting in how framing can change the reception and discussion around certain topics, such as the one Jill presents to us on legal action related to pregnancy laws or the mishandling of embryos. I also found it difficult to understand how anti-abortion rhetoric can be supported while simultaneously limiting damages for reproductive loss and making judgments on whether individuals actually wanted to or were deserving enough to have children. In one instance, the fetus is a child and at another, it's not. And then with this inconsistent treatment, navigating the reproductive landscape seems to be even more difficult and it seems to leave individuals with no choice and limited recourse going throughout. So I really thought Jill's paper brought interesting perspective and considers a lot of the biases and considerations that surround this topic. And I'm definitely excited to hear more from her today. Yeah,
SPEAKER_06:I am too. And I don't know about you, but I was completely unfamiliar with the kind of blatant hypocrisy and the disparate treatment between life beginning at conception or at least within a few weeks in a number of these states and the way in which reproductive loss is treated. This was the first I had really paid attention to it or heard about it.
SPEAKER_02:Yeah, same. I thought this paper was so interesting just because this is such a highly discussed topic, reproduction as a whole, but then I'd never considered it from this lens that Jill brings up. So I thought this paper was so fascinating because, of course, this is something that's important, but we never really talk about it publicly. And so, yeah, this was my first time learning about this sort of issue.
SPEAKER_06:Yeah, me too. And I think you bring up a good point, and maybe we'll get into that in the discussion today. I do think it's hard for people to talk about reproductive loss. I mean, it's hard to talk about the loss of a child more generally, but my sense has always been that people do have some framework for discussing the loss of an infant or an older child in a way that they don't have for discussing reproductive loss. But that could just be my perception, and maybe we'll ask Jill about that. She probably has some insight on it. So what are you hoping to learn from Jill today? You've given us a little bit already, but anything else that you are hoping to take away from our discussion with her?
SPEAKER_02:Yeah, so from today's conversation, I'm Hoping to learn why jail... I chose the three factors that juries should consider when appraising reproductive loss issues and how this will look in practice. How can we control for jury bias and what are the expectations of the plaintiffs when making their claims? I think my classmates have questions on re-traumatization and male versus female experiences with loss, views, post-ops, etc. And I'm looking forward to hearing how Jill can expand on or address new issues related to that topic.
SPEAKER_06:Yeah, me too. I'm interested to find out a little bit more detail on whether she thinks it's even possible for us to really reconcile these sort of competing interests, right? Recognizing reproductive loss, while much of her point in the paper is that Dobbs provides an opportunity to sort of recontextualize or restart this discussion that's been stymied in a way. But I think there was some concern among all of our that that would be difficult to do. So we'll see. Anything else that you want to hear from her? No,
SPEAKER_02:I just think I'm really looking forward to hearing what questions my classmates have and any of her insights and just kind of digging deeper into this issue that I think we're all pretty familiar new or unfamiliar with, but that can affect many of us and our futures going down the line, depending on how we want our family landscapes to be and personal lives. So I'm just excited to hear what she has to say on this.
SPEAKER_06:Yep, me too. Okay, great. Well, thanks for doing this and let's go join the others. Thank you so much.
SPEAKER_07:Thanks for joining us today, Jill. Yeah, thank you for having me. I appreciate the invitation.
SPEAKER_06:Well, we're here to talk about your paper, co-authored with Dove Fox, Valuing Reproductive Loss, which was in the Georgetown Law Journal. I'm going to have a link to the paper in the show notes. So listeners who are interested in learning more about this topic can download and read the paper. I guess I just wanted to start by asking you where the project came from. What motivated you? What were you responding to? How did the paper come about?
SPEAKER_07:Thank you. And thank you for this. first question because it's kind of fun to think about where papers came from. And I had known Dove non-person. Actually, I've never met Dove in person now that I think about it. But we had known each other over email. As you all can probably guess from the piece or from my work generally, my third child was stillborn. I was 37 weeks pregnant. So I was Full term. And that was about seven years ago. I'm sorry for your loss. I appreciate that. But after, so after Caleb died, you know, this is kind of what I started writing about. And Dove was one of the first people that I sent out like one of my first pieces to. And he was ridiculously kind. And he was already very well known in the field on his work about embryos, embryo loss by that time. So we kind of always just remained in contact. And then, I don't know what year it was, but it was a summer, maybe 2020, that a huge verdict came out for embryo destruction in California. A couple summers ago, there was a freezer failure, both at an Ohio fertility clinic and then in a California fertility clinic within a month of each other. It was very strange. And people sued over both of those. But the verdict came out for the California and it was$15 million for, it was one couple and I think three additional women. It was a lot of money, right? And I am in no way implying that that was inappropriate for them. But what struck me is that you wouldn't see verdicts like that really for Or even stillbirth. For like very late pregnancy losses or even earlier pregnancy losses. It was just a lot of money. So Dev and I started thinking about this and talking about this. And that's what really sparked this paper is what do we do? What is the law doing for reproductive loss? And it's doing so many things that seem quite inconsistent. And of course, this was also right after Dobbs. So then you throw in that layer also of how we treat unborn life. And I'm really proud of where the paper went because, you know, the more Dobbs and I thought about this, so much of the paper also had to be about race and class. Because when you're thinking about reproductive losses, there's so many stereotypes So we're really proud of how the paper really focused so much on race and class. And then we sort of did our best to try to think about a better way to think about race and class. to value these damages. And it's not a perfect solution, but we do think it's more principled.
SPEAKER_06:Alyssa and I were chatting before you joined us this morning, and neither of us had really been aware of this dichotomy and apparent hypocrisy in the laws in a number of these states. And it was eye-opening to see the juxtaposition between the the notions of when life begins and sort of the state's interest in reproductive losses versus the interests of parents. And as you sort of say, a couple points in the paper, how can the state's interest be greater than the parents? That doesn't make sense.
SPEAKER_07:That is a thing that I think about quite often. I do not understand. I do not understand how the state interest starts at conception and is immediately very strong But when we're talking about compensating parents, and I don't have perfect labels for these parents. Not everybody would see themselves as a parent with that huge caveat. But when we're talking about the people who actually suffered the loss, the injury, the harm, well, actually, no, you don't really get a claim until after that baby was at least 24 weeks. It just doesn't really make. And that's not every state. Some are more consistent than others. But there's a lot of distinctions that don't make a lot of sense.
SPEAKER_06:Well, and so hopefully we will get into some of those as we begin our discussion. I'm going to turn it over to Alyssa now and she's really going to take it from here.
SPEAKER_02:Again, thank you, Jill, for being here with us today and for giving us that quick intro to how the paper came about. Our first couple of questions focus on big picture issues related to the relationship and the tension between abortion regulation and tort, crime, and other relevant subject matter areas. Laura will be starting things off with her first question related to the loss of abortion rights.
SPEAKER_03:Hi, Jill. So as you pointed out in your paper, The last 50 years in a row have really put a damper on talks of reproductive losses and the fear that acknowledging them as losses will imperil abortion rights. The view that you take in the article is that these two issues don't need to be in tension, especially following Dobbs. But I'm curious, do you think in practice these fears over loss of abortion rights will continue to permeate the space?
SPEAKER_07:Thank you, Laura, for that. Okay, so there's the naive part of me that kind of was like, okay, well, Roe is gone. That's, of course, bad for numerous reasons, but can we actually please just talk about pregnancy slightly more honestly now? Because a lot of pushback that you'll get and that I've gotten in earlier work has been, you know, I'll be talking about like recognizing people after pregnancy loss and what has actually happened to them. And the immediate answer back is what about abortion? Right. And, and part of me is like, okay, that's kind of Rose gone, Rose gone. And, and my entire life post jobs now has been in, in States where abortion has been illegal. Can we, can we talk now? Can we talk a little more honestly? But I don't think the answer to that is yes. That's my, that's my naivety. Sadly, I kind of think that I feel like both sides have really doubled down even more. And just a couple examples for you. Like, I mean, of course, most abortion bans these days are as of conception. Right. And it's just to me that the doubling down that this is good, this is unborn life and it's so important and it's going to turn into a living baby as of conception. That's nuts. That's nuts. I mean, it's possibly as hard as high as 70 percent of fertilized eggs will not be a living baby 10 months later. But we've we've even worsened that now because we're talking about as of conception, as if that is a person. And the abortion rights side has really doubled down. Also... I think there's more fears of fetal personhood than ever, because of course, fetal personhood, if the court were to say person in the 14th Amendment is also unborn life, that would ban, that would necessarily require abortion to be banned everywhere. And I feel like the abortion rights side is even more scared of that now. Just a couple of examples. And actually, this one is relevant to this paper. After the paper was well into editing, Florida is one of the states that has a lot of inconsistencies about how they treat abortion rights, you know, for abortion versus versus like a tort claim. And there was a bill in Florida to actually, you know, recognize it as a person for the parents who are suing for tort. And the immediate pushback was like, this is anti-choice, right? It was an immediate pushback from the abortion rights side that like, this cannot happen. And, and... I think that's an overreaction, but that's also a very understandable overreaction post-op because we're even more afraid. If I could give you one more example, too, because it was more recent. I don't know if you all follow football at all, but a Georgia football player was arrested a couple weeks ago. He allegedly hit his ex-girlfriend, who's also pregnant. And the headlines were very much, you know, he was arrested for battery and for assault of an unborn child. And again, so much of the reaction was, why are we just talking about the fetus? Well, we aren't just talking about the fetus. He was arrested for battery too, right? But the title of the crime is not battery of a person, right? It's just, that's assumed. But the title of the crime, if it's unborn life in Georgia, does accentuate unborn life. So, I mean, these are just some examples, but I feel like the abortion rights side is more afraid of fetal personhood than ever. So even though Theoretically, this could open up a space for us to have more honest conversations. Sadly, I do not think that's actually going to happen. My cynicism has now replaced my naivete, right?
SPEAKER_02:Thank you for your question, Laura, and Jill for your response. We now have a follow-up question from John Henry.
SPEAKER_05:Yeah, thank you so much. I would like to follow up because I think your response gets at how do we get there? How do we talk about your solution that you propose in the paper to both sides of the abortion debate? Because ultimately, in the final part of your paper, you argue that the recognition of reproductive loss as subjective couldn't help recontextualize abortion as well. It could also counter attempts by anti-abortion policymakers to define conception of pregnancy along objective lines. But as you said in your response just now, that both sides have doubled down. And so I'm just wondering if you were to go to folks on both sides of this issue, particularly in anti-abortion states, and propose this idea of this conception of pregnancy as subjective and to propose the tests that you come up with in the paper, how should you or how should advocates of your proposed tests, how should they straddle the line between appealing to pro-choice policymakers and their concerns and, you know, their natural tendency to see pregnancy as subjective in an individual experience? and also appeal to anti-abortion policymakers' visions of fetuses and embryos as people to kind of pass the reforms you want to see.
SPEAKER_07:Thank you for that, John. First off, I just want to answer a little bit more about this idea of what happens in pregnancy loss. And we define that in the paper as it being subjective. And that is very much borrowed from another paper that I worked on with Greer Donnelly, who's at Pitt, who's just a fantastic abortion law scholar. And we talked about how, hey, pregnancy loss doesn't necessarily have to threaten abortion rights. And the way you do that is to realize that pregnancy loss is subjective, right? Like, what is it that happened to you, right? Like, what is it that you actually experienced, a formerly pregnant person? You know, I've had an early miscarriage that I don't even really, I don't even, I was barely pregnant. I don't even know that I consider that a pregnancy loss. And then I had, you know, My six-pound baby died at the end of pregnancy. So I've had the two extremes. But it's just different for everybody. And to be honest, I always think it's a little bit comical that the state is even trying to define it. Like, can I drive this boat as far as telling you what just happened to me? So subjectivity is just this, like, It's this very common sense thing. And after Greer and I wrote that paper, we got a lot of commentary back about like, thank you for finally giving me words to sort of explain things. And that's my favorite kind of reaction to legal scholarship, right? Even though it doesn't really go in your tenure file, right? How do you do this on a broader scale, though? This is not good language for like a sign, right? For a protest or for a march, right? And in some ways, the abortion rights side, they've had very good slogans. But, you know, slogans are reductive as opposed to like what is really happening. And nothing about pregnancy is really all that reductive, if you ask me. And I think if you ask people about their lived experiences. In short, John, I think anything that's about pro-pregnancy laws, I think it has to come from pro-abortion rights legislators. And let me just tell you one example. Connecticut, a couple years ago, has... it now has the highest income tax credit that you can get after stillbirth. Okay, goodness, now that I brought this up, I have to give you some background, don't I? So your kid has to be alive, has to be born alive if you want a federal tax credit, right? Because you need a birth certificate because you need a social security number. If your kid dies two minutes before birth, you never get a birth certificate and you don't get a social security number. So you get a federal tax credit if your kid lives two minutes or two seconds, but no tax credit if your kid dies two seconds before birth. I think that's a little arbitrary, but taxes are another podcast, right? What a lot of states have done is pass a tax credit in the state. And when I say a lot, I shouldn't say a lot, it's like six or eight, but still that's a good chunk. Connecticut actually just passed the biggest one that's in the nation. Connecticut, Minnesota, these are not screaming anti-abortion states by any means. The reason that there was no issues in Connecticut passing it is because it was introduced by a known abortion rights supporter. Clearly, her intent was not in any way to threaten abortion rights. Her intent was to help people with funeral expenses and whatever else, whatever the costs of raising that child are. So I think this has to come from abortion rights advocates. you know, immediately something for pregnancy loss hits different if it comes from like Tom Cotton, my old senator in Arkansas, or if it comes from, well, Tammy Duckworth in Illinois. But they have to come from, they have to come from a, abortion rights lawmakers. And to be honest, y'all, I think something like this, if you really were to believe in subjectivity, if you really were going to have a tort system in which the formerly pregnant person was able to define what happened to them, that's actually, it's bad for abortion rights and it's bad for anti-abortion side also, right? Because we're specifically allowing a definition that's not person as of sperm, meaning egg. Right. So that means anti-abortions don't like it. Anti-abortion side doesn't like it. And you're allowing someone to say, no, I saw this as my child. Right. I should be able to recover for the wrongful death of my child, which means abortion rights doesn't really like it either. So, yeah, that's a long winded answer. But in short, I think it has to come from known abortion rights supporters, because otherwise the immediate assumption is that this is a threat to abortion rights.
SPEAKER_05:Thank you so much. I really appreciate the answer.
SPEAKER_02:Thank you, Jill, for that. And now we have a question from Cyrus.
SPEAKER_01:Your research and this conversation have kind of focused on civil cases. But as you note, even under Roe, women have been arrested for their conduct while pregnant. How might criminal prosecutions related to reproductive loss, such as those against pregnant women who use drugs, be affected by your proposed damages framework? And Just to take it a little further, what reforms might be necessary to ensure fairness and justice in cases like that?
SPEAKER_07:Cyrus, this is a fantastic question. I'm thinking a lot about criminalization at the moment. And I come at criminalization from a pregnancy loss context instead of a criminal law context. A couple of things here, though. You bring up drug use and arrests, and you're absolutely correct. That is an increasing issue. But I want to make sure everybody knows that overwhelmingly the baby is fine, right? Overwhelmingly the baby is fine even if someone uses whatever drug during pregnancy. The arrests that are happening are more on like you created an increased risk to the unborn child as opposed to you actually hurt the unborn child, right? The placenta is an amazing thing and it protects the unborn baby from so much. So most... Criminal law is not about pregnancy loss because the baby is fine. But there are a few cases that, yes, we are talking about pregnancy loss. And yes, those tend to be the ones in the headlines because the arrest is for murder or it's for manslaughter. Criminal law is a whole different animal, right? Private law, we empower that plaintiff to define what happened to her. criminal law is not, it's public law, right? And it's the state defining objectively what it meant when the fetus died, right? And that it meant that it was a person who died. At the same time, so that objective is a whole different animal and it creates issues that I don't think private law creates. Although everyone thinks it's a slippery slope, but go on. You know, at the same time, a lot of Feticide laws or like applying murder to the fetal death. A lot of that also did involve bereaved families lobbying. Right. I do think that's an important part of that story. And, you know, I don't have I don't have statistics to tell you how many states did this because it was anti-abortion motivated and how many states did it because a family was lobbying. It's probably every state is a combination of both to some extent.
UNKNOWN:Right.
SPEAKER_07:You know, I think what's important here is to maintain immunities for pregnant people. That's especially important when we're talking about drug use, because we know what happens when you threaten to arrest pregnant people for drug use. They stop getting prenatal care, right? And they stop getting prenatal care. And when you stop getting prenatal care, we have worse outcomes. I don't like those words, but Megan Boone and Ben McMullin had a great piece also in Georgetown a couple of years ago. They did an empirical study of Tennessee had three years where they had a law specifically criminalizing drug use for pregnant people. And Megan and Ben studied it and found a bunch of additional stillbirths and a bunch of additional infant deaths, right? So we need to do whatever we can to make sure people feel comfortable getting their prenatal care. You know, to me, that answer is making sure the pregnant person can't be arrested, right? And that's the same thing we do within the wrongful death laws too, Cyrus, is there's an immunity for the pregnant person. There's also an immunity in states where abortion is legal that the doctor who provides the abortion can't be sued. And if you'll let me go off for a second, like I think another huge deal for criminalization is I think we need more awareness that stillbirths happen. that pregnancy loss happens, right? Because if you're not familiar with the fact that like over 20,000 babies are still born each year, then when it does happen and that pregnant person happened to use cocaine, once you're like, ooh, that must've been because of the cocaine. Well, no, not really. This actually kind of happens a lot. I think we also need more education about the trauma that can be involved because that will affect how people react. But great question, Cyrus. I appreciate it.
SPEAKER_01:Thanks for that answer.
SPEAKER_06:Before we move on, you mentioned the prevalence of stillbirth. And I think that in the paper, you also mentioned statistics on the rate of miscarriage. Both were higher than I realized. And so I wondered if you could just say what those are. You mentioned stillbirths. You said 21,000. Is that correct?
SPEAKER_07:Yeah, it's over 20,000 a year. It's about one in 175 births. is of a stillbirth. You know, it's double that for Black women and poor women. Miscarriage is closer to like 25% of all pregnancies. So that's much, much higher.
SPEAKER_06:It's an important baseline to have, right? Which is what is the level of reproductive loss that we're talking about? It's more common, I think, than many people think. believe. Yeah.
SPEAKER_07:Yeah. I think the studies show that usually people think about 5% of pregnancies end in miscarriage.
SPEAKER_06:Yeah.
SPEAKER_07:It's quite low. Yeah. That's low. It's, you know, it's much closer to 20, 25%. Yeah.
SPEAKER_02:Thank you for your answer to Cyrus's question. And I'll clarifying the criminal context. So the next question that we have is my own. And so in your paper, you spoke to it briefly, but I would like to know more about the significance of the plaintiff being able to categorize loss as pregnancy loss versus wrongful death loss of a person. Why is this important? And would plaintiffs be likely to invoke pregnancy loss if, for example, a wrongful death framing might elicit more jury sympathy or result in a larger verdict?
SPEAKER_07:Yeah. Thank you, Alyssa. Yeah. And this is, I'm not going to lie, this is something I think about a lot. And originally, you know, pregnancy loss, if you were going to sue for it in tort, was something less, right? It was not the wrongful death of a person. And in a lot of states that finally did allow wrongful death for at least post-viability pregnancy losses, that was in court, right? So these were plaintiffs who who specifically tried to sue for wrongful death of a person to try to make the state's wrongful death statute apply to their unborn child. So this was bereaved parents wanting this. Now, Alyssa, is that because the damages will be bigger? I don't know, right? Conceivably, you would think a jury might award more damages for a wrongful death of a child than it would be for the emotional distress that's involved in pregnancy loss. You know, Dove and I certainly didn't see any demonstrably difference in the damages size depending on the type of claim. You know, and part of that I also think is because in some ways I don't really know how you separate the two, right? So Texas is one, California is another state that specifically will instruct the juries to award the emotional distress for the pregnancy loss, but not for the loss of the fetus as an individual. That's what Texas will do in med mal claims. I don't know how a jury really does that, right? Just because of what we think about pregnancy today. And, you know, and parents wanted, you know, the pregnant person wanted to be able to sue for the wrongful death of a person. And I think about this from like on a personal level too, because, you know, the idea that my kid was like my body part is quite insulting to me as if like his death was, you know, same as her hurting my arm. Of course, that's insulting. But I also don't want to lose the reality that he was in my body when he died. And, you know, you still give birth, right? The baby doesn't magically come out. So you still give birth. So I think it's really important to also realize that location. So just wrongful death of a child does not necessarily encompass you know, the reality of the birth also. You know, so I don't have an answer for this. I wish I had an answer for this. I wish I had an answer that could somehow both encapsulate within the person's body, but still wrongful death of a child. And I think everything that I've just said also mirrors so much about what we think about the abortion debate too, right? Like so much criticism that the picture of the fetus is not in any way in a womb, in a person. So yeah, but importantly, what Dev and I also found is we didn't see any dramatic distinction based on damages size in a non, like wrongful death of a person versus a wrongful death of a child case.
SPEAKER_06:Jill, just to follow up though, you didn't have all of the data that one might want in order to... Yeah.
SPEAKER_07:Oh, not by it. Yes. Thank you, Kim. It could be different. And of course, so many cases settle too. Like, so it's not, it's not even representative. I mean, what Dev and I did was do our best that we could do in the Lexis and Westlaw jury verdict database, right? We're not even going to pretend that that was an actual good empirical search, but we did the best. We don't have great data. We don't have great data. Yeah. But of the limited data that we could find, which was also sort of the best data we could find, there was not a dramatic distinction. I
SPEAKER_06:think I was referring less to the data set that you were able to get from Westlaw and the variables that you would want to control for to know whether there's a real distinction between the two.
SPEAKER_07:And I will be the first to tell you to admit that as far as doing empirical studies, I am so not the expert on the best way to call these things, right? Yeah.
SPEAKER_02:So yes. Thank you for your answer in trying to provide kind of more insight onto the framework in the two categories. So now we're going to be switching gears in the next set of questions. We have deals with the topics of subjectivity, bias, and your proposed test versus existing standards. We'll be starting off with Nia, who is asking about relived trauma.
SPEAKER_11:Good morning, Jill, and thank you for coming and having this vulnerable conversation with us. My question relates to relived trauma, and it is, it seems that in the case you cite, especially in the case of stillbirth and wrongful abortions, the harm is evident. Do you think that some type of strict liability or res ipsa locator in these cases as an alternative to the freedom to define loss approach you suggest could be useful in minimizing the continued traumas mothers may experience by recounting their stories to the court in these cases?
SPEAKER_07:Thank you for this, Nia. And thank you for bringing up such fun tort concepts that I'm teaching right now this semester also. You know, I, this is another area that I'll be honest, Nia, I've never looked into the research about relived trauma with respect to pregnancy loss, right? You know, and, and, and personally, I don't have trauma every time I talk about what happened. So, but that's, but I didn't, but I don't have anyone to blame for So maybe if you have someone to blame, that's a whole different scenario. I have certainly talked to people who want to sue and have someone to blame after their kid is stillborn. And usually they kind of want to sue because they want to make sure that this isn't going to happen again. This is a really long-winded way, Nia, of saying that I very much could be corrected. But on a personal level, the trauma of reliving... You know, people like, oh, we don't want to bring up that your kid died because we don't want to remind you. I promise I haven't forgotten, right? It's one of those like grief things that always kind of cracks me up. Like, oh, I didn't mean to bring it up. So I don't necessarily buy that it's traumatic necessarily to bring this up in a lawsuit, but that could just be my very uneducated version of that. You know, I... I will say I don't like sort of the race upset or the strict liability. I don't like the idea of like a presumed injury, right? That this is like we presume, oh, you had a pregnancy loss. We presume an injury. I don't think reproductive loss works like that. And I do think that would have sort of dangerous implications for abortion rights, right? If we're presuming for sure everyone who this happens to has an injury. But again, I could be corrected if I learned more about sort of relived trauma in this context. But again, I will say I don't like a presumed injury either.
SPEAKER_02:Thank you for that question, Nia and Jill, for your answer. We'll be passing things on to Lauren with a question on different manifestations of grief and resultant jury interpretations.
SPEAKER_04:Hi, Jill. Thank you so much for being here with us. I'd like to follow up a little bit on Alyssa's question about how the framing elicits, you know, different attitudes from the jury and Nia's question about that relived trauma, because everything seems so subjective, as you've mentioned. And so, you know, some of those measures that we use to evaluate the meaning of the unborn child, like self-identification of the value or evidence about life activities are still really pretty abstract. But the cases that you referenced, The judges and juries really seem to have set perceptions on what value should be attributed to a pregnancy and a pregnancy loss. So how do you prevent judges or juries from bringing in those biases and how do you prevent them from evaluating that evidence based on what they would attribute to that pregnancy or pregnancy loss or what they feel is the proper way to grieve or the proper value of that pregnancy or pregnancy loss?
SPEAKER_07:Yeah, thank you for this, Lauren. You know, at first, I just want to also pause for a second because when we're thinking about like the proper value or sort of, you know, how to properly manifest grief and honestly how to properly have grief, right? Because it is proper to have grief now. We also need to be realistic sort of where this came from. And I think part of where this came from, again, is just is abortion. You know, once abortion was more readily available, well, it was legal and I guess more readily available, a lot of unwanted pregnancies then ended in abortion, right? And then the pregnancy losses overwhelmingly happened in the desired pregnancies. And Laura Friedenfels has a wonderful book called The Myth of the Perfect Pregnancy that discusses a lot of this. And then since then, so we have this sort of general thing that now happens that most pregnancy losses happen in desired pregnancy. And then you add in sort of anti-abortion rhetoric that we've gotten for decades, that this is a baby as of conception. So a pregnancy loss is not a pregnancy loss, it's the death of a baby. So we've sort of been taught to grieve. And then we also, anti-abortion rhetoric reinforces that we're supposed to grieve. It affirms that you're supposed to grieve. So, you know, some of this proper value is not necessarily naturally, hasn't naturally happened. You know, you talk about proper value, and I think what Dove and I are most concerned about in this paper also is the people who don't fit the mold of what that proper value is, right? And we're worried about judges and juries. We're worried about juries. undervaluing someone who doesn't fit that mode, who doesn't fit that proper valuation. Ray Hoffman Jagger, her baby was still born, I think, about 32 weeks. And she had this beautiful essay afterwards. She is Jewish, and I'm not as familiar with this, but she explained that in her culture, you don't celebrate something before it happens. So there was no nursery, there was no name picked out. And, you know, she would sort of look abstractly like this really wasn't a big deal. But of course, this was still a big deal for her. She has this beautiful essay about how she worked through this. So my worry about, in step one of the damages, is people who don't fit the mold. And how do we do our best to realize that different cultures affect how people react to these things, how we've been told to react to these things affect how we react to these things. And And step one is really about what is this like for the person, right? So even if they don't have that proper grief, they may still just have the exact amount of grief, but it's just not as visible. And then in step two is what we do with the damages is think about more realistically, well, was this actually going to turn into a living baby? I hope that answers.
SPEAKER_02:Yeah, thank you so much. Thank you, Lauren, for your question and Jill for your answer. I'm going to pass things off to Alyssa, who is asking about the role of biases in the first part of your three-part structure.
SPEAKER_10:Good morning, Jill. Thank you so much for being here. As Alyssa said, my question also relates to the three-part test. And so specifically, I'm wondering, in your three-part test, the first part that you articulated is that the jury should assess how much a live-born child would have been worth to the plaintiff. And so my question is, if Juries rely on their own biases on class, on race, on color, on stereotypes, and who they think is either good or deserving to be a parent. And that ultimately drives their decision. How would the first part of the test work to combat those disparities and damages? Because I know for me, I was thinking it through and it seems as if juries are still going to end up policing who they believe is good and who they believe is bad and deserving and not deserving and what the norm or the behavior that is expected of a parent is.
SPEAKER_07:Thank you, Alyssa. Yes, you're absolutely right. And this works in well with the last question also. Yes, step one absolutely has a risk of bias, right? Has a risk of jurors relying on their biases as far as like, oh, you didn't really want the baby, you already have six or, oh, you didn't buy organic, whatever baby supply thing you could get organic these days, which is probably all of them, let's be honest. So step one does have the risk of bias. A couple of things here, though, is, you know, when Dove and I were first thinking was like, oh, should we have like a hard number for step one instead of allowing the jury to just decide what the plaintiff's actual injury was? And we decided against that, you know, and there is something very uncomfortable to me, at least, about like objectively defining, oh, a new baby is worth a million dollars. Right. And I didn't want well, and we didn't want, I should say, that that tort law doesn't do that. Tort law doesn't objectively define like, oh, a broken arm is worth$500. And I didn't want the one place we would do that to be reproductive loss, right? That was very uncomfortable. So we don't have perfect answers for how to minimize the biases in step one. I think one thing is simply just more diversity on juries is needed. And the second thing is to not pretend that the biases aren't there, right? So Very crassly, like the plaintiff's attorney might be like, asking the plaintiff, why did you need a seventh kid? You already have six. It's a super awkward question, but let's get it out there. Let the plaintiff also answer that, right? Why didn't you get prenatal care? What? Well, I tried. I filled out all the forms to get on Medicaid in Texas, and I got rejected for this reason. But let's just try to approach those things head on, as opposed to just letting the jury sort of stew on their own biases to answer those questions. And I will say, you know, step two of our damages is about reducing the likelihood that that was actually going to be a living baby. And we specifically there don't allow any reduction based on essentially obstetrical racism and classism, which is explaining why the stillbirth numbers and the late miscarriage numbers are double the risk for Black women and for women with lesser income. So we can more structurally affect those biases in the second step.
SPEAKER_06:Jill, can you, for—I don't do tort law and therefore have no idea what to compare— your discussion of reproductive loss, too, in terms of the death of an infant or older child and the way that the court might approach that and the opportunity for bias to seep in. Is it possible to do a dummy's guide very quickly?
SPEAKER_07:I mean, the possibility of bias, unfortunately, I think is part of everything. Right. And you and I, Alyssa, could have the exact same broken arm, but have very different harms. Right. Maybe you have something pre-existing in your arm that makes this even bigger, bigger, bigger, bigger. You know, maybe we have different jobs such that the arm isn't messing with my ability to do my job. So I have more lost wages. Like we don't objectively define what that lost arm is, the broken arm is worth. And I think anytime you, well, so anytime you're going to have variation in possible injury determinations and like damage determinations, you risk bias there. right? You risk bias. And I think the best example that we've actually seen this for sure in tort law and we can see is when you're doing like lost income, right? Lost income for white men, those damages have been much bigger than lost income for women and especially women of color.
SPEAKER_06:And what about subjective losses? I
SPEAKER_07:mean, when I say subjective loss, all I really mean is just the loss that the person experienced, right? So like, me defining what happened to me. So I think kind of every harm in tort law is subjective because it's the plaintiff explaining, like, it could be my arm is broken, my arm hurts still, you know, my leg has this dull pain forever now. So subjective is like, I guess, a fancy word, but it's just the harm that the plaintiff suffered. And that's what the damages are supposed to be tailored to. Like, damages in tort shouldn't match, right? They shouldn't match if the juries are doing correctly what they're supposed to be doing.
SPEAKER_06:I guess my question was when we're talking about, say, a wrongful death suit, right, and we are dealing with subjective loss of this sort. I would think some of the same concerns about relived trauma, about the different ways that people express grief, about different biases, again, leaving aside, quote, unquote, objective measures like lost earnings and that type of thing, that this issue comes up there as well. And I'm wondering whether we have different ways of dealing with it there. I think my question was, how does it compare?
SPEAKER_07:Tort law is very behind it. as far as thinking about how biases might creep into damage awards. The only place that tort law, certainly, yes, biases could creep into damages for wrongful death of living children, of anybody. But we, and I think there's something in the paper to the extent on this, it's criminal law, we've done much better As far as how much biases might be affecting, you know, people, juries finding people guilty and not guilty. It's just much harder in tort law because you already have so much variation in damage awards.
SPEAKER_02:Thank you so much for that. So our next question comes from Tanner, who is asking about how laws for male parents fits into the three-step framework.
SPEAKER_00:Hi, Jill. Yeah, my question is very much in the same vein as Alyssa Marshall's, but for the subjective injury of male parents. particularly the first step of subjective loss and even step three with the accompanying trauma. I was wondering how those play in and also such injuries may be subsumed by those of the female parent when talking about it in court.
SPEAKER_07:Fantastic question, Tanner. Not something we addressed explicitly in the paper. There's a bigger issue lurking here that if there's no wrongful death claim, the dad doesn't really have a claim. Wrongful death is a parent's claim. Both parents have it. If the state limits this just for recovering injury for your pregnancy loss, the dad's going to have a lot of trouble recovering any damages. That's another thing that sparked this entire paper is one of the people who recovered a lot of damages in the California Fertility Clinic was the man, the one who provided the sperm. And California has law that makes it specifically very difficult for the father to recover in a stillbirth plane, right? Our newer framework, our more principled framework would be much better for dads, right? Right. It wouldn't be, you know, the step one could easily apply to dad. What was the dad's sort of experience of what actually happened to him? Was it just the pregnancy that was lost? Did he consider this his child who died? So we could do that with a dad just as easily. You are correct for some of the things we talk about in step three about increasing damages. increasing damages for trauma. Some of that is more of the pregnant person as far as like birthing the actual dead baby. But your question makes a big point that we didn't explicitly make in the paper that without at least wrongful death being an option, the dad has a lot of problems bringing a claim very often. I think that also reflects a lot of gendered stereotypes about dads and parenting too.
SPEAKER_02:Thank you. I appreciate hearing your view on that and how reproductive loss as it applies to men fits into your framework. As you mentioned, I do think it's a view that can be like loss together, like in parenting and reproduction as a whole. So I appreciate that. We will now be moving on to Kimberly and her question on the increased risk of loss with IVF pregnancies.
SPEAKER_12:Good morning, Jill. Thank you so much for joining us today. My question is in regard to IVF pregnancies and the fact that they face double or triple the risk of stillbirth. I'm curious to know whether courts are taking this increased risk into consideration when weighing reproductive loss in stillbirth cases, assuming that doctors are informing patients of this heightened risk prior to the procedure as a fair warning. Would this play a role in calculating damages?
SPEAKER_07:Thank you, Kimberly. Oh, this is one I could talk about for a while, but I'll try to condense my answer here. You know, we all kind of think IVF is just this perfect thing that works perfectly every time. First off, people don't actually get pregnant nearly as much as we think with IVF. And then IVF does create this heightened double to triple the risk for stillbirths. What this would actually look like tort-wise is a plaintiff who uses IVF to get pregnant, and then maybe we have a doctor who commits med mal at the end and doesn't prevent the stillbirth, right? So... So yes, with our framework for subsection two, there would be some consideration of like, well, there actually was this increased risk of stillbirth because of IVF. One thing that I have to comment here on though, because I can't help myself, you know, do, well, a couple of things, you know, even with the heightened risk of stillbirth, do realize the risk of stillbirth is quite low still, right? We're talking one in 175, even if you triple that, that is still quite a low risk, right? The thing that I recently discovered is that doctors have ACOG, so American College of Obstetricians and Gynecologists, and also SFM, the Society for Maternal Fetal Specialists. I think I got all those acronyms correct. They now have increased care towards the end of pregnancy because of the increased stillbirth risk, right? So there will be more ultrasounds and there will be more heightened prenatal care if the because of the heightened risk of stillbirth because of IBS. The thing that kills me, though, is that the guidelines also acknowledge that the risk of stillbirth is similarly double for Black women, but the guidelines do not advise for extra heightened prenatal care because of that double risk for Black women. It's very problematic. It's very problematic. And a long way of saying that, also, Kimberly, that's relevant to your question, is that if the pregnancy starts with IVF, there's going to be more medical care. So even though the risk of stillbirth has increased, the care will increase. So hopefully that stillbirth also won't happen.
SPEAKER_02:Thank you so much, Jill. Thank you for that answer, Jill. And I'll now be handing things over to Alexa, who has a question on how the scenario of misimplanted embryos works within step one of the framework.
SPEAKER_09:Thank you for being here, Jill. In your section on distinctive trauma, you discussed the somewhere-out-there scenario, where one couple's embryo is misimplanted into another potentially unknown fertility patient. You bring this in at step three, distinctive trauma, but I'm interested in how that fact pattern plays out in step one. Given the possibility that the child could be born to another set of parents, how might a jury interpret this type of trauma? Could the couple pursue a wrongful death claim even though the embryo may still develop? Or would this necessarily fall under pregnancy laws, regardless of the subjective feelings of the wronged party? Alternatively, might this be framed as a property issue?
SPEAKER_07:Thank you, Alexa. And you pointed out something in this question that I did somehow miss a little bit in our paper, so I appreciate that. But the somewhere out there scenario, right? So we have a fertility clinic that negligently puts the embryo in somebody else that might end up with a baby for somebody else. Maybe not, right? Because IVF doesn't always work, but it could. And that's not a wrongful death scenario. You're absolutely right. It's not a wrongful death scenario because it's not... Well, first off, we don't know for sure even that that embryo did die and not turn into a person. But I think you can be deprived of that child's that you wanted, even though the kid is alive elsewhere, right? Because practically speaking, those parents are deprived, even though the kid is elsewhere. I mean, what would just be different there is you don't sue for wrongful death, you just sue for negligence against the IBF clinic, really no different than when you're suing the IBF clinic because they didn't have sufficient, because they didn't have like sufficient warnings of the freezer going, you know, the freezer not working anymore, right? It's essentially, embryo destruction still to me, but it's via implantation in the wrong person. But you're right, not wrongful death.
SPEAKER_02:Thank you, Alexa, for that question and Jill for your response. Last but not least, we have a question from Liv.
SPEAKER_08:Hi, Jill. Thanks so much again for joining us today. So my question is a little more focused on a very specific aspect of the paper. I was looking at Table 2 and I was really interested because there you lay out basically the majority and minority rules for fetus previability and postviability as either being limited to emotional distress or to a lost relationship. So could you talk more about how large those majorities and minorities are in these cases? And if it is currently close, pretty evenly split, might we see some shift or convergence in the coming years with how those awards are being determined?
SPEAKER_07:Thank you, Liv, for this also. Yeah. And I appreciated looking back at these tables more specifically. I don't think these are very close. Okay. Embryos, everybody still treats embryos just as property, except for the Alabama Supreme Court, which I should probably talk about for a like about 42 states apply wrongful death to fetal death now. It is a much more sizable majority, a much bigger chunk that only does that post viability. So that's like 26-ish based on sort of my rough estimates yesterday versus like 16 that do this for all pregnancy losses. Do I see much movement? Well, no, because of abortion, to be honest. We saw the Alabama Supreme Court. I can't remember, was that last spring? We saw the Alabama Supreme Court and what they did with embryos with wrongful death. And I know that the headlines were a lot, but what the Alabama Supreme Court did made a lot of sense for the Alabama Supreme Court. I don't know if that actually makes it better. And the reason I say that is because the Alabama Supreme Court had already applied wrongful death law to all pregnancy losses. It did it by the court, right? That's the only court that has done that. Usually that has to come from the legislature. So the Alabama Supreme Court just said, well, if we apply this to an embryo that's in the uterus, why wouldn't we also apply it to an embryo that's in the freezer? It was quite a logical decision. move for the Alabama Supreme Court. To me, the biggest problem, well, I mean, besides the use of the words extra uterine children, the biggest problem with the opinion was that the complete overestimation that any individual embryo would ever actually be a living baby, right? There's a couple steps in there. And we also saw exactly what happened as soon as the Alabama Supreme Court did this, is that even the Alabama legislature said, actually, no, we're not going to apply wrongful death laws to IVF clinics. So, I mean, and maybe that's a movement a lot of us wouldn't want anyways to apply wrongful death law to frozen embryos. But, you know, I don't see a lot of movement as far as wrongful death generally happening. I think the couple states that don't apply for wrongful death are like California, Florida, New York. Do I see them moving anytime soon? No. Actually, Florida had a bill to move just this past spring, and it was quickly dismissed as being too anti-abortion rights. It is kind of fun, though, to think about when all these things happen, because there were some courts that applied wrongful death to pregnancy loss post-viability long before Roe. So this was happening. Right. Then, of course, Roe happened and viability made sense to everybody to do for wrongful death also. And then some states, I do think it was an anti-abortion thing that they applied wrongful death to all pregnancies. But that was usually legislatures, except for the Alabama Supreme Court. In the long winded way, Liv, do I see much movement anytime soon? No, I think we are still stuck in this stalemate about abortion rights. We've been here a long time. that we're going to be out of it anytime
SPEAKER_06:soon. You know, Jill, just your last answer there, it occurred to me, it added a context to your paper. I mean, what I took from the paper, of course, is that we're sort of in this tension, right? This stalemate, as you just called it, between sort of recognizing reproductive loss and protecting abortion rights. But it also sounds like that tension is has always infected, for a long time, even pre-Roe, right, infected the laws that we do have, right? So in some ways, it sounds like more than a stalemate, there's also like a path dependency that has kind of infected the law that sounds like it goes back some time.
SPEAKER_07:Yeah, yes, I think that's true. You know, I don't think, you know, I think those states that applied wrongful death before pro were, I don't think they were trying to attack, you know, abortion rights by any means. The stuff has just become intertwined. You know, yes, there's a stalemate, but I go back to Connecticut, right? I mentioned their income tax credit before, and I didn't mention this detail. The day that their income tax credit for stillbirth became affected was the exact same day that their abortion provider shield law post-OBs became effective. Connecticut was the first state in the nation to pass additional protections for doctors providing abortion care in Connecticut. The same day those two things came out. They can coexist, right? We can recognize people's real reproductive losses and try to help them and still protect That is a great
SPEAKER_06:concluding spot, I think. Alyssa, anything that you want to add as a last parting?
SPEAKER_02:Not much, but I just want to say thank you again, Jill, for being here with us and having this discussion. It's been great to hear from you and hear more about your paper, Valuing Reproductive Loss, co-authored by Dove Fox and yourself. And so thank you for being here and allowing us to dive a little deeper on some of the issues raised by my classmates.
SPEAKER_07:Thank you. This is such a cool class, too. I've seen Kim post about the podcast in this class before, so I think I've always admired it from afar, and now I got to do it, and I appreciate that.
SPEAKER_06:That's great. Well, I'm really glad that you could join us. It was fun, and it was great to quote-unquote meet you in person in what passes for human interaction these days.
