There's A Word for That!
There's A Word for That!
FETAL PERSONHOOD | Scott Ruskay-Kidd
This episode is particularly important. We are in a time where women’s rights over their bodily autonomy are being threatened and denied. Scott Ruskay-Kidd is an expert on fetal personhood law and debates and joins us to discuss the history and relevance of the term “fetal personhood” in today’s society.
We hope you gain as much from this episode as we did. We understand this may be a sensitive issue for many people; we ask that you listen with an open mind.
About Scott Ruskay-Kidd:
Scott Ruskay-Kidd is a Lecturer-in-Law at Columbia Law School, where he teaches about gender and sexuality law, among other things. Scott previously was a Senior Attorney for Judicial Strategy at the Center for Reproductive Rights, where he led the amicus brief strategy in the last successful defense of the constitutional right to abortion in the U.S. Supreme Court.
Beforehand, Scott practiced commercial litigation at Kramer Levin LLP and Debevoise & Plimpton LLP. Scott began his career as a judicial clerk in the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit. Scott is a graduate of Harvard College and Columbia Law School.
About the Show:
There’s a Word For That! is a weekly podcast that centers around a different word or expression each episode. Host Suzanne Dressler believes in pushing the envelope to explore why and how we use words and the ways this impacts our lives. With a diverse assortment of intelligent, creative, and exciting guests, TAWFT! will force you to analyze and consider words in an entirely original and eye-opening way. Even better? NOTHING is off-limits.
Where to Find Me:
Note: We use AI transcription so there may be some inaccuracies
Suzanne Dressler: Scott Ruskay-Kidd, thank you for coming on the podcast. Let me just tell a little background about who you are. So Scott is a lecturer in law at Columbia Law School where he teaches about gender and sexuality law, among other things. Scott previously was a senior attorney for judicial strategy at the center.
For reproductive rights where he led the amicus brief strategy in the last successful defense of the constitutional right to abortion in the US Supreme Court. Scott is a graduate of Harvard College and Columbia Law School. Thank you so much, Scott, for agreeing to come on the podcast to talk about fetal personhood.
This is a treat, Suzanne? Yes. Yeah. Thank you so much for having me. Yeah, of course. So tell me about the history. I know you said it goes way, way back. The history of fetal personhood.
Scott Ruskay-Kidd: Oh my goodness. The history of fetal personhood. Well, the first thing that many people don't know, and that got kind of obscured when the Supreme Court started talking about history in its job decision, a few years ago.
Is that the concern, the views about fetal personhood that you hear? These days are relatively new. when our nation was founded, people could end their pregnancies. the, the common view was that prior to quickening, the first perception of fetal movement, typically during the fourth or fifth month of pregnancy, a woman had the legal right to end her pregnancy.
It would take hundreds of pages to set forth the citations for this. all of the famous commentators, sir William Blackstone, Edward Koch, Black's Law Dictionary from the 17, 18 hundreds, all of these sources said life begins not at conception, but at quickening and, People had abortions for, you know, when our nation was founded for all of the, concern you sometimes hear on the right about, originalism and doing it the way they did it back then.
It is a, often misunderstood fact that, as one court put it in 1849, there is no precedent, no authority. for treating life as existing before a fetus is quickened. wow. Abortion was a known part of reproductive life from the 1850s to the 19. know, up until the pre-Roe era, it's estimated about 20% of pregnancies ended in abortion.
There was a crusade in the Victoria Victorian era, to take a different view, and that crusade was led by folks who had, strong views about the role of women, in society and in the family. the crusaders views was, quote, the wife has the moral and legal right to become a mother as often as possible, the end for which women are physiologically constituted and for which they're destined by nature.
it was, really a Victorian era crusade, rooted in nativism, and not a small bit of sexism and also racism, which led to, the first. Changes of view, in the late 18 hundreds. a lot of people don't know this. I think that the modern emanations are also linked to some of those stereotypes and views about the role of women.
When people talk about, fetal personhood, they're not just talking about the fetus. They are profoundly talking about. Women and liberty inequality for, the people who are born and alive.
Suzanne Dressler: Yeah. I had no idea any of that, that you just said. That's kind of mind boggling that it used to be until the quickening quote unquote, that it was considered.
Okay. when did it start to shift? That. ' cause I know right now, like we've studied in class about we've had people come and speak about the criminalization of abortion and how women are now being like monitored or certain states wanna monitor women really closely when they're pregnant and they wanna give the fetus just as.
Much right to life as the mother. So then it becomes who has more rights. Right? that's the issue that I find so troubling I've done some research that some of these states really wanna give a fetus full personhood rights. So then who's right is more important? The woman who's carrying the child or the fetus.
Scott Ruskay-Kidd: Well, that, is the fundamental issue. the definition of the personhood movement is that fertilized eggs, embryos, and fetuses should be treated as full persons under the law with rights equal to, and in some cases superior to the rights of women.
Suzanne Dressler: What makes them think that they should be superior? What would be a law, I don't know if you know this, but what would make the fetus superior to the rights of the woman, so to speak?
Scott Ruskay-Kidd: in situations where a pregnant person's health or life is at stake, and the, fetal or embryonic life is also at stake, there is a question who decides
Woman or the state? And if the answer is the state decides, in favor of the fetus or the embryo, that means there's a position of superiority. one thing I, which I also wanna point out, you know, relatively early on here, is that the common phrase used for this movement is fetal personhood.
But that's not exactly accurate that The personhood movement seeks to establish that from conception.
Suzanne Dressler: Right.
Scott Ruskay-Kidd: Okay. Okay. There is a person there. okay. they ascribe personhood to all prenatal stages. when you're looking at a sperm, which has just met the egg, it's a zygote.
Then after five days, it's a blast assist and half of the cells, you know. Become the placenta. I mean, the human reproductive system is quite complicated for a long time. It's happening at a microscopic level. the images we have when we hear the word fetus, or baby or unborn, they conjure up.
something that looks like a full blown person. Most abortions are done, when there is really nothing visible to the human eye. the fetal personhood movement, might better be called the prenatal, personhood movement, or maybe, I don't know, the Cellular Personhood movement. The microscopic personhood movement.
it's not just personhood for. Fetuses who are nine months minus a day to be born, and some of the more acute, and bizarre, questions come up when you start thinking about. And taking seriously the claims about life from the moment of conception. project 2025, its manifesto, seeks to go after, forms of birth control.
The morning after pill and IVF and there's a very long list of consequences which date to the very earliest moments of pregnancy I think Americans have. generally most Americans have different views about conception, plus a day and nine months. Minus a day and the fetal personhood movement doesn't take seriously, the complexity and the nuance of how most Americans look at these types of issues.
Suzanne Dressler: That's really sad. but that's interesting that you said that. It's not about fetal personhood, it's really about just personhood that from the moment of conception then. Is what they're really trying. Yeah.
Scott Ruskay-Kidd: when you look at Project 2025 and its remarks on emergency contraception and birth control, and IVF, you're really not talking about fetuses.
Suzanne Dressler: So what is their talking about zygotes, you're talking about brry, you're talking about things that the naked eye cannot see that, are at a very different stage of development.
Do you see that ever happen? Like do you see it in your legal. Expertise ever becoming a real issue where birth control will be hard?
I mean, I know we're seeing things getting harder and harder, but there's so much clickbait on the internet and that sometimes I don't even know what news is accurate anymore. So I would love your opinion as an expert if you think that these things are gonna come down the pike and that it is gonna get harder and harder for women to get birth control.
Scott Ruskay-Kidd: it is difficult to predict. the Trump administration has been more focused on immigration and other issues than on abortion and, other issues relating to reproductive health. During the last couple of months, I think to some degree, the Trump administration. Went further than the American public, wanted when candidate Trump promise to appoint justices to overrule Roe versus Wade, it's like the dog that finally, chased.
The automobile and latched itself onto the bumper. it caught the thing it was chasing. They got the overruling of Roe versus Wade. Now there's not necessarily political dividends to be gained for the Republican party in continuing, ah, to chase this issue. So the Trump administration has been relatively quiet.
during the last couple of months. It has been really focusing on. Other issues relating to gender and sexuality, especially related to transgender people. It's been focusing on immigration. so it is hard to tell for sure. We do know that the project 2025 folks, and many of them are in the administration, know, has stated explicitly in writing what their intentions and hopes are.
the one thing that I might mention that brings, you know, connects the sort of the letter, the little known history I talked about in the present together is the number one, wish of project 2025 is to revitalize the Comstock Act from the 1870s. have you heard, do you know of the Comstock Act?
Suzanne Dressler: I. Do. I knew what it was about two weeks ago, and my brain is such mush from finals that if you could please refresh me. I know. I knew what it was at one point.
Scott Ruskay-Kidd: So Anthony Comstock was, a fellow with the who he ended up, I think going after Margaret Sanger, among other things. you know, the birth control.
Yeah. he was the founder of, a Society for Suppression of Vice, and the first federal law. targeting abortion in 1873 was named after him. his society's motto, it was an emblem with a picture of a man in a top hat burning books that was without irony, was the emblem of Anthony Comstock's Society for Suppression of Vice.
the Comstock law passed in 1873, targeted, Contraception and pornography, any immoral matters sent through the mails. and anything related to abortion. And the Comstock law then became a kind of zombie law. It was on the books, but because of the 1970s constitutional rulings by the Supreme Court, it was unenforceable.
but it's still there on the books. And Project 2025, if you. Open up page 800 and whatever, or 500, whatever you or you will find, please reinforce the comp stock law as wishlist item number one. that is now, the federal government has not yet done that. if they did it, to the extent the project 2025 wishes for it would mean a federal ban on all abortion care.
Period. in blue states, in red states across the nation. I wake up each day, go through my weeks and months sort of waiting for this shoe to drop. What will the Trump administration do with, the comm style law? is the, you know, one of the questions on the top of my mind and on the minds of, other sort of advocates and, law professors.
I've spoken to.
Suzanne Dressler: That's terrifying. And we don't know.
Scott Ruskay-Kidd: We don't know. We're waiting.
Suzanne Dressler: in the Comstock law, are there exceptions made for if the baby's going to die? If the baby won't survive outside the womb, if
Scott Ruskay-Kidd: no
Suzanne Dressler: having birth will kill the mother? So there's none, none of that?
Scott Ruskay-Kidd: That is correct. the Comstock law, what it specifically does is it prohibits the use of the males. For things related to, and then it's got its list of immoral things, contraception and abortion and so on. that would mean that technically the Comstock law would permit a coat hanger, but it would prevent a self-induced abortion.
but it would not permit, abortion care, medical care, any abortion provider. the modern age has equipment, has information, has, the way that they do their job, realistically in this day and age, involves the transportation of goods and services across state lines. so I guess theoretically you could have.
A hundred percent. local maybe. if you could conceivably get all of the equipment, you know, handmade, within your, five block radius and you didn't transport any of it, you could have some degree of abortion care. But it, it's a way of shutting down, sort of the modern practice of medicine around abortion care because it targets use of the males.
Suzanne Dressler: And without exception, there is no, and you could transport, equipment used in abortion through the males comma, if for purposes of saving the life of the pregnant person. There's no exception like that ruling into the law.
So it's very extreme and very black and white.
Scott Ruskay-Kidd: Well, uh. Yes and no to be clear, courts, congress, commentators, have said for, a very long time, including before the Trump administration, the Biden administration had taken the position that the Comstock law, is not meant to target legal abortion, which would mean abortion and blue states could continue.
The views of the project 2025 folks are that the statute targets all abortion.
Suzanne Dressler: This is so hard, unlike that. But beyond abortion, there's, I mean, there's a whole bunch of things that flow from, prenatal fetal cellular personhood. Apart from abortion, it chills medical care, for all sorts of pregnancy related conditions. miscarriage, this personhood movement leads to, has led to, criminal prosecution of pregnant persons, as I think you alluded to earlier.
Scott Ruskay-Kidd: Mm-hmm. child abuse negligence. and there's heavily, sort of. Racialized enforcement of those, types of laws. you can also end up with sort of absurd questions. how many persons are allowed in a room under a municipal building code? do you take a tax deduction? for how many people in your household?
if two people die and they have no surviving children, but they've do an IVF and there's a frozen embryo around, does the embryo, Inherit the estate. one of the things I dealt with early in my career was, the defensive marriage act of the 1990s, which with the stroke of a pen, specified that marriage, shall mean man and woman and,
one of the things that was remarkable about that was there were thousands and thousands of places in the statute books that used the word marriage. And when people started mucking around with that, the consequences of what it meant for people's rights were so much broader than people ever imagined because.
The definition of a word that comes up thousands of times in the law books just leads to, unforeseeable consequences. Oh my gosh. The word person. All the more. So, it would take a lot of. Think to list all of the places the word person is used and all of the strange and absurd and, distressing permutations, consequences, of treating cellular life as a full person.
Suzanne Dressler: it seems when I read about it and like listening to some of the. Facts that you've stated and, the history of it, it seems so absurd. You are like, oh, that's it. That's, it's like when Trump was running the first time and people are like, oh, he is never gonna win Trump.
Like, that's absurd. And that's, how it sounds to me, like the Comstat Act sounds so absurd that my initial instinct is to think that will never happen. That's too extreme. That could never happen. But we know that it could happen. And do you think that it's something that, so you are saying, if I understand you correctly and tell me if I'm wrong, it's really you're just sort of waiting and seeing like experts don't really know what's gonna happen.
Scott Ruskay-Kidd: the phrase, surely that can't happen here, ceased to be a good guide to prediction and behavior some time ago. hard to know where the bottom is. One thing that I know for certain is that the talk about personhood, the talk about natal wisdom, the emphasis
on motherhood. there's something happening in this culture with respect to women's roles, women's dignity, women's equality, that, regardless of what specific, hopefully not punitive or absurd consequence, gets enacted into law. And when. This talk is profoundly connected to a politics and culture, which devalues women.
I don't think that this is just, capable of being talked about in the abstract, in a vacuum as. Pro-life or pro fetal personhood, or what's the status of these cells or whatnot? I think there is something to what this movement thinks about mothers and about women, that's profoundly important and I don't think it's coincidence that,
the thing that sticks out most from the presidential campaign of 2016 to me is the phrase, grab 'em by the pussy. You can do anything.
Suzanne Dressler: We still got nominated and elected
Scott Ruskay-Kidd: and not just nominal elected, but there is of course a literal way in which, then candidate Trump.
Meant those words when he used them. But there's also a profound metaphoric, symbolic truth about what those words mean when it comes to the treatment, the juridical status, the cultural status. Um. the politics of gender equality. when we seize upon the body, when we seize upon women's reproductive capacity, when we make a small number of cells way more heavily than the interests of the woman, that crude phrase really captures
the theme of what's being restructured, what's being done, and how, and why, what language, what aspects of, a woman's existence are being leveraged and mobilized, to change culture around sex, gender equality.
Suzanne Dressler: There's a lot of sexism at the basis and a lot of hatred towards women.
Scott Ruskay-Kidd: It's not coincidental.
Suzanne Dressler: Right, right. Oh my gosh. Actually, you know what, because we only have like five more minutes. Yeah. I would want you to choose what you, if there's a question I haven't asked that you think is very important and valuable, I would love for you to talk about something that I haven't brought up relating to this.
It could be anything relating to abortion and reproductive rights.
Scott Ruskay-Kidd: I wanna give two things and I'll try to be brief with both and, it's hard to be brief with both. first
I think authoritarianism is the elephants in every room. In addition to the connections between fetal personhood, prenatal personhood, and gender equality, I think there's profound connections between how societies teach lessons in power with respect to sex and gender equality, and how societies structure.
Power more broadly. When you look at authoritarian regimes, they commonly come to power whipping up
prejudice with respect to women and gender minorities. when I'm concerned about gender equality, I am also always these days concerned about. The relationship between sexism, gender equality, and broader currents, with respect to how power and dignity are being treated in our society. So there's a whole lot more to say about that, but I don't think this is just one issue that you can silo if you care about women or you care about pregnant people.
how we think about sex and power is profoundly related to how power is mobilized and deployed in society By our. Politicians as a whole.
Suzanne Dressler: That makes sense.
Scott Ruskay-Kidd: The last thing I would say is that, I start off by saying the one thing which I feel is underappreciated, and I wish more Americans knew that abortion was legal, at our founding and for so long after, there is a tendency also in American culture not to appreciate that the whole enterprise.
That lawyers call originalism. This idea that we should interpret our constitution and structure our laws the way we did back in the 17 hundreds. That's not how we've always done law that was invented around the 1970s or 1980s when it first was talked about. It was laughed at as a fringe theory. It has become almost unquestionable.
That's how we do law. That's the way judges should judge. That's the way people should think about their legal commitments as a society. That is not the way America has always done it. And if you look at Brown versus Board of Education, if you look at the 1970s decisions saying. Women are equal.
If you look at the decisions of the last 20 years saying queer people are equal, none of these can be fit. Into the rubric of originalism. there's a hundred other things. the ability of the federal government to print paper money, countless laws related to the environment and work and the regulatory state that didn't exist at the time of rural American, the 17 hundreds.
I wish America would think not just more seriously about the history of abortion in the 17 or 18 hundreds. The fact that our legal culture used to have, a way of asking, not just what were the prejudices and limitations of people in the 17, hundreds and 18 hundreds, but what were the broadly worded promises of liberty?
Equality, they made. why were those broadly worded and what would those promises mean? if we take them seriously as applicable in the modern age to women and people of all races and genders. Um, I wish there was more of a thread of that, mode of thinking about constitutionalism, fair-minded constitutionalism in our culture and less of a,
Automatic acceptance of this idea as if it had always been the case. That originalism is how we do law and how we think about justice.
Suzanne Dressler: That's really interesting. Thank you for sharing that. Well, thank you so much for doing this, Scott. This was very informative for me. if anyone who's listening wants to learn more about personhood and the history like you discussed at the beginning of, the episode, what are some sites you would recommend?
For the center, follow up
Scott Ruskay-Kidd: and send those to you after the podcast.
Suzanne Dressler: That's great. Okay. Thank you so much. Thank you.